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EXHIBIT 10.05
Confidential Treatment Requested
DEVELOPMENT AND LICENSE AGREEMENT
This Development and License Agreement (the "Agreement") is made and
entered into as of the 14 day of May, 1999, by and between Neoforma, Inc., a
corporation organized and existing pursuant to the laws of the State of
Delaware, with principal offices at 0000-0 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 ("Neoforma") and Emergency Care Research Institute, a nonprofit
corporation organized and existing pursuant to the laws of the Commonwealth of
Pennsylvania, with principal offices at 0000 Xxxxxx Xxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx 00000-0000 ("ECRI").
RECITALS
WHEREAS, ECRI is an international nonprofit health services research
agency which is extensively involved in various aspects of healthcare, and
particularly in the review, categorization, assessment, evaluation, rating,
organization and monitoring of healthcare and medical technology;
WHEREAS, ECRI owns and maintains an extensive coding system known as the
Universal Medical Devices Nomenclature System (hereinafter called "UMDNS") and
an extensive international database of medical device manufacturers, products,
and related data elements known as Sourcebase, both of which constitute
valuable, proprietary intellectual property rights of ECRI;
WHEREAS, Neoforma is in the business of providing medical product and
technology-related information to users of medical products and technology
through its Internet web site;
WHEREAS, Neoforma wishes to obtain and ECRI wishes to grant
non-exclusive rights to Neoforma to use certain data elements of the Sourcebase
and certain ECRI Content and Services (as hereinafter defined) for the purpose
of promoting the use of this information through and by way of Neoforma's
Internet web site; and
WHEREAS, Neoforma and ECRI (each a "Party" and collectively, the
"Parties") wish to jointly develop and market an equipment Planning System (as
defined below) and to use such in accordance with the terms of this Agreement;
NOW THEREFORE, with the foregoing recital incorporated by reference, in
consideration of the premises and mutual covenants hereinafter contained, the
Parties hereto agree as follows:
1. DEFINITIONS.
1.1 "Deliverables" means the various content, databases,
data, product information and similar materials being provided by ECRI to
Neoforma (including the ECRI Content and Services to the extent actually
delivered to Neoforma) for use or incorporation in
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the Planning System, or otherwise incorporated into or linked to the Neoforma
Web Site (defined below), as are more further and specifically set forth in the
Development Schedule.
1.2 "Development Schedule" means the development schedule
for developing, producing and commencing operation of the Planning System set
forth in Exhibit A.
1.3 "ECRI Content and Services" means databases, written
content, study and survey results, analysis and similar information relating to
healthcare and medical products created and maintained by ECRI, whether
currently in existence or developed in the future, consisting of the information
set forth in Exhibit D.
1.4 "ECRI Web Site" means ECRI's Internet web sites
accessible through the URLs xxx.XXXX.xxx, xxx.xxxxxxxxxx.xxxx.xxx and
xxx.xxxxx0x.xxx or such other URL or URLs as ECRI may in its discretion
determine and any other web sites which may be developed and owned by ECRI
hereafter which serve essentially the same function as such existing ECRI Web
Site.
1.5 "Effective Date" means the date of this Agreement.
1.6 "Integration" means the integration of selected and
agreed upon ECRI Content and Services into the Neoforma Web Site.
1.7 "Intellectual Property Rights" means all current and
future patent rights, copyrights, mask work rights, trade secrets and other
intellectual property rights.
1.8 "Neoforma Web Site" means Neoforma's Internet web site
accessible through the URL xxx.xxxxxxxx.xxx or such other URL or URLs as
Neoforma may in its discretion determine and any other web sites which may be
developed and owned by Neoforma hereafter which serve essentially the same
function as such existing Neoforma Web Site.
1.9 "Neoforma Content" means any text, graphics, design,
photography, artwork, audio, video or other forms of expression which exist now
or in the future on the Neoforma Web Site to the extent they do not consist
solely of data or information provided by ECRI to Neoforma as Deliverables
pursuant to this Agreement.
1.10 "Planning Advertising Model Projections" means that
percentage of total revenue derived from advertising or other fee generating
activities of Neoforma in operating the Planning System Application Advertising,
which percentage and manner of calculating the same is set forth in Exhibit B.
1.11 "Planning Application Advertising Model" means the
planning system as further described in Exhibit C.
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1.12 "Planning System" means the jointly owned and developed
database of healthcare facility planning information and it does not include the
software applications built off the Planning System.
1.13 "Planning Application Subscription Model" means the
CD-ROM or web based customizable software.
1.14 "Sourcebase" means ECRI's proprietary product known as
Sourcebase, which consists of an international database of medical device
manufacturers and suppliers along with an extensive set of data elements, such
as company names, addresses, telephone numbers, facsimile numbers, URLs and
e-mail addresses of such manufacturers and lists of their respective products
indexed according to UMDNS-related synonyms, as such database may be revised,
updated and improved from time to time by ECRI.
1.15 "Sourcebase CD-ROM" means the CD-ROM version of the
Sourcebase with such additional data elements as may be added to the Sourcebase
from time to time by ECRI.
1.16 "Sourcebook" means the hard copy printed version of the
Sourcebase in its current form and in such future forms as may exist, published
by ECRI which includes listings of medical device manufacturers and suppliers
with such data elements as it currently includes and as may be added from time
to time.
1.17 "Specifications" means any and all specifications
provided by Neoforma to ECRI relating to the form, format, arrangement,
configuration, layout, code type, etc. of the ECRI Content and Services being
provided by ECRI to Neoforma to carry out the purposes of this Agreement,
including but not limited to, those for the Sourcebase, which are set forth in
Exhibit D and those for the Deliverables relating to the Planning System, which
are as set forth in Exhibit A.
2. SOURCEBASE.
2.1 Sourcebase Delivery Obligations. ECRI will deliver the
agreed upon data elements of Sourcebase to Neoforma in such format and together
with such ancillary materials as are set forth in Exhibit D as soon as
practicable, but in no event not later than 60 calendar days following the
execution of this Agreement. Following the date of this Agreement, ECRI agrees
that it shall deliver to Neoforma, any and all revisions, updates or
improvements to such data elements of the Sourcebase at mutually agreed upon
times.
2.2 Vendor Information for Sourcebase Received Through
Neoforma Web Site. Neoforma shall provide to ECRI all information which it
receives through the Neoforma Web Site which it, or the party supplying such
information, desires be included in the Sourcebase for ECRI's review, analysis
and approval for inclusion in the Sourcebase. ECRI agrees to use its best
efforts to review and analyze such information promptly and to notify
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Neoforma as to whether or not such information will be included in the
Sourcebase, and if the information is included in the Sourcebase, to provide
Neoforma with any revisions, updates or improvements to the Sourcebase which is
necessitated by such information as provided for in Section 2.1 hereof. Neoforma
shall be permitted to assign special temporary vendor numbers which are
compatible with ECRI vendor numbers to vendors who have not yet been approved
for inclusion in the Sourcebase which permit Neoforma to include such vendors in
its database pending ECRI's approval of such vendors or products for inclusion
in the Sourcebase or with respect to vendors that are enrolled in Neoforma and
not included in the Sourcebase.
2.3 License Grant. ECRI hereby grants Neoforma a
non-exclusive, non-transferable license to use, replicate, copy and display the
data elements from the Sourcebase listed in Exhibit D on the Neoforma Web Site.
Notwithstanding the foregoing, in order to increase traffic to the Neoforma Web
Site and increase revenue for the Planning System and recognizing that Neoforma
will be contributing content included in Sourcebase, ECRI agrees that during the
term of this Agreement and any extensions it shall not directly or through any
third party disseminate the agreed upon data elements of the Sourcebase through
the Internet in furtherance of any e-commerce business engaged in hosting a web
site that processes Internet transactions for selling new or used medical
products that directly competes with Neoforma except through those organizations
with which ECRI has documented preexisting relations as of the Effective Date of
this Agreement. ECRI shall have the right to terminate the restriction contained
in this subsection regarding the limitation on the use of the Sourcebase in
e-commerce (i) following Neoforma's failure to develop Planning System in a
manner consistent with the Development Schedule, (ii) following Neoforma's
failure to use and promote the Planning System, subject to its having a sixty
(60) day period in which to cure such deficiency, (iii) in the event Neoforma is
involved in any bankruptcy proceeding pursuant to Section 7.2 hereof, (iv) in
the event that Neoforma fails to make payments in accordance with Section 6 of
this Agreement, (v) in the event that Neoforma violates the obligations in
Section 6.3 of this Agreement or (vi) if ECRI elects and Neoforma agrees to a
termination or partial termination of such restriction. Notwithstanding the
above, after the first six (6) months of this Agreement, ECRI may at its option
terminate the restriction contained in this subsection for any reason upon
giving Neoforma six (6) months notice prior to any display of the agreed upon
data elements in which event the Annual Fees listed under Section 6.2 shall be
reduced by fifty (50) percent starting at the date of such notice. The Parties
agree that the Neoforma Web Site may include Neoforma's vendors not listed in
Sourcebase provided that Neoforma shall take sufficient steps to assure that any
vendors which shall not have been evaluated or approved by ECRI shall be clearly
delineated from those that have.
2.4 Sourcebook and Sourcebase CD-ROM Promotion. Neoforma
agrees to promote ECRI's sales of the printed Sourcebook and Sourcebase CD-ROM
on the Neoforma Web Site through its displaying references to its availability
and the manner of obtaining it from ECRI on the Neoforma Web Site. ECRI agrees
to promote the Sourcebook and Sourcebase CD-ROM as accessible on the Neoforma
Web Site.
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3. OTHER ECRI CONTENT AND SERVICES.
3.1 Use of ECRI Content and Services. The Parties agree that
Neoforma will reference or promote the ECRI Content and Services on the Neoforma
Web Site. Following the date of this Agreement, ECRI agrees that it shall notify
Neoforma of appropriate new developments of the ECRI Content and Services and
the parties will mutually determine whether such materials will be included on
the Neoforma Web Site.
3.2 Promotion of UMDNS. Neoforma and ECRI agree to work
closely together to continue the development of and to promote the Universal
Medical Device Nomenclature System ("UMDNS"). Neoforma shall map its
categorization scheme on the Neoforma Web Site using the UMDNS and promote UMDNS
on the Neoforma Web Site as being the desired standard. Neoforma shall be
permitted to use the UMDNS definitions to enhance and augment its database
usage. ECRI and Neoforma shall work together to develop new terms and codes
within UMDNS and to improve and refine existing terms and codes , subject to
limits imposed by ECRI's agreements with various third parties,
quasi-governmental and governmental agencies.
4. CO-BRANDING OF PRODUCTS AND SERVICES.
4.1 Co-Branding of Products and Services. ECRI and Neoforma
hereafter agree that they shall work jointly to promote and sell various of the
ECRI Content and Services on the Neoforma Web Site ("Co-branding"). The terms
and conditions of any such Co-Branding arrangements shall be mutually agreed to
in writing by ECRI and Neoforma in the future and copies of such agreements
shall be appended as Exhibit G to this Agreement from time to time hereafter.
4.2 Consideration for Co-branding. The amount of fee payable
to Neoforma for any goods or services sold through Co-branding may vary based
upon various factors to be mutually agreed upon by the parties, including which
party processes the payment for the transaction and the level of participation
of each party in consummating the particular transaction. In the event Neoforma
processes the payment for any transaction it agrees to remit to ECRI such
payment net of any fee it is entitled to no later that thirty (30) days
following the receipt of such payment. Similarly, in the event ECRI processes
the payment for any transaction it agrees to remit any fee owing to Neoforma as
a result of such transaction no later that thirty (30) days following the
receipt of such payment. The party which collected any payments pursuant to this
Co-branding arrangement during the prior month shall remit the aggregate payment
net of any fee (if Neoforma) or fee (if ECRI) along with and sufficient
supporting books and reports for such consideration to the other party together
with such payment or fee.
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4.3 Non-Exclusive Provider. ECRI acknowledges that Neoforma,
without notice to, or consent from ECRI, may enter into other co-brand and
content purchase agreements with providers of healthcare and medical information
or other similar content to that provided by ECRI for purchase, display and/or
access on the Neoforma Web Site except as specified under Section 6.3 of this
Agreement.
5. PLANNING SYSTEM DEVELOPMENT.
5.1 Initial Development. Each Party agrees to work with the
other to design, develop and commence operation of the Planning System and to
provide any Deliverables relating to the Planning System for which it
responsible pursuant to the Development Schedule, which is attached as Exhibit A
and the parties shall mutually develop a schedule for future applications
including but not limited to the Planning Application Subscription Model, which
shall be appended as Exhibits hereto.
5.2 Change Orders. All changes to Specifications relating to
the Planning System will be subject to the mutual agreement of the Parties. The
Parties agree that the Planning System may be implemented over time in
conjunction with the various phases of the Integration. Accordingly, the Parties
agree to periodically update or revise the Specifications and the Development
Schedule to coincide with various phases of the Integration.
5.3 Planning System Fees. The portion of user fees,
advertising revenue or other revenue which ECRI shall be entitled to for the
initial phases of the Planning System are set forth on Exhibit B hereto. The
Parties shall mutually agree in advance as to the such amounts for each future
applications of the Planning System, such as the Planning Application
Subscription Model, such amounts which shall not be less than [*] nor greater
than [*] of subscription, advertising, or other revenue.
5.4 Ownership rights and License Grant. The Planning System
shall be jointly owned by Neoforma and ECRI, and each party shall have the right
to exploit such system subject to the terms and conditions of this Agreement.
Subject to the licenses granted under this section, Neoforma reserves all title
and ownership to the Planning System software and web technology and its
associated intellectual property rights and ECRI reserves all title and
ownership to its internal applications based on the Planning System. During the
term of this Agreement and any extensions and for two (2) years thereafter,
Neoforma grants to ECRI a worldwide, nonassignable, nonexclusive right to use
any and all planning application models and programs developed under this
Agreement, any extensions thereof, or described in any Exhibits hereto.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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6. ADDITIONAL OBLIGATIONS OF THE PARTIES.
6.1 Business practices. To protect and preserve the goodwill
and image of each Party and its respective products, each Party shall (i)
conduct business in a manner that reflects favorably at all times on the other
Party or such Party's products, business reputation or image, and (ii) make no
false or misleading representations regarding the other Party or such Party's
products, business reputation or image. Neoforma agrees to refrain from using or
displaying ECRI's name or any ECRI trademark in a manner that would suggest that
ECRI endorses any medical product or endorses, funds, or accepts funding from
any medical device or pharmaceutical manufacturer. In addition to the foregoing,
each Party's web site shall prominently display a notice regarding the other
Party's conflict-of-interest policies, if any, in a manner and form that is
mutually agreed upon by the Parties.
6.2 Payments. From the date of this Agreement until the one
year anniversary of this Agreement, Neoforma's obligations to pay ECRI shall be
limited to revenue sharing as provided for under this Agreement. During the
second and third years of the term of this Agreement, Neoforma shall pay to ECRI
a nonrefundable fee equal to Six Hundred Thousand Dollars ($600,000) per year
(the "Annual Fee"), which shall be credited against any revenue sharing payments
accruing to ECRI under this Agreement. Such Annual Fee shall be payable by
Neoforma to ECRI in equal monthly installments commencing thirty days after the
first year anniversary of the Effective Date of this Agreement. Revenue sharing
payments shall be payable by Neoforma to ECRI no later than thirty (30) days
following the receipt of any such payment, subject to the aforementioned credit
of the Annual Fee. For a two (2) year period following termination or expiration
of this Agreement, Neoforma shall make royalty payments to ECRI in an amount
equal to and in accordance with the terms of the revenue sharing arrangement
hereunder.
6.3 Restrictions. Neoforma agrees that (i) during the term
of this Agreement, any extension thereof, and sixth (6) months thereafter it
will not directly or indirectly display, license, sell, or otherwise
commercially exploit any medical device nomenclature, coding, product comparison
or product evaluation information that directly compete with ECRI (other than
that created by Neoforma and ECRI under this Agreement), (ii) during the term of
this Agreement, any extensions, and for two (2) years thereafter it shall not
provide or attempt to provide a paper based directory or CD-ROM that competes
with the Sourcebook or Sourcebase, and (iii) in the event that Neoforma is
acquired by or otherwise affiliated with a direct competitor of ECRI during the
two year period following termination or expiration hereof, then the parties
will agree on mutually agreeable compensation formula in addition to all other
rights and remedies under this Agreement; provided that ECRI has performed it
obligations under this Agreement.
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7. TRADEMARK LICENSES.
7.1 Trademark License Grant. ECRI grants to Neoforma a
world-wide, non-exclusive, nontransferable license to use ECRI's trademarks
and/or service marks set forth on Exhibit E.1 (the "ECRI Trademarks") in the
Neoforma Web Site and in any promotional materials distributed by Neoforma with
respect thereto. Neoforma grants to ECRI a world-wide, non-exclusive,
nontransferable license to use Neoforma's trademarks and/or service marks set
forth on Exhibit E.2 (the "Neoforma Trademarks") in the ECRI Web Site and in any
promotional materials distributed by ECRI with respect to the Neoforma Web Site
or any portion thereof or any links to the Neoforma Web Site contained on the
ECRI Web Site.
7.2 ECRI's Rights. Neoforma acknowledges that it has no
proprietary interest in the ECRI Trademarks (other than the license granted
herein). Neoforma's use of the ECRI Trademarks will not create any right, title
or interest of Neoforma in or to the ECRI Trademarks. Neoforma agrees that it
will do nothing inconsistent with ECRI's ownership of the ECRI Trademarks and
that all use of the ECRI Trademarks by Neoforma shall inure to the benefit of
ECRI. Neoforma shall not register or attempt to register the ECRI Trademarks in
any jurisdiction without the prior written permission of an officer of ECRI.
Neoforma agrees to keep ECRI appraised of its manner of using of the ECRI
Trademarks other than as is obvious from a review of the Neoforma Web Site.
7.3 Neoforma's Rights. ECRI acknowledges that it has no
proprietary interest in the Neoforma Trademarks (other than the license granted
herein). ECRI's use of the Neoforma Trademarks will not create any right, title
or interest of ECRI in or to the Neoforma Trademarks. ECRI agrees that it will
do nothing inconsistent with Neoforma's ownership of the Neoforma Trademarks and
that all use of the Neoforma Trademarks by ECRI shall inure to the benefit of
Neoforma. ECRI shall not register or attempt to register the Neoforma Trademarks
in any jurisdiction without the prior written permission of an officer of
Neoforma. ECRI agrees to keep Neoforma appraised of its manner of using the
Neoforma Trademarks.
8. TERM AND TERMINATION.
8.1 Term. This Agreement shall become effective on the
Effective Date and shall remain in full force and effective for a period of
three (3) years from the Effective Date or until terminated pursuant to this
Section 8.
8.2 Events of Default by ECRI. Neoforma shall have the right
to terminate this Agreement and its further obligations hereunder upon the
occurrence of any of the following events of default (subject to ECRI's ability
to cure or remedy such event as described in Section 8.4):
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(a) ECRI is involved in any voluntary or involuntary
bankruptcy proceeding, or any other proceeding concerning insolvency,
dissolution, cessation of operations, or reorganization of indebtedness or has a
receiver appointed over its affairs and the proceeding or appointment is not
dismissed within 60 days;
(b) ECRI becomes unable to pay its debts as they
mature in the ordinary course of business or makes an assignment for the benefit
of its creditors; or
(c) ECRI is in material default of any provision of
this Agreement.
8.3 Events of Default by Neoforma. ECRI shall have the right
to terminate this Agreement and its further obligations hereunder upon the
occurrence of any of the following events (subject to Neoforma's ability to cure
or remedy such events as described in Section 8.4):
(a) Neoforma becomes involved in any voluntary or
involuntary bankruptcy proceeding or any other proceeding concerning insolvency,
dissolution, cessation of operations, or reorganization of indebtedness, or has
a receiver appointed over its affairs and the proceeding or appointment is not
dismissed within 60 days;
(b) Neoforma becomes insolvent or unable to pay its
debts as they mature in the ordinary course of business or makes an assignment
for the benefit of its creditors; or
(c) Neoforma is in material default of any provision
of this Agreement; or
(d) Neoforma transfers its license to, or otherwise
becomes affiliated with, any direct competitor of ECRI, either in the normal
course of business or through the sale of its assets to a third party
8.4 Right to Cure Event of Default. Upon the occurrence of
any event of default entitling a Party to terminate this Agreement (excepting
those events set forth under subsections 8.2 (a) or (b) and 8.3 (a) or (b)
hereof), the non-defaulting Party may send notice of termination, specifying the
nature of the default, to the other Party. The non-defaulting Party shall permit
60 calendar days, following the date of such notice to enable the other Party to
cure the default to the non-defaulting Party's satisfaction. Failure to cure the
default shall result in termination without further notice by the non-defaulting
Party, unless such non-defaulting Party extends the cure period by written
notice or withdraws the default notice; however, in no event shall any such
termination relieve ECRI of its obligations under Section 2.1 of this Agreement.
8.5 Duties Upon Termination. Upon expiration or termination
of this Agreement, each Party shall return or destroy the Confidential
Information (defined below) of the other Party and the trademark and service
xxxx licenses granted in Section 7 hereof shall
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terminate. All amounts owing shall be accelerated and shall become immediately
payable; however, in the event of termination under Section 8 (d) or in the
event that Neoforma fails to make payments as specified under this Agreement,
Neoforma shall be responsible for the balance of any and all unpaid Annual Fees
set forth and as specified. Either Party may request in writing that the other
Party certifies that it has complied with its obligations hereunder. Upon the
termination of this Agreement Neoforma shall have the right to continue using
the UMDNS device terms and codes, Sourcebase manufacturer names, product codes,
and manufacturer street address, e-mail, URL, and phone numbers, but will not
have the right to continue using any other Sourcebase data elements without the
prior written permission of ECRI and the payment of an agreed upon licensing
fee. Following any termination of this Agreement, each Party shall cease in
making any representation or statement to the effect that they remain affiliated
with one another.
8.6 Survival. The rights and obligations of the Parties
pursuant to the following Sections shall survive termination or expiration of
this Agreement for any reason, 5.4, 6.2, 6.3, 8.5, 9.1, 9.2, 10.3, 10.4, 10.5,
11 and 12.
9. OWNERSHIP.
9.1 Neoforma Intellectual Property Rights. Except as
otherwise provided herein, Neoforma shall own and retain all right, title, and
interest in and to any technology or information otherwise developed or created
solely by Neoforma.
9.2 ECRI Intellectual Property Rights. Except as otherwise
provided herein, ECRI shall own and retain all right, title, and interest in and
to any technology, content, data or information otherwise developed or created
solely by ECRI. ECRI grants to Neoforma a perpetual license to use the UMDNS
device terms and codes. ECRI shall be the sole owner of the UMDNS and the
Sourcebase, including but not limited to any adaptations thereof under this
Agreement, and any rights granted to Neoforma herein are for the sole purpose of
allowing Neoforma to exercise its rights under this Agreement. Neoforma shall
place ECRI copyright notices and/or other proprietary legends on the Neoforma
Web Site in a form and manner acceptable to ECRI.
10. WARRANTIES AND INDEMNIFICATION.
10.1 Limited Warranty. Each Party warrants to the other that
the Deliverables made by it to the other will substantially conform to their
relevant Specifications.
10.2 Disclaimer of Warranties. THE FOREGOING WARRANTIES ARE
THE SOLE WARRANTIES EXPRESS OR IMPLIED GIVEN BY EACH PARTY TO THE OTHER IN
CONNECTION WITH ITS DELIVERABLES AND EACH PARTY DISCLAIMS ALL OTHER WARRANTIES
TO THE OTHER, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
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10.3 Proprietary Rights Warranties. Each Party warrants to
the other that it has the necessary rights to grant the licenses granted herein
without violating or infringing upon the patents, trade secrets, trademarks,
service marks or copyrights of third parties.
10.4 ECRI Intellectual Property Rights Indemnity.
(a) ECRI shall indemnify and hold harmless Neoforma,
its officers, directors, and employees against any claims, actions or demands
arising from the breach of the warranty in Section 10.3.
(b) This obligation is contingent upon (1) Neoforma
giving prompt written notice to ECRI of any such claim, action or demand, (2)
Neoforma allowing ECRI to control the defense and related settlement
negotiations and (3) Neoforma fully assisting in the defense so long as ECRI
reimburses Neoforma for its reasonable expenses and employee time.
(c) In the event that any such claim, action, or
demand is made against Neoforma, Neoforma will promptly furnish ECRI with copies
of any and all documents (inclusive of all correspondence and pleadings other
than attorney-client communications) pertaining thereto. Neoforma will also keep
ECRI continuously and fully informed in a timely manner as to the status of the
same and will provide ECRI with copies of any additional documents pertaining
thereto.
10.5 Neoforma Intellectual Property Right Indemnity.
(a) Neoforma shall indemnify and hold harmless ECRI,
its officers, directors, and employees against any claims, actions or demands
arising actual or alleged infringement of any patent, trade secret, trademark
service xxxx, copyright or other proprietary right by Neoforma or Neoforma's Web
Site.
(b) This obligation is contingent upon (1) ECRI
giving prompt written notice to Neoforma of any such claim, action or demand,
(2) ECRI allowing Neoforma to control the defense and related settlement
negotiations and (3) ECRI fully assisting in the defense so long as Neoforma
reimburses ECRI for its reasonable expenses and employee time.
(c) In the event that any such claim, action, or
demand is made against ECRI, ECRI will promptly furnish Neoforma with copies of
any and all documents (inclusive of all correspondence and pleadings other than
attorney-client communications) pertaining thereto. ECRI will also keep Neoforma
continuously and fully informed in a timely manner as to the status of the same
and will provide Neoforma with copies of any additional documents.
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11. LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY ARISING OUT OF
A BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT SET FORTH IN
SECTION 12 HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, LOSS OF MARKET OR OPPORTUNITY AND/OR INCIDENTAL OR CONSEQUENTIAL LOSS
OR DAMAGE HOWSOEVER ARISING IN CONNECTION WITH THE SUBJECT MATTER OF THIS
AGREEMENT, PURSUANT TO ANY CLAIM IN CONTRACT, NEGLIGENCE, TORT, STRICT
LIABILITY, OR OTHER THEORY.
12. CONFIDENTIALITY.
12.1 Confidentiality.
(a) "Confidential Information" is any information
disclosed by one Party to the other in connection with this Agreement and which
the receiving Party knows or has reason to know is regarded as confidential
information by the disclosing Party. The Confidential Information will include,
but will not be limited to, trade secrets, the structure, sequence and
organization of the source code of computer software, marketing plans,
techniques, processes, procedures and formulae. For each item of Confidential
Information, the Party disclosing the item shall be called the "Disclosing
Party," and the Party receiving the item shall be called the "Receiving Party."
(b) The Receiving Party shall hold all Confidential
Information of the Disclosing Party in trust and confidence, and protect it as
the Receiving Party would protect its own confidential information (which, in
any event, shall not be less than reasonable protection) and shall not use such
Confidential Information for any purpose other than that contemplated by this
Agreement. Unless agreed by the Disclosing Party in writing, the Receiving Party
shall not disclose any Confidential Information of the Disclosing Party, by
publication or otherwise, to any person other than employees and contractors
(such as contract manufacturers or software developers) who (i) are bound to
written confidentiality obligations consistent with and at least as restrictive
as those set forth herein and (ii) have a need to know such Confidential
Information for purposes of enabling a Party to exercise its rights and perform
its obligations pursuant to this Agreement. The foregoing confidentiality
obligation shall be effective for a period of five (5) years after first
disclosure of the Confidential Information pursuant to the terms of this
Agreement, provided however, that each Party will comply with any obligations of
confidentiality as may be imposed pursuant to agreements with third parties for
longer periods (each Party hereby shall disclose to the other in writing such
obligations of confidentiality that may be imposed pursuant to such agreements
with third parties at the time of disclosure).
12.2 Exceptions. The obligations specified in this Section 12
shall not apply to any Confidential Information to the extent that:
(a) it is already known to the Receiving Party
without restriction prior to the time of disclosure by the Disclosing Party;
12
13
(b) it is acquired by the Receiving Party from a
third party without confidentiality restriction and does not originate with the
Disclosing Party;
(c) it is independently developed or acquired by the
Receiving Party by employees or contractors without access to such Confidential
Information;
(d) it is approved for release by written
authorization of the Disclosing Party;
(e) it is in the public domain at the time it is
disclosed or subsequently falls within the public domain through no wrongful
action of the Receiving Party;
(f) it is furnished to a third party by the
Disclosing Party without a similar restriction on that third party's right of
disclosure;
(g) it is disclosed pursuant to the requirement of a
governmental agency or disclosure is permitted or required by operation of law,
provided that the Receiving Party uses its best efforts to notify the Disclosing
Party in advance of such disclosure and seeks confidential treatment for such
Confidential Information.
12.3 Confidentiality of Agreement. Each Party agrees that the
terms and conditions of this Agreement shall be treated as Confidential
Information; provided that each Party may disclose the terms and conditions of
this Agreement: (a) to legal counsel; (b) in confidence, to accountants, banks,
and financing sources and their advisors; and (c) in confidence, in connection
with the enforcement of this Agreement or rights under this Agreement.
13. JURISDICTION AND APPLICABLE LAW.
13.1 Arbitration. Any claim, dispute, or controversy arising
out of or in connection with or relating to this Agreement or the breach or
alleged breach thereof will be submitted by the Parties to arbitration by the
American Arbitration Association in the County of Santa Xxxxx, State of
California, United States of America under the commercial rules then in effect
for that Association, except as provided herein. The Parties hereby submit to
the jurisdiction of, and waive any venue objections against such tribunal. Each
Party will choose one arbitrator within 30 days of receipt of the notice of
intent to arbitrate. Within 60 days of receipt of the notice of intent to
arbitrate, the two arbitrators will choose a neutral third arbitrator who will
act as chairman. If no arbitrator is appointed within the times herein provided,
or any extension of time which is mutually agreed upon, the Association will
make such appointment within 30 days of such failure. The Parties will be
entitled to discovery as provided in Sections 1283.05 and 1283.1 of the Code of
Civil Procedure of the State of California or any successor provision, whether
or not the California Arbitration Act is deemed to apply to the arbitration. The
award rendered by the arbitrators will include costs of arbitration, reasonable
attorneys' fees, and reasonable costs for expert and other witnesses,
13
14
and judgment on such award may be entered in any court having jurisdiction
thereof. Nothing in this Agreement will be deemed as preventing either Party
from seeking injunctive relief (or any other provisional remedy) from any court
having jurisdiction over the Parties and the subject matter of the dispute as
necessary to protect either Party's name, proprietary information, trade
secrets, know how, or any other proprietary rights.
13.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the United States and the State of California.
14. FORCE MAJEURE.
If the performance of this Agreement or any obligations hereunder is
prevented, restricted, or interfered with by the reasons of acts of God, acts of
an governmental authority, riot, revolution, fires, or war, or other cause
beyond the reasonable control of the Parties hereto ("Force Majeure"), the Party
so effected shall be excused from such performance until such Force Majeure is
removed, provided that the Party so effected shall use its best efforts to avoid
or remove such causes of non-performance and shall continue performance
hereunder with the utmost dispatch whenever such causes are removed.
15. MISCELLANEOUS.
15.1 Audit Rights. Each Party shall retain the supporting
books and records for each period for at least three (3) years after the
submission of the corresponding payment referenced in this Agreement. Upon ten
(10) business days prior notice to a Party (the "Examined Party"), the other
Party ("Examining Party") and its representatives may have access to the
Examined Party's books and records to conduct an audit (an "Examination") on a
semi-annual basis during the term of the Agreement, for the purpose of verifying
the accuracy of payments and compliance with this Agreement. Examinations shall
be conducted during regular business hours, shall not unreasonably interfere
with an Examined Party's normal business and shall last no longer than three (3)
business days. Prior to conducting an Examination, each auditor shall sign any
confidentiality agreement reasonably requested by the Examined Party. The
auditors shall report to both Parties only whether there has been any
underpayment and, if so, the amount thereof. Such Examination shall be solely at
the Examining Party's expense. However, if the Examined Party has underpaid the
Examining Party by more than five percent (5%) for any continuous three (3)
month period under Examination, then the Examined Party shall be responsible for
prompt payment of the cost of such Examination, in addition to payment of the
discrepancy amount.
15.2 Compliance with Export Control. The Parties agree not to
export or re-export, directly or indirectly, (i) any technical data received
from the other Party pursuant to this Agreement, or (ii) any product, process,
or technical data using such received technical data, to any country to which
such export or re-export is restricted or prohibited by United
14
15
States or other relevant laws, without obtaining prior written authorization
from the relevant government authorities as required by such laws.
15.2 Waiver. Any waiver of breach or default pursuant to this
Agreement shall not be a waiver of any other subsequent breach or default.
Failure or delay by either Party to enforce any term or condition of this
Agreement shall not constitute a waiver of such term or condition.
15.3 Severability. To the extent that any provision of this
Agreement is found by a court of competent jurisdiction to be invalid or
unenforceable, that provision notwithstanding, the remaining provisions of this
Agreement shall remain in full force and effect and such invalid or
unenforceable provision shall be deleted.
15.4 Assignment. Neither party may assign, voluntarily, by
operation of law, or otherwise, any rights or delegate any duties under this
Agreement (other than the right to receive payments) without the other Party's
prior written consent, and any attempt to do so without that consent will be
void. This Agreement will bind and inure to the benefit of the Parties and their
respective successors and permitted assigns.
15.5 Authority. Each Party warrants to the other Party that
it has the authority to enter into this Agreement and that all necessary
corporate or other approvals have been or will be obtained.
15.6 Notices. Any notice required or permitted pursuant to
this Agreement shall be in writing delivered by hand, overnight courier,
telecopy, facsimile, or certified or registered mail to the address listed below
and shall be effective upon receipt:
Notices to Neoforma:
Neoforma, Inc.
0000-0 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxx X. Xxxxxxxxxxx, Esq.
Pepe & Hazard LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Notices to ECRI
Emergency Care Research Institute
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
15
16
With a copy to:
-----------------------------------
-----------------------------------
-----------------------------------
15.7 Amendment. No alternation, waiver, cancellation, or any
other change or modification in any term or condition of this Agreement, or any
agreement contemplated to be negotiated or reached pursuant to the terms of this
Agreement, shall be valid or binding on either Party unless made in writing and
signed by duly authorized representatives of both Parties.
15.8 Counterparts. This Agreement may be executed in one or
more counterparts, including facsimiles, each of which shall be deemed to be a
duplicate original, but all of which, taken together, shall be deemed to
constitute a single instrument.
15.9 Entire Agreement. The terms and conditions herein
contained, including all Exhibits hereto, constitute the entire agreement
between the Parties with respect to the subject matter of this Agreement and
supersede any previous agreements and understandings, whether oral or written,
between the Parties hereto with respect to the subject matter hereof.
15.10 Construction. This Agreement is the product of
negotiation between the Parties and their respective counsel. This Agreement
will be interpreted fairly in accordance with its terms and conditions and
without any strict construction in favor of either Party. Any ambiguity shall
not be interpreted against the drafting Party.
15.11 Press Releases. The parties agree that they will
cooperate in preparing and releasing a joint press release, at the launch of the
developments provided for in this Agreement and in connection with the release
of any new significant development, that will include, among other things, the
following: a quote from an officer of each Party, standard language as is
customarily required by ECRI in such press releases, a Press contact and ECRI
and Neoforma trademark and service xxxx information. Each party must provide
prior approval of any such release.
16
17
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the Effective
Date.
Neoforma, Inc. Emergency Care Research Institute
By: /s/ Xxxxx XxXxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- -------------------------------------
Name: Xxxxx XxXxxxxx Name: Xxxxx X. Xxxxxxx
Title: Vice President Title: Vice President
Date: May 14, 1999 Date: May 14, 1999
17
18
NEOFORMA, INC.
0000-0 XXXXX XXXXXXXXX
XXXXX XXXXX, XXXXXXXXXX 00000
August 23, 1999
VIA FACSIMILE
Xxxxxxx X. Xxxxxxxxxx, Vice President
of Technology Planning
Xxxxx X. Xxxxxxx, Vice President
of Legal Affairs and Risk Management Services
Emergency Care Research Institute
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Fax No. 000-000-0000
Re: Modification to Development and License Agreement
Dear Xxxx and Xxxxx:
This letter is intended as an offer to modify the Development and
License Agreement by and between Emergency Care Research Institute ("ECRI") and
Neoforma, Inc. ("Neoforma") dated May 14, 1999 (the "Agreement"). This offer is
entirely subject to the approval of Neoforma's board of directors. In the event
you are agreeable to the terms of this letter, please execute a copy of it and
return it to me. I will then present it to Neoforma's board of directors for
approval, and if such approval is given this letter shall serve to modify the
agreement.
Defined terms which are not defined in this letter shall have the same
meanings as were given to them in the Agreement.
At such time as this offer is accepted by ECRI and approved by
Neoforma's board of directors, the Agreement shall be modified to expand the
definition of ECRI Content and Services and develop the terms of the Co-branding
arrangement as follows:
(i) Exhibit F to the Agreement shall be replaced by the
revised Exhibit F, attached hereto, which expands the definition of
"ECRI Content and Services" contained in Section 1.3 of the Agreement to
include the ECRI products listed on the attached Exhibit F.
19
Xxxxxxx X. Xxxxxxxxxx, Vice President
Xxxxx X. Xxxxxxx, Vice President
August 23, 1999
Page 2
(ii) The attached Exhibit G.1 shall be added as Exhibit G.1
to the Agreement so as to set forth additional terms and conditions of
the Co-branding arrangements between ECRI and Neoforma.
Should you wish to accept this offer please execute a copy of this
letter below and return it to me no later than 5:00 p.m. Eastern Time on August
24, 1999. Please do not hesitate to call me should you have any questions
regarding this offer.
Sincerely,
Xxxxxxxxx Xxxxxxxxxx
Chief Financial Officer
Emergency Care Research Institute
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Vice President, duly authorized
20
EXHIBIT A
NEOFORMA - PLANNING SYSTEM DEVELOPMENT SCHEDULE
ADVERTISING REVENUE APPLICATION [*]
-----------------------------------------------------------------------------------------------
DELIVERABLE DUE DATE ECRI ACCEPTANCE CRITERIA ACCEPTANCE PERIOD
-----------------------------------------------------------------------------------------------
[*] [*] None N/A
[*] [*] None N/A
[*] [*] Review how ECRI fields are mapped to
Neoforma fields 1 week
[*] [*] None N/A
[*] [*] None N/A
ECRI - PLANNING SYSTEM DEVELOPMENT SCHEDULE
ADVERTISING REVENUE APPLICATION [*]
-----------------------------------------------------------------------------------------------------
DELIVERABLE DUE DATE NEOFORMA ACCEPTANCE CRITERIA ACCEPTANCE PERIOD
-----------------------------------------------------------------------------------------------------
[*] [*] Review all fields and tables [*]
[*] [*] Able to export data into Neoforma system [*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
21
EXHIBIT B: PLANNING ADVERTISING MODEL PROJECTION
DRAFT COPY NEOFORMA CONFIDENTIAL
5/4/99
FEATURED PRODUCTS REVENUE
FEATURED PRODUCTS APR-99 MAY-99 JUN-99 JUL-99 AUG-99 SEP-99 OCT-99 NOV-99 DEC-99
----------------- ------ ------ ------ ------ ------ ------ ------ ------ ------
Unique room types [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
Featured products per room
Price per product per month
Occupancy rate
Featured services per room
Price per service per month
Occupancy rate
Unique department types
Featured products per department
Price per product per month
Occupancy rate
Featured services per department
Price per service per month
Occupancy rate
NOTED PRODUCTS
Specific rooms
Featured products per room
Price per product per month
Occupancy rate
Total advertising revenue
ECRI partner revenue share
Contingent partner revenue share
TOTAL REVENUE AFTER PARTNERS
TOTAL [*] 1999:
SUBJECT TO ADJUSTMENT BASED ON THE FINAL DELIVERY SCHEDULE
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
22
NOEFORMA CONFIDENTIAL
JAN-00 FEB-00 MAR-00 APR-00 MAY-00 JUN-00 JUL-00 AUG-00 SEP-00 OCT-00 NOV-00 DEC-00
-------------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
23
EXHIBIT C: PLANNING APPLICATION
ADVERTISING MODEL DESCRIPTION
PICASSO SPECIFICATION
Version 2 - 4/22/99 7:00
Table of Contents
1. CURRENT STATUS
1.1 Background
1.2 Status
2. PICASSO NEEDS
2.1 [*]
2.2 [*]
2.3 [*]
3. SPECIFICATIONS FOR PICASSO
3.1 Goals
3.2 Scope
3.3 Users
3.4 List of proposed features
3.5 Feature description and impact analysis
4. EXTERNAL INTERFACES
5. PERFORMANCE
5.1 Availability
5.2 Response time
5.3 Scalability
6. ROLLOUT
6.1 Backwards compatibility
6.2 User notification
7. TEST REQUIREMENTS
7.1 Test documents
7.2 Test schedule
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 1
24
1. CURRENT STATUS
1.1 BACKGROUND
Xxxxxxxx.xxx has always been conceived of as a site to display planning
information as a solution for people working throughout the facility life cycle
(design, planning, outfitting, and occupancy). Planning is also a gateway into
product information and purchasing.
1.1.1 Issues
- [*]
- [*]
- [*]
- [*]
- [*]
1.2 CURRENT STATUS
Xxxxxxxx.xxx currently displays information for 1000 rooms in the Center for
Advanced Medicine in Chicago (CAM). Information includes xxxxxxxxx xxxxxx for
rooms, floor plans, department layouts, room and department descriptions, and
product categories associated with each room. The rooms are searchable; users
can also search for products and find rooms in which those products appear.
2. PICASSO NEEDS
Picasso must provide a way to:
2.1 [*]
2.2 [*]
2.3 [*]
Business requirements for Picasso will be available from this document in future
revisions.
The outline of the revenue model is:
- [*]
- [*]
Attached to this document are suggested business processes and screen
prototypes to help reviewers visualize the application and understand how
Neoforma will support it.
3. SPECIFICATIONS FOR PICASSO FEATURES
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 2
25
3.1 GOALS
The goals for this project are to add planning features and content to
xxxxxxxx.xxx as well, balance load across the site and servers, and develop
revenue streams.
3.2 SCOPE
The scope for this project is substantial and includes:
- [*]
- [*]
- [*]
- [*]
- [*]
- [*]
- [*]
3.3 USERS
The users for this release are all Web site users. A more detailed audience
analysis will be added to this document in later revisions.
3.4 PROPOSED FEATURES
[*]
3.4.1 [*]
3.4.2 [*]
3.4.3 [*]
3.4.4 [*]
3.4.5 [*]
3.4.6 [*]
3.4.7 [*]
3.4.8 [*]
3.4.9 [*]
3.4.10 [*]
3.4.11 [*]
3.4.12 [*]
3.4.13 [*]
3.4.14 [*]
3.4.15 [*]
3.4.16 [*]
3.4.17 [*]
3.4.18 [*]
FEATURE DESCRIPTION AND IMPACT ANALYSIS
More detailed descriptions of each feature follows [*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 3
26
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 4
27
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 5
28
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 6
29
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 7
30
[*]
4. EXTERNAL INTERFACES
There are numerous external interfaces for this project, as each facility
multiple interfaces. In addition, there are 2 new software interfaces. More
detail on this topic will follow in a later revision.
5. PERFORMANCE
5.1 AVAILABILITY
Picasso must be available from xxxxxxxx.xxx 24x7. Neoforma will develop service
availability requirements and maintenance windows. [*] will operate within
these broader site requirements.
5.2 RESPONSE TIME
Acceptable response time should be measured based on 14.4 connect speeds with
the understanding that our users will be short on time and patience. Queries
should be as rapid as possible and tours should be too, but Engineering will
need to determine acceptable performance times.
5.3 SCALABILITY
Picasso must be able to scale to display thousands of rooms in virtual tours
reasonably quickly. More details on scalability will be available in this
document in future revisions. The number of images and their size will affect
performance and will dictate machine resources.
6. ROLLOUT
6.1 BACKWARDS COMPATIBILITY
This project must support our existing Planning implementation.
6.2 USER NOTIFICATION
There are no user notification issues, but we should take advantage of this
opportunity to capitalize on partnerships.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 8
31
7. TEST REQUIREMENTS
7.1 TEST DOCUMENTS
Testing will be based on test documents which will include explicit testing
instructions, site areas to test, features, expected behavior, a description of
how to log bugs, and appropriate contact points for each exercise.
7.2 TEST SCHEDULE
Testing will be conducted over the course of no fewer than 15 business days
with users of varying experience. Exact testing times and the team will be
determined at a later date by QA.
Page 9
32
EXHIBIT D
NEOFORMA - SOURCEBASE DELIVERABLES
-----------------------------------------------------------------------------------------------
DELIVERABLE DUE DATE ECRI ACCEPTANCE CRITERIA ACCEPTANCE PERIOD
-----------------------------------------------------------------------------------------------
[*] [*] None N/A
[*] [*] None N/A
[*] [*] Review how ECRI fields are mapped to
Neoforma fields 1 week
[*] [*] None N/A
[*] [*] None N/A
[*] [*] Able to export data to ECRI system N/A
ECRI - SOURCEBASE DELIVERABLES
---------------------------------------------------------------------------------------------------
DELIVERABLE DUE DATE NEOFORMA ACCEPTANCE CRITERIA ACCEPTANCE PERIOD
---------------------------------------------------------------------------------------------------
[*] [*] Review all fields and tables [*]
[*] [*] Able to export data to Neoforma system [*]
[*] [*] Able to export data to Neoforma system [*]
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
33
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
34
[*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
35
EXHIBIT E: TRADEMARK
E.1. NEOFORMA
Common-law trademarks
Neoforma
The Healthcare Business Community
Statcity
Statworld
Neoforma & Design
Xxxxxxxx.xxx and Design
E.2. ECRI
ECRI
Health Devices Sourcebooks
Health Devices Sourcebase
MedPlanOne
36
EXHIBIT F
ECRI CONTENT AND SERVICES
% OF GROSS
% OF GROSS TO NEOFORMA
TO NEOFORMA IF NEOFORMA
IF ECRI CLOSES
CLOSES TRANSACTION
COMMERCE TRANSACTION (AVAILABLE
QUOTE NOT QUOTE (EFFECTIVE AFTER 9/99
PRODUCT ALLOWED REQUIRED 9/99) RELEASE)
------- --------- -------- ------------ -----------
Year-2000 Services
Year-2000 Medical Device Assessment
Planning Support* [*] [*] [*]
Year-2000 Interactive Telephone Seminar Series [*] [*] [*]
Five Minutes to Midnight: Practical Y2K
Contingency Plans for Healthcare Facilities [*] [*] [*]
Technology Assessment, Planning, Procurement,
and Management
1999 Health Devices Sourcebook [*] [*] [*]
Health Devices System* [*] [*] [*]
Healthcare Product Comparison System* [*] [*] [*]
* In Exhibit F of original Partnership Agreement
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
37
EXHIBIT G.1
TERMS AND CONDITIONS OF CO-BRANDING
The terms and conditions of Co-branding contained in this Exhibit G.1
shall apply to all sales of products comprising the ECRI Content and Services
(as listed on Exhibit F to the Agreement) which occur via the Neoforma Web Site.
In accordance with Section 4.1 of the Agreement, ECRI shall pay to
Neoforma a transaction fee in connection with each sale via the Neoforma Web
Site of each ECRI product appearing on Exhibit F to the Agreement in the amount
(% of Gross) shown on such Exhibit F. The amount of such transaction fee shall
vary in accordance with such Exhibit F depending upon which party processes
payment for such transaction.
[*] For the purposes of this Exhibit G.1, a "renewal" shall be defined as a sale
of any ECRI product which is a continuation of a subscription for such ECRI
product. "Renewal" as used herein shall not include (i) any sale of an ECRI
product made after 120 days of the expiration of the subscription for such
product; or (ii) any sale of an ECRI product to any customer who purchased any
other ECRI product whether such sale occurred prior to or after the date of the
Agreement.
[*] Such agreement shall be evidenced by a contract for the sale of such
product, an invoice for the sale of such product, a purchase order for the sale
of such product, the payment for the sale of such product, or the final
agreement in any other form of ECRI and the party requesting such price quote
for the sale of such product.
Neoforma shall quote only such prices and terms for the ECRI Content and
Services as ECRI shall designate in writing and shall have no right or authority
to grant any discount or make any adjustments. ECRI reserves the right to modify
any prices at any time and to delete, suspend, or modify any of the ECRI Content
and Services at any time; however ECRI will give Neoforma 90 days written notice
of its intent to delete or suspend any of the ECRI Content and Services.
* Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
