BUSINESS SERVICES AGREEMENT
EXHIBIT 10.1
CONFORMED COPY
THIS BUSINESS SERVICES AGREEMENT (this “Agreement”) is made and entered into as of
January 31, 2006 (the “Effective Date”) by and between Emdeon Corporation, a Delaware corporation,
Envoy Corporation (“Business Services”), and Emdeon Practice Services, Inc. (“Practice Services,”
and collectively with Emdeon Corporation and Business Services, “Emdeon”) and WebMD Health Corp., a
Delaware corporation (“WebMD”).
RECITALS
WHEREAS, WebMD is a leading online provider of health information services to consumers,
physicians, healthcare professionals, employers and health plans, through its public and private
online portals;
WHEREAS, Emdeon is a leading provider of revenue cycle management and clinical communication
solutions for payers, providers and patients and through its broad payer and provider relationships
can distribute timely clinical and financial information;
WHEREAS, the parties believe that the trend in healthcare cost shifting to members and
employees is leading payers and employers to take steps to create faster and more effective means
of communicating with individual members and employees as to relevant clinical and financial
information and to provide such persons with additional decision support tools to better manage
their individual health decisions;
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
AGREEMENT
SECTION 1. Clinical Quality Applications
A. External Clinical Quality Applications.
(a) Emdeon provides, and may develop and/or acquire in the future during the term of this
Agreement, online products and services that are principally provided for use as
physician/provider-facing applications or consumer (patient/member) facing applications (ie, those
that are directed online to physicians or to individual consumers/patients/members) that (i)
analyze, assess and report on patient care, and/or (ii) provide clinical quality measures of
physicians, hospitals and other providers, and which include the benefit of the clinical rules
supporting these applications. Those products and services as described in the preceding sentence
are hereinafter referred to as “External Clinical Quality Applications.”
(b) The parties agree that Emdeon’s assets set forth in Section 1.A.(b)(i)-(iii) below, to the
extent they are provided principally for use as physician/provider-facing or consumer-facing
applications as described in the preceding paragraph (hereinafter the “Prism Assets”), are
included within the definition of External Clinical Quality Applications:
(i) PrismMD: Emdeon’s application that provides messaging and other communications
vehicles to provide care alerts to both providers and members. The software also provides
physicians with comprehensive listing of all services provided to patients under their care.
(ii ) PrismReach: Emdeon’s application that offers individual physicians an array of
patient-specific information to better manage their patients and their overall clinical practice,
accessible at the point of care.
(iii) Prism P4P: Emdeon’s application that establishes and maintains Pay for
Performance physician reporting based on quality of care, which may include tools to provide for
scoring methodologies.
(c) Subject to the terms and conditions of this Agreement, Emdeon hereby grants and confirms
having granted to WebMD a perpetual, worldwide license of the External Clinical Quality
Applications to WebMD for use in WebMD’s business as WebMD may determine (the “License”). WebMD
shall have the right to modify, change and update the External Clinical Quality Applications, and
to create derivative works from the External Clinical Quality Products, as it determines in its
sole discretion, and at its expense. The License shall include the software, documentation,
development tools and intellectual property to the extent necessary to provide the External
Clinical Quality Applications, and shall include all maintenance, updates, modifications, and
improvements made to the External Clinical Quality Applications by Emdeon, from time to time (for
which there shall be no additional cost to WebMD). The License to the External Clinical Quality
Applications shall include any third party licenses necessary to deliver such applications to the
extent permitted by the terms thereof, and Emdeon will hold such third party licenses to assure
the rights of WebMD under the License to the extent permissible by the terms thereof. Any
additional fees required to obtain such third party license rights shall be at WebMD’s expense.
Emdeon and WebMD will work together to ensure that the External Clinical Quality Applications
continue to be developed in accordance with WebMD’s reasonable development plans and its business
requirements, subject to Section 1.A.(d) below.
(d) WebMD will have the right to market and distribute the External Clinical Quality
Applications, and in connection with any marketing and sales activities for the External Clinical
Quality Applications, WebMD will provide first level customer service support to its customers for
the External Clinical Quality Applications. To the extent that WebMD requires second level support
for the External Clinical Quality Applications, or if WebMD requires customization or incremental
development in regards to an External Clinical Quality Application, Emdeon will provide such
support at customary rates. In addition, nothing in this agreement is intended to prohibit WebMD
from developing, marketing and selling its own or other third party external clinical quality
applications (with no commission payable to Emdeon). However, WebMD will make commercially
reasonable efforts to market the
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External Clinical Quality Applications to those particular clients or potential clients that WebMD
reasonably determines may have an interest in such products. In addition, Emdeon may from time to
time provide recommendations as to particular clients or potential clients for the External
Clinical Quality Applications.
(e) Emdeon also will be permitted to continue to market the External Clinical Quality
Applications, provided however, Emdeon will not offer the External Clinical Quality Applications as
stand-alone products, but rather may offer and distribute the External Clinical Quality
Applications to its current and potential payer customers in connection with the integration of the
External Clinical Quality Applications with Emdeon core products and services. Emdeon will use
commercially reasonable efforts to avoid channel conflicts in distributing its products as provided
in the foregoing sentence. During the term of this Agreement, Emdeon will not license or provide
External Clinical Quality Applications other than through WebMD Health as provided herein. The
pricing pursuant to which WebMD will make the External Clinical Quality Products available to an
Emdeon customer as provided in this Section 1.A.(e) will be competitive with the pricing it
provides to other similar customers purchasing substantially the same products at the same
volume/commitment levels. The parties acknowledge that based on client preferences, the External
Clinical Quality Applications may be accessible through channels in addition to WebMD Health
properties (i.e, client websites, etc).
(f) The External Clinical Quality Applications are provided to WebMD “as is”, and with all of
Emdeon’s rights in such products and do not include any third party licenses or intellectual
property licensed from any third party, except as provided in Section 1.A.(c). To the best of
Emdeon’s knowledge, the External Clinical Quality Applications do not infringe any intellectual
property rights of any third party as such products are used by Emdeon as of the date hereof.
(g) The parties acknowledge that External Clinical Quality Services exclude Emdeon’s
electronic health record applications (such as those currently offered through Intergy EHR, Intergy
Imaging, Intergy PDA), and other similar applications provided by Emdeon’s Practice Services, as
well as Emdeon’s products which provide for sending and receiving of prescriptions and lab results,
and reasonable extensions of such products hereafter that are consistent with its past practice for
such products.
(h) Within seven (7) days after termination of this Agreement, Emdeon shall provide WebMD with
copies of the Documentation for the External Clinical Quality Applications to the extent necessary
for WebMD to continue to the use of the perpetual license granted to WebMD hereunder. The
“Documentation” regarding the External Clinical Quality Products shall be deemed to consist of the
following:
1. A copy of the software (including source and use code) comprising the External Clinical Quality
Applications, including as to the assets set forth in Section 1.A.(b)(i)-(iii) above;
2. A copy of the records relating to the External Clinical Quality Applications; and
3. A copy of the development tools relating to the External Clinical Quality Applications to the
extent necessary to provide the External Clinical Quality Applications as of such date.
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With the Documentation, Emdeon will also provide any third party license consents necessary
for WebMD to continue to use the External Clinical Quality Applications as in effect immediately
prior thereto (other than off-the-shelf, shrink wrap or other generally available software), or if
such consent cannot be obtained, it shall hold such third party licenses for the benefit of WebMD
to the extent permitted by the terms thereof. Any additional fees required to obtain such third
party license rights shall be at WebMD’s expense.
B. Internal Clinical Quality Services
(a) Emdeon develops, markets, sells and provides, and may in the future develop, market, sell
and provide, products and services that are principally provided for use as payer
facing-applications that provide to payers (i) “clinical” quality measures of physicians,
hospitals and providers, and (ii) analytics and reporting to such payers on the quality of patient
care, in each case, other than through consumer and/or physician/provider facing applications
(collectively, “Internal Clinical Quality Services”). WebMD will be permitted to develop, market,
sell and provide Internal Clinical Quality Services, and WebMD and Emdeon may meet on a regular
basis to discuss potential coordination of marketing efforts for Internal Clinical Quality
Services to particular clients or potential clients. Emdeon may make available to WebMD, Emdeon
Internal Clinical Quality Services for integration with WebMD products and services. The pricing
pursuant to which Emdeon will make the Emdeon Internal Clinical Quality Services available to a
WebMD customer as provided in this Section 1.B.(a) will be competitive with the pricing it
provides to other similar customers purchasing substantially the same products at the same
volume/commitment levels. Notwithstanding the foregoing, WebMD will be permitted to develop, sell
and provide its own services in this area or license and work with third parties for such
services.
SECTION 2. Consumer Directed Applications
(a) Emdeon agrees that applications, tools, products and/or services that are directed through
an online means to individual consumers, patients, or health plan members, as end users, including
those providing a patient or member view of the potential cost of care or financial responsibility
for individual medical and/or drug claims (collectively, “Consumer Directed Applications”) will be
licensed and/or provided by WebMD, other than Permitted Applications as described in Section 2(e)
below, and Emdeon agrees that so long as this Agreement is in effect Emdeon will not license or
provide Consumer Directed Applications except through WebMD.
(b) To the extent that Emdeon identifies in its business a need for a Consumer Directed
Application in order to support a business requirement related to the marketing of its core
services, Emdeon will first present WebMD with the opportunity to meet Emdeon’s requirement for the
Consumer Directed Application with written notice of the terms and specifications and requirements
for the Consumer Directed Application. WebMD will notify Emdeon within thirty (30) days of receipt
of Emdeon’s written notice as to whether or not it elects to provide the Consumer Directed
Application. If WebMD elects to provide the Consumer Directed Application, WebMD will provide the
specifications and parameters for the applicable Consumer Directed Application together with a
reasonable schedule for delivery of the Consumer Directed Application, on a basis consistent with
Emdeon’s business requirements, and Emdeon agrees that WebMD shall be the provider of such Consumer
Directed Application. If WebMD elects not to
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provide the Consumer Directed Application, or after electing to do so and providing a
reasonable delivery schedule, fails to substantially comply with such schedule (after written
notice and a thirty (30) day opportunity to cure such failure), Emdeon may pursue that opportunity
through a third party or on its own, on substantially the same terms as discussed with WebMD.
Emdeon will keep WebMD apprised of its marketing efforts related to Consumer Directed Applications.
(c ) The parties have identified a potential Consumer Directed Application which may provide
information regarding the potential cost of care or financial responsibility for individual
medical and/or drug claims, and agree to work together to develop such a product. However, the
preceding sentence shall not limit either party from developing such product itself. Emdeon agrees
that any Consumer Directed Application that provides a patient or plan member view as to the
portion of the cost of care for which the patient or plan member is responsible, will be provided
and delivered by WebMD, rather than Emdeon, and during the term of the Agreement Emdeon will not
make any such product available itself or through a third party other than in conjunction with
WebMD, subject to the provisions of the preceding paragraph. The parties acknowledge that based
on client preferences such product may be accessible through channels in addition to WebMD Health
properties (i.e, client websites, provider websites, etc).
(d) The parties acknowledge that Consumer Directed Applications, include but are not limited
to, applications and tools that are directed to individual consumers, plan members or patients to
assist such persons in (a) communicating with, or viewing information from, providers, (b)
communicating with, or viewing information from, payors, (c) making informed benefit, provider
and/or treatment choices, through access to content, personal health records, plan comparison
tools, benefit comparison tools, cost treatment indicators, calculators, and/or other tools, or
(d) managing and utilizing consumer directed health plans and the related other health savings and
other consumer directed accounts.
(e) For purposes of this Section 2, the term “Permitted Applications” means (i) the provision
of paper and electronic invoices and statements as currently conducted by the ExpressBill
subsidiary of Emdeon, (ii) the provision of paper and electronic checks and EOBs, (iii) the
patient facing application linked to practice management and EHR system at Emdeon’s Practice
Services segment, as currently contemplated by Emdeon with a third party provider, provided that
notwithstanding the foregoing, Emdeon will also enable WebMD to deliver this solution, (iv)
services performed by Emdeon’s VIPS Government Solutions Group under contracts with the U.S.
Government and/or state governments, (v) distribution of the billing and payment services set
forth in Sections 2(e)(i) and 2(e)(ii) above through, in addition to WebMD, portals that are not
competitive with WebMD; and (vi) reasonable extensions of the products and services referred to in
Section 2(e)(i) —(ii) above that are consistent with its past practice for such products. For
purposes of the preceding Section 2(e)(v), portals that are competitive to WebMD include online
services and websites that provide general consumer online services and portals (including but not
limited to xxxxx.xxx, xxx.xxx and xxxxx.xxx), and other high traffic websites that include
healthcare and non-healthcare related content and services, provided that, without the approval of
WebMD which will not be unreasonably withheld, Emdeon may provide the services in Section 2(e)(i)
and (ii) on portions of such sites that are not health-related. Such competitors also include more
specialized health care related
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providers of online services, tools and applications for health care audiences, such as
xXxxxxxx.xxx, xxxxx.xxx and xxxxxxx.xxx.
SECTION 3. Fees and Payment
(a) Subject to the terms and conditions of this Agreement, beginning on the Effective Date of
this Agreement, WebMD shall pay Emdeon a 20% royalty on the Net Sales of External Clinical Quality
Applications to a third party as provided in Section 1.A.(a) or 1.A.(b) above, or such other
royalty that the parties may otherwise agree in any particular instance.
(b) Subject to the terms and conditions of this Agreement, Emdeon shall pay WebMD a 10% sales
commission on the Net Sales of Internal Clinical Quality Services by WebMD as provided in Section
1.B.(a) above.
(c ) Payments due hereunder are exclusive of any applicable taxes. “Net Sales” shall mean
revenue obtained from the sale or license of the applicable product, less deductions from gross
sales for credits, returns, allowances and other customary discounts, but does not include bad
debts. If a sale of a product to which a royalty or commission applies under this Section 3 is
bundled and priced together with other services as to which no royalty or commission is payable
hereunder, the parties will equitably allocate a portion of the total sales price to the applicable
product as to which the royalty or commission is payable. Any royalties or commissions paid on Net
Sales that are subsequently refunded or rebated for any reason shall be repayable, and may be
deducted from any current or future royalties or commissions payable. Royalty and commission
payments will be made quarterly within thirty (30) days following the end of each quarter. Interest
shall be payable on all late payments in the amount of 1% per month until paid. Each party will
keep accurate records, which are sufficient to calculate all payments due to the other party and
will provide such records to the other party upon request.
(d) For each Consumer Directed Application provided to Emdeon pursuant to Section 2(b) of
this Agreement, the payment to WebMD for such Consumer Directed Application shall be the greater
of: (a) WebMD’s Cost (as defined below) plus 50%; or (ii) WebMD’s established market price for such
product (which price shall be competitive with pricing provided to similar customers purchasing
substantially the same products at the same volume/commitment levels). “Cost” shall mean the full
cost incurred by WebMD to provide the Consumer Directed Application, including its direct costs
incurred, such as labor costs and materials, and an appropriate allocation of indirect costs, such
as allocations for rent, utilities, and corporate overhead, etc. In addition to the foregoing, if,
pursuant to Section 2(b), Emdeon sells any Consumer Directed Application, Emdeon will also pay
WebMD a 10% royalty on Net Sales of such Consumer Directed Applications by Emdeon. In addition, if
the parties develop a patient financial responsibility Consumer Directed Application as provided in
the first sentence of Section 2(c) above, the parties will equitably determine the allocation
between the parties of the sales price for such product.
SECTION 4. Term; Termination
(a) Initial Term. The term of this Agreement shall commence on Effective Date and
shall remain in effect for a period of five (5) years from the Effective Date, unless sooner
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terminated in accordance
with the provisions of Section 4(b) or Section 4(c) and
except as provided in Section 1.A(h). Notwithstanding
termination of this Agreement, after termination of this Agreement, each party shall continue to
pay any royalty or commissions due hereunder relating to a sale contracted during the term of the
Agreement, but provided after termination, but in no event shall such royalty or commission be
payable more than one (1) year after termination of this Agreement.
(b) Termination for breach. In the event either party materially breaches this
Agreement and fails to cure such breach within ninety (90) days following receipt of written notice
describing in reasonable detail the facts and circumstances concerning the breach, the other party
may terminate this Agreement. Notwithstanding the foregoing, if Emdeon alleges a breach by WebMD
of this Agreement and WebMD disputes such allegations of breach, Emdeon agrees to comply with the
terms of this Agreement until such dispute is resolved by the parties or by a determination through
arbitration as provided in Section 10 without prejudice to all remedies available to WebMD.
(c ) Termination by WebMD. At any time during the term of this Agreement, upon thirty
(30) days written notice, WebMD may, in its sole discretion and with or without cause, terminate
(i) the Agreement, (ii) the License under Xxxxxxx 0.X, xxx/xx (xxx) the provisions of Section 2
above.
SECTION 5. Confidential Information
(a) “Confidential Information” means any confidential, trade secret or other
proprietary information disclosed by one party to the other under or in connection with this
Agreement, except for information that: (i) is already known to the receiving party without an
obligation of confidentiality at the time received from the disclosing party, (ii) is developed by
the receiving party independent of the other party’s Confidential Information; (iii) is obtained
from a source other than the disclosing party not known to be subject to an obligation of
confidentiality and without breach of this Agreement; (iv) is in the public domain when received,
or thereafter enters the public domain through no fault of the receiving party; (v) is lawfully
required to be disclosed to any governmental agency or is otherwise required to be disclosed by
law, provided that, before making such disclosure, the receiving party shall give the disclosing
party an adequate opportunity to interpose an objection or take action to assure confidential
handling of such Confidential Information. Each party acknowledges that the other’s customer list
is the Confidential Information of such other party and shall only be used by such party as
provided by the terms of this Agreement.
(b) The receiving party shall: (i) not disclose the Confidential Information to any third
party, other than its employees, agents or independent contractors who are bound, in writing, by
similar confidentiality obligations and who have a need to know such Confidential Information, (ii)
not use the Confidential Information in any fashion except for purposes of performing this
Agreement, and (iii) take steps consistent with its protection of its own confidential and
proprietary information (but in no event exercise less than reasonable care) to prevent
unauthorized disclosure of the Confidential Information.
(c) In the performance of this Agreement, Emdeon and WebMD and their employees,
subcontractors, and other agents may have access to certain Confidential Information
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of each other’s respective clients referred to as “Individual Information.” Individual Information
includes, but is not limited to, information which, in coded or uncoded format, in whole or in
part, relates to patient records or any patient identifiable information, dependents or physicians,
including, without limitation, their respective names, addresses, zip codes, social security
numbers, drug or medical claims data, or other personal data.
(d) Subject to the terms of this Agreement and to applicable law, upon the termination or
expiration of this Agreement, the parties shall promptly return or destroy all Confidential
Information of the other and not retain any copies of the Confidential Information of the other
party.
SECTION 6. Cooperation. During the term of this Agreement and for a period of three
(3) years after termination for any reason, each party shall have the right upon prior notice, and
no more than one (1) time in each calendar year, to inspect any books, records and files maintained
by the other party relating to services under this Agreement in order to verify that the other
party has complied with its obligations under this Agreement as they relate to payment of royalties
and/or commissions, and as they relate to the confidentiality provisions of Section 5 above.
Neither party shall destroy or permit the destruction of (without first having offered to deliver
to the other party) any such books, records and files for the time period during which they would
be required to retain such books, records or files by applicable law. Emdeon and WebMD shall
cooperate with one another in a timely manner in any administrative or judicial proceeding
involving any matter affecting the potential liability of either Emdeon or WebMD hereunder or with
respect to any governmental authority. Such cooperation shall include, without limitation, making
available to the other party, during normal business hours, all books, records and information,
officers and employees (without substantial interruption of employment) necessary or useful in
connection with any inquiry, audit, investigation or dispute, any litigation or any other matter
requiring any such books, records, information, officers or employees for any reasonable business
purpose. The party requesting or otherwise entitled to any books, records, information, officers,
or employees pursuant to this Section shall bear all reasonable out-of-pocket costs and expenses
(except reimbursement of salaries, employee benefits and general overhead) incurred in connection
with providing such books, records, information, officers or employees. The parties will develop
mutually acceptable reporting of activities under this Agreement.
SECTION 7. Disclaimers
(a) in no event shall WebMD or its suppliers or licensors be liable under any theory of
liability, however arising, for any costs of cover or for indirect, special, incidental, or
consequential damages of any kind arising out of this agreement, even if emdeon has been advised of
the possibility of such damages.
(b) except in connection with its indemnification obligations hereunder or its
royalty or commission obligations, WebMD’s aggregate liability for all damages, losses and causes
of action in any way related to this Agreement, whether in contract, tort (including negligence) or
otherwise, either jointly or severally, shall not exceed one million dollars ($1,000,000).
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This section reflects an allocation of risk between the parties, is not a penalty, and shall be exclusive. This
section shall apply despite any failure of essential purpose of any limited warranty or
remedy.
(c) WEBMD REPRESENTS THAT ANY CONSUMER DIRECTED APPLICATIONS PROVIDED TO EMDEON
PURSUANT TO THIS AGREEMENT SHALL COMFORM TO THE SPECIFICATIONS PROVIDED BY WEBMD WITH SUCH
APPLICATIONS. EMDEON REPRESENTS THAT ANY INTERNAL OR EXTERNAL CLINICAL QUALITY APPLICATIONS
PROVIDED BY EMDEON PURSUANT TO THIS AGREEMENT WILL CONFORM TO THE SPECIFICATIONS PROVIDED BY
EMDEON WITH SUCH APPLICATIONS. EXCEPT AS PROVIDED IN THE PRECEDING TWO SENTENCES, NEITHER COMPANY
MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (A) REGARDING THE USEFULNESS,
ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF ITS RESPECTIVE APPLICATIONS;
OR (B) THE AMOUNT OF SALES THAT MAY BE GENERATED FROM THE OTHER’S APPLICATIONS. WITHOUT LIMITING
THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS THAT THE OTHER’S USE OF ITS SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE. THE EXPRESS WARRANTIES IN SECTION 7(c) ARE IN LIEU OF ALL OTHER
WARRANTIES BETWEEN THE PARTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
AND SUCH WARRANTIES ARE HEREBY DISCLAIMED.
SECTION 8. Indemnity.
(a) WebMD will indemnify, defend and hold harmless, at its own expense, any claims, suits,
losses, damages, liabilities, costs, expenses and actions against Emdeon brought by a third party
to the extent that the action is based upon a claim that any Consumer Directed Application, when
used in accordance with this Agreement, infringes any proprietary right of any third party, and
WebMD will pay those costs and damages finally awarded against Emdeon (including reasonable
attorneys’ fees) in any such action that are specifically attributable to such claim or those costs
and damages agreed to in a monetary settlement of such action; provided, however, that WebMD shall
have no obligation pursuant to the foregoing indemnification provision to the extent that any claim
is based on or related to (a) any use of such Consumer Directed Applications in violation of this
Agreement, or (b) any use of such Consumer Directed Applications in conjunction with any product,
data, service, hardware or software not expressly contemplated to be used in conjunction with such
tools. If Emdeon’s use is enjoined by reason of an infringement claim, WebMD’s sole obligation
shall be to either (i) procure the right for Emdeon to continue using the Consumer Directed
Application, (ii) replace or modify the components of the Consumer Directed Application subject to
the infringement claim with non-infringing components of substantially equivalent functionality, or
(c) if neither of the above are available, to refund to Emdeon the commissions paid for access to
such Consumer Directed Application. The foregoing states the entire liability of WebMD with
respect to any infringement claims and Emdeon hereby expressly waives
any other such liabilities.
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(b) Emdeon will indemnify, defend and hold harmless, at its own expense, any claims, suits,
losses, damages, liabilities, costs, expenses and actions against WebMD brought by a third party to
the extent that the action is based upon a claim that the Internal or External Clinical Quality
Applications (collectively the “Clinical Quality Applications”), when used in accordance with this
Agreement, infringe any proprietary right of any third party, and Emdeon will pay those costs and
damages finally awarded against WebMD (including reasonable attorneys’ fees) in any such action
that are specifically attributable to such claim or those costs and damages agreed to in a monetary
settlement of such action; provided, however, that Emdeon shall have no obligation pursuant to the
foregoing indemnification provision to the extent that any claim is based on or related to (a) any
use of such Clinical Quality Applications in violation of this Agreement, or (b) any use of such
Clinical Quality Applications in conjunction with any product, service, data, hardware or software
not expressly contemplated to be used in conjunction with such tools. If WebMD’s use is enjoined
by reason of an infringement claim, Emdeon’s sole obligation shall be to either (i) procure the
right for WebMD to continue using such tools, (ii) replace or modify the components of such tools
subject to the infringement claim with non-infringing components of substantially equivalent
functionality, or (c) if neither of the above are available, to refund to WebMD the commissions
paid by WebMD for access to such Clinical Quality Applications. The foregoing states the entire
liability of Emdeon with respect to any infringement claims and WebMD hereby expressly waives any
other such liabilities.
SECTION 9. Insurance. Each party will maintain in effect during the term of this
Agreement, insurance with at least the following limits:
| • | Xxxxxxx’x Compensation with at least statutory limits; | ||
| • | Employer’s Liability Insurance with limits of not less than statutory limits (except in states in which there are no statutory limits for Employer’s Liability Insurance, then with limits of not less than $1,000,000 each accident, $1,000,000 disease per each employee, and $1,000,000 disease policy limit); | ||
| • | Commercial General Liability Insurance (including, broad form contractual liability coverage for it’s obligations under this Agreement) with limits of not less than: |
—
|
Bodily Injury | $1,000,000 per occurrence, and | ||
| $2,000,000 in the aggregate, and | ||||
—
|
Property Damage | $1,000,000 per occurrence, and | ||
| $1,000,000 in the aggregate; and |
| • | Excess/Umbrella Liability with limits of not less than $3,000,000 per occurrence and $3,000,000 in the aggregate. |
The aggregate minimum limits set forth above are per policy; provided however, that each
policy shall not have a term longer than eighteen (18) months. Each party agrees to provide the
other with a Certificate of Insurance evidencing the coverage required in this Section upon the
other’s written request. All such policies and certificates of insurance shall also require that
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the insurer give the other party not less than thirty (30) calendar days’ advance written
notice of any cancellation in insurance coverage Each party must also provide the other with thirty
(30) calendar days’ prior written notice of any non-renewal of the insurance coverage, cancellation
of any insurance coverage, material change in the insurance policies, and/or reduction in limits.
SECTION 10. Miscellaneous.
(a) Existing Third Party Agreements. Nothing in this Agreement is intended to
require either party to terminate existing contractual relationships with any third party, and such
agreements shall remain in effect on the terms and conditions in existence as of the Effective Date
of this Agreement. Emdeon shall continue to be responsible for delivery of Prism Assets to clients
currently under contract for those services, and shall bear all expenses related to servicing such
clients.
(b) Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of the Agreement was not performed in accordance with the terms
hereof and that the parties hereto shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or in equity.
(c) Amendments and Waivers. Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by
WebMD and Emdeon or, in the case of a waiver, by the party or parties against whom the waiver is to
be effective.
(d) No waiver. No failure or delay by any party in exercising any right, power or
privilege hereunder (other than a failure or delay beyond a period of time specified herein) shall
operate as a waiver thereof and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(e) Notice Generally. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by courier service, by fax or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by notice given in accordance with this
Section 10(e)):
If to Emdeon:
Emdeon Corporation
Envoy Corporation
Emdeon Practice Services, Inc.
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
Envoy Corporation
Emdeon Practice Services, Inc.
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
If to WebMD:
or at such other address as may be substituted by notice given as herein provided.
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(f) Successors and Assigns. The obligations of Emdeon in this Agreement shall apply
to Emdeon Corporation and each of its subsidiaries, Envoy Corp. and Emdeon Practice Services, Inc.
No party shall assign or transfer any of its rights or obligations under this Agreement without the
prior written consent of the other parties. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto as hereinafter provided. In
addition, in the event of any sale, transfer, change of control or other disposition, restructuring
or reorganization of Envoy Corp. or Emdeon Practice Services, Inc. or the business of either
(including by way of stock sale, by sale of all or substantially all its assets or by any other
means or manner or structure) to a third party, such subsidiary and its business shall continue to
be subject to the obligations applicable to its business under this Agreement. The Agreement shall
remain in effect in accordance with its terms regardless of the percentage ownership, if any, that
Emdeon holds of WebMD, and regardless of any sale, transfer, change of control or other disposition
restructuring or reorganization of Emdeon Corporation or WebMD, or either business thereof
(including by way of stock sale, by sale of all or substantially all its assets or by any other
means or manner or structure).
(g) No Third Party Beneficiaries. No person other than the parties hereto and
their successors and permitted assigns are intended or shall be deemed to be a beneficiary of this
Agreement.
(h) Headings. The headings and subheadings in this Agreement are included for
convenience and identification only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
(I) Governing Law; Dispute Resolution. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(i) In an effort to resolve informally and amicably any claim or controversy arising out of or
related to this Agreement or the breach, termination, enforcement, interpretation or validity
thereof, each party shall notify the other of any difference or dispute hereunder that requires
resolution. Emdeon and WebMD shall each designate an executive officer to investigate, discuss and
seek to settle the matter between them. If the two are unable to settle the matter within 30 days
after such notification, or such longer time period as they shall agree upon, either party may
initiate final and binding arbitration, in accordance with Paragraph (ii) of this Section 10(I) to
resolve such matter, which the parties agree is the sole and exclusive procedure for any such
dispute, except as otherwise provided therein. All offers, promises, negotiations, conduct and/or
statements, whether oral or written, made in the course of the settlement
discussions contemplated by this Paragraph (i) by any of the parties, their agents, employees,
experts and/or attorneys are, and shall be deemed, confidential, and made executed and delivered
solely for the purposes of settlement or compromise, and inadmissible for any purpose, including,
without limitation, impeachment, in any arbitration or other proceeding involving the
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parties or any third parties, or in any court or forum whatsoever, provided however that the use of a
statement or information as contemplated in a settlement under this Paragraph (i) that would be
admissible or discoverable shall not be rendered inadmissible or non-discoverable solely as a
result of such use.
(ii) The following process shall be followed if, and after, the informal procedures in
Paragraph (i) above do not result in a resolution of the matter. Any dispute, claim or controversy
arising out of or relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the scope or applicability of
this agreement to arbitrate (collectively, a “Claim”), shall be determined by binding arbitration
in New York, New York before three arbitrators. The arbitration shall be administered (including
selection of the arbitrators) by JAMS (xxx.xxxxxxx.xxx) pursuant to its Comprehensive Arbitration
Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This
clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a
court of appropriate jurisdiction permitted under the terms of this Section 10(I). In the event of
any Claim under this Agreement or the enforcement of any right under this Agreement by either
party, regardless of whether WebMD or Emdeon prevails, Emdeon hereby agrees that Emdeon shall be
responsible for all its own and all of WebMD’s costs and expenses relating thereto, including the
reasonable attorneys fees and expenses of Emdeon’s attorneys and other professionals it may retain
and the reasonable fees and expenses of WebMD’s attorneys and other professionals that WebMD
retains. In addition, the arbitrators will have authority to award special, punitive, exemplary,
consequential, incidental or indirect losses or damages and authority to award a party, subject to
the foregoing sentence regarding Emdeon’s obligation for fees, costs and expenses, regardless of
the prevailing party. The parties hereby agree to submit to the exclusive personal and subject
matter jurisdiction and to the venue of the Supreme Court of the State of New York, County of New
York, for all purposes associated with this Agreement, including the agreement to arbitrate,
enforcing the agreement to arbitrate, and seeking provisional relief pending award and entering
judgment upon the award. Nothing contained in this Section shall preclude the arbitrators from
granting, where appropriate, injunctive or other provisional relief pending a final award.
Notwithstanding the provisions of Section 10, either party may pursue any provisional remedy
(including but limited to preliminary injunctive relief) to either restrain or mandate certain
conduct in the courts designated in this Section. The parties shall have the right to obtain such
provisional injunctive relief from a court of law designated in this Section pending the
determination and award in the arbitration proceeding. In the event that WebMD seeks provisional
injunctive relief pursuant to this section from the court designated herein, then Emdeon agrees
that it may not request nor may the court require any bond or other security to be posted by WebMD
to secure the requested injunctive relief, provided that Emdeon retains any rights it may have to
oppose the injunctive relief on any other grounds. The parties also agree that the arbitrators
shall have the power to determine the amount of the equitable allocation for any sale referred to
in the last sentence of Section 3(d) above in the event of any dispute between the parties as to
such the determination. If JAMS is no longer available or is unwilling to accept the designation provided hereunder, the parties shall
mutually agree upon a substitute professional neutral administrator to replace JAMS.
(j) Severability. If any term or other provision of this Agreement is held to be
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
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conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions is not affected in any manner
materially adverse to any party. Upon a determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
(k) Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.
(l) Independent Contractors. The parties hereto are independent contractors engaged
in the operation of their own respective business. Neither party is, or is to be considered as, the
agent or employee of the other for any purpose whatsoever. Neither party has the authority to enter
into contracts or assume any obligations for the other party or make any warranties or
representations on behalf of the other party. Nothing in this agreement shall be construed to
establish a relationship or joint venturers between the parties.
(m) Cumulative Remedies. The rights and remedies provided by this Agreement are
cumulative and the use of any one right or remedy by any party shall not preclude or waive its
right to use any or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or otherwise.
(n) Further Assurances. Each party will use reasonable best efforts to take or cause
to be taken all action, to do or cause to be done, and to assist and cooperate with the other party
in doing, all things necessary, proper or advisable to consummate the transactions contemplated by
this Agreement, including the execution and delivery of such instruments, and the taking of such
other actions as the other party hereto may reasonably require in order to carry out the intent of
this Agreement.
(o) Construction. Each party hereto acknowledges and agrees it has had the
opportunity to draft, review and edit the language of this Agreement and that no presumption for or
against any party arising out of drafting all or any part of this Agreement will be applied in any
dispute relating to, in connection with or involving this Agreement. Accordingly, the parties
hereto hereby waive the benefit of any rule of law or any legal decision that would require, in
cases of uncertainty, that the language of a contract should be interpreted most strongly against
the party who drafted such language.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.
| EMDEON CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| EMDEON PRACTICE SERVICES, INC. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| ENVOY CORP. |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Senior Vice President | |||
| WEBMD HEALTH CORP. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
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