EX-10.16 4 d46244dex1016.htm EX-10.16 THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. AMENDED...
Exhibit 10.16
THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
AMENDED AND RESTATED MUTUAL LICENSE AND RESELLER AGREEMENT
This Amended and Restated Mutual License and Reseller Agreement (this “Agreement”), effective as of June 26, 2015 (the “Effective Date”), is by and between Allscripts Healthcare, LLC, a North Carolina limited liability company, for itself and its Affiliates (“Allscripts”), and Nant Health, LLC, a Delaware limited liability company (“NantHealth”). Allscripts and NantHealth are sometimes referred to herein as a “Party” and collectively as the “Parties”.
WHEREAS, the Parties entered into that certain Mutual License and Reseller Agreement on May 7, 2015 (the “Original Agreement”), pursuant to which the Parties obtained the right to market, sublicense, and make available each other’s products and services to certain customers on the terms and conditions set forth in the Original Agreement;
“Affiliate” means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Allscripts Competing Provider” means a Person or Persons identified on a Product Schedule for an Allscripts Product that has developed and offers a product that competes with the applicable Allscripts Product identified on such Product Schedule.
“Allscripts Customer Agreement” means a valid written agreement between Allscripts and a person or entity under which Allscripts provides such person or entity with a license or access to the NantHealth Products or NantHealth Services in accordance with this Agreement.
“Allscripts Product Data” means Data concerning a NantHealth Sublicensed Customer or its patients, business or operations that is (i) submitted or uploaded to or placed into an Allscripts Product by a NantHealth Sublicensed Customer or (ii) otherwise collected, stored, processed, generated or output by an Allscripts Product for a NantHealth Sublicensed Customer through use of the Allscripts Product by such NantHealth Sublicensed Customer (such as PHI or de-identified clinical or transaction data). For the avoidance of doubt, Allscripts Product Data does not include Managed Services Data.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Allscripts Products” means the Allscripts products identified in one or more Product Schedules hereto, including any Updates made generally available by Allscripts, whether as Installed Products or SaaS Products.
“Allscripts Prospect” means a prospective Allscripts Sublicensed Customer.
“Allscripts Services” means (a) Support Services and hosting services related to the Allscripts Products provided by Allscripts under this Agreement; and (b) professional services provided by or on behalf of Allscripts related to the Allscripts Products.
“Allscripts Sublicensed Customer” means a person or entity who has executed an Allscripts Customer Agreement with Allscripts.
“Allscripts Sublicensed Customer XXXX” means the license agreement that shall be accepted and agreed to by each Allscripts Sublicensed Customer who will have access to NantHealth Products or NantHealth Services, a copy of which shall be attached as an annex to the applicable Product Schedule and which may be updated from time to time by NantHealth for new Customer Agreements upon reasonable notice to and approval of Allscripts, which approval shall not be unreasonably withheld.
“Audited Party” is defined in Section 14 hereof.
“Auditing Party” is defined in Section 14 hereof.
“Capsule” is defined in Section 2.11 hereof.
“Change of Control” means any of the following: (a) any merger, reorganization, share exchange, consolidation, or other business combination involving a Party and its subsidiaries, other than (i) any acquisition or other similar transaction in which a Party acquires the assets or the securities of another Person and such Party does not issue capital stock of the Party representing more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of such Party, or (ii) any merger or similar transaction effected solely to change the domicile of a Party or any of its subsidiaries; (b) any acquisition by any Person as a result of which such Person (or any group of which such Person is a member) becomes a beneficial owner of more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of a Party in any single transaction or a series of related transactions; (c) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition of all or substantially all of the assets of a Party and its subsidiaries in any single transaction or a series of related transactions; or (d) any exclusive license of all or substantially all of the intellectual property of a Party and its subsidiaries, in any single transaction or a series of related transactions. For purposes of this definition, the term “beneficial owner” has the meaning ascribed to such term in Rules 13d-3 and 13d-5 under the U.S. Securities Exchange Act of 1934, as amended, and the term “group” means two (2) or more Persons acting as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of the applicable securities referred to herein.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Claim” means any claim, action, suit, or proceeding.
“Competing Provider” means any NantHealth Competing Provider or any Allscripts Competing Provider, as the case may be.
“Confidential Information” means non-public information of a Disclosing Party or its Affiliates, including (a) any trade secrets and any information relating to the Disclosing Party’s current and planned products and services, technology, source code, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customer lists, business forecasts, and marketing; (b) any information disclosed in writing that is clearly marked “confidential” or with a similar proprietary notice at the time of disclosure; (c) any information disclosed verbally that is identified as “confidential” or similarly at the time of disclosure, or which, by its nature, a reasonable person would consider confidential; (d) the terms and conditions of this Agreement; (e) Data, including Data and PHI relating to Allscripts and NantHealth customers; and (f) the Disclosing Party’s or its Affiliates’ Products, including associated Documentation, and information provided by the Disclosing Party or its designees as part of the Disclosing Party’s performance of its respective Services.
“Controlled Technology” means any software, documentation, technology, or other technical data, or any products that include or use any of the foregoing, of which the export, re-export, or release to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval under any Law, including the U.S. Export Administration Act and its associated regulations.
“Customer Agreement” means an Allscripts Customer Agreement or a NantHealth Customer Agreement, as the case may be.
“Data” means any data, information, and other content (regardless of whether de-identified) of any type and in any format, medium, or form, whether audio, visual, digital, screen, GUI, or other, that is input, submitted, uploaded to, placed into or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of a Party (or any of its licensors or Affiliates) or any Sublicensed Customer, Managed Services Customer or otherwise relating to a Party (or any of its licensors or Affiliates) or a Sublicensed Customer or Managed Services Customer and arising out of or relating to this Agreement, including any and all data, analyses, and other information and materials resulting from any use of a Party’s Products or Services under this Agreement.
“Documentation” means all user manuals, operating manuals, technical manuals, and any other instructions, specifications, documents, or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical, or other components, features, or requirements of any of either Party’s Products or Services, together with all revisions to such documentation delivered by or on behalf of a Party and as updated from time to time by a Party.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Eligible Allscripts Prospect” means an Allscripts Prospect who is registered and qualified through the registration and approval process described in Section 2.5 hereof.
“Eligible NantHealth Prospect” means a NantHealth Prospect who is registered and qualified through the registration and approval process described in Section 2.5 hereof.
“Eligible Prospect” means an Eligible Allscripts Prospect or an Eligible NantHealth Prospect, as the case may be.
“Error” means any failure of any of a Party’s Products to substantially conform to the Documentation.
“XXXX” means an Allscripts Sublicensed Customer XXXX or a NantHealth Sublicensed Customer XXXX.
“Harmful Code” means (a) any virus, Trojan horse, worm, backdoor, or other software or hardware devices, the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) any time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise prevent, restrict, or impede a Party’s or any Sublicensed Customer’s use of such software or device.
“Installed Products” means a Party’s Products that are designed to be installed on the applicable customer’s local computer systems/servers and all copies of the foregoing permitted hereunder.
“Intellectual Property” means any and all intellectual property rights in any part of the world, whether registered or unregistered, and all applications for and renewals or extensions of such rights, including rights comprising or relating to: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) works of authorship, designs, copyrights, and copyrightable works (including computer programs), and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all similar or equivalent rights or forms of protection.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Level 1 Support” means basic troubleshooting and call triage, as may be more fully set forth on the applicable Product Schedule.
“Loss” means all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, the costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Managed Services Agreement” means a valid written agreement between NantHealth and a person or entity pursuant to which NantHealth provides a Managed Services Offering that utilizes an Allscripts Product or an Allscripts Service.
“Managed Services Customer” means a person or entity who has executed a Managed Services Agreement with NantHealth.
“Managed Services Data” means Data concerning a Managed Services Customer or its patients, business or operations that is (i) submitted or uploaded to or placed into an Allscripts Product in connection with a Managed Services Offering or (ii) otherwise collected, stored, processed, generated or output by an Allscripts Product in connection with a Managed Services Offering through use of the Allscripts Product by NantHealth (such as PHI or de-identified clinical or transaction data).
“Managed Services Offering” means outsourced management and business process services (e.g. care management and practice management services) offered by NantHealth and managed on behalf of a client.
“Marks” means, with respect to a Party, such Party’s trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers, corporate names, meta-tags, and universal resource locators, and any applications, registrations, and renewals thereof.
“NantHealth Competing Provider” means a Person or Persons identified on a Product Schedule for a NantHealth Product that has developed and offers a product that competes with the applicable NantHealth Product identified on such Product Schedule.
“NantHealth Customer Agreement” means a valid written agreement between NantHealth and a person or entity under which NantHealth provides such person or entity with a license or access to the Allscripts Products or Allscripts Services in accordance with the Agreement.
“NantHealth Product Data” means: (a) Data concerning an Allscripts Sublicensed Customer or its patients, business or operations that is (i) submitted or uploaded to or placed into a NantHealth Product by an Allscripts Sublicensed Customer or (ii) otherwise collected, stored, processed, generated or output by a NantHealth Product for an Allscripts Sublicensed Customer through use of the NantHealth Product by such Allscripts Sublicensed Customer (such as PHI or de-identified clinical or transaction data); and (b) Managed Services Data.
“NantHealth Products” means the NantHealth products identified in one or more Product Schedules hereto, including any Updates made generally available by NantHealth, whether as Installed Products or SaaS Products.
“NantHealth Prospect” means a prospective NantHealth Sublicensed Customer or prospective Managed Services Customer.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“NantHealth Services” means (a) Support Services and hosting services related to the NantHealth Products provided by NantHealth under this Agreement; and (b) professional services provided by or on behalf of NantHealth related to the NantHealth Products.
“NantHealth Sublicensed Customer” means a person or entity who has executed a NantHealth Customer Agreement with NantHealth.
“NantHealth Sublicensed Customer XXXX” means the license agreement that shall be accepted and agreed to by each NantHealth Sublicensed Customer who will have access to Allscripts Products or NantHealth Services, a copy of which shall be attached as an annex to the applicable Product Schedule and which may be updated from time to time by Allscripts for new Customer Agreements upon reasonable notice to and approval of NantHealth, which approval shall not be unreasonably withheld.
“Person” means any natural person, corporation, limited liability company, general partnership, limited partnership, trust, proprietorship, joint venture, business organization, or government, political subdivision, agency, or instrumentality.
“Product Schedule” means one or more schedules to this Agreement that contain specific terms relating to the respective Products covered by this Agreement and that, when signed by both parties, shall become a part of this Agreement.
“Products” means Allscripts Products or NantHealth Products, as the case may be.
“Prospect” means an Allscripts Prospect or a NantHealth Prospect, as the case may be.
“Representatives” means a with respect to a Party or its Affiliates, each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, and third-party advisors.
“Sales Activity” means conducting product demonstrations, exchanging proposals, conducting executive sales meetings, or performing similar sales activities. For the avoidance of doubt, a mass mailing or otherwise generalized business solicitation not targeted at a specific Person will not constitute “Sales Activity”.
“Services” means Allscripts Services or NantHealth Services, as the case may be.
“Sublicensed Customer” means an Allscripts Sublicensed Customer or a NantHealth Sublicensed Agreement, as the case may be.
“SaaS Product” means a Party’s software-as-a-service solution that is made available on a hosted basis by or for such Party, including all of the component offerings as may be described in the respective Product Schedule.
“Special Exclusivity Period” shall have the meaning set forth in Section 2.11(d) hereof.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
“Support Services” means technical support, assistance, and maintenance (i.e., provision of Updates) related to a Party’s Products, each as may be more fully set forth in the applicable Product Schedule.
“Term” has the meaning set forth in Section 21 hereof.
“Territory” means, with respect to a product or service, the territory specified on the respective Product Schedule.
“Update” means any revision, modification, enhancement, upgrade, or new feature, functionality, module, or release of the Products, and any patch, bug fix, workaround, or Error correction to the Products, whether created for a Party specifically or released by a Party generally.
The terms “sale,” “seller,” “resale,” and “reseller” and derivations of the words include distribution and delivery of product or services by license, sublicense, or other forms of delivery to an end user. For the avoidance of doubt, Allscripts Products and NantHealth Products are licensed, not sold, and notwithstanding any use of any term to the contrary, in no event will any transaction contemplated by this Term Sheet be construed as a sale or assignment of Allscripts’ intellectual property with respect to Allscripts Products or NantHealth’s intellectual property with respect to NantHealth Products.
2. Appointment as Reseller.
2.1 Allscripts as Reseller.
(a) Subject to the restrictions and obligations set forth in this Agreement, NantHealth hereby appoints Allscripts, during the Term, as non-exclusive reseller of the NantHealth Products and NantHealth Services, with the ability to: (i) market the NantHealth Products and the NantHealth Services to Eligible Allscripts Prospects; (ii) demonstrate the NantHealth Products to Eligible Allscripts Prospects; (iii) make available the NantHealth Products and NantHealth Services to Allscripts Sublicensed Customers consistent with the manner and the medium that NantHealth makes NantHealth Products and NantHealth Services available to its own customers (i.e., SaaS Products will be made available on a SaaS basis; Installed Products will be licensed for local installation by the Allscripts Sublicensed Customer, etc.) and in accordance with the terms set forth in this Agreement, the respective Product Schedule and the applicable XXXX; and (iv) provide Level 1 Support to such Allscripts Sublicensed Customers for the NantHealth Products.
(b) Allscripts may only exercise its rights in Section 2.1a and 6.1 through 6.3 if (a) the prospective Allscripts Sublicensed Customer is an Eligible Allscripts Prospect; (b) Allscripts passes through end-user licensing terms in accordance with this Agreement; and (c) the Customer Agreement with Allscripts contemplates that NantHealth will provide the NantHealth Services contemplated by this Agreement for any NantHealth Products. Furthermore, [***].
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2.2 NantHealth as Reseller.
(a) Subject to the restrictions and obligations set forth in this Agreement, Allscripts hereby appoints NantHealth, during the Term, as non-exclusive reseller of the Allscripts Products and Allscripts Services, with the ability to: (i) market the Allscripts Products and the Allscripts Services to Eligible NantHealth Prospects; (ii) demonstrate the Allscripts Products to Eligible NantHealth Prospects; (iii) make available the Allscripts Products and Allscripts Services to NantHealth Sublicensed Customers consistent with the manner and the medium that Allscripts makes Allscripts Products and Allscripts Services available to its own customers (i.e., SaaS Products will be made available on a SaaS basis; Installed Products will be licensed for local installation by the NantHealth Sublicensed Customer, etc.); and (iv) use and make available the Allscripts Products and Allscripts Services as part of Managed Services Offerings, in each case in accordance with the terms set forth in this Agreement, the respective Product Schedule and the applicable XXXX; and (iv) provide Level 1 Support to such NantHealth Sublicensed Customers for the Allscripts Products.
(b) NantHealth may only exercise its rights in Section 2.2a and 6.1 through 6.3 if (a) the prospective NantHealth Sublicensed Customer or Managed Services Customer is an Eligible NantHealth Prospect; (b) NantHealth passes through end-user licensing terms in accordance with this Agreement; and (c) the Customer Agreement with NantHealth contemplates that Allscripts will provide the Allscripts Services contemplated by this Agreement for any Allscripts Products. Furthermore, [***].
2.3 Customer Agreements and EULAs. An Allscripts Customer Agreement must contain terms and conditions no less protective of NantHealth and its licensors than the applicable terms and conditions related to Allscripts’ applicable products and services, and a NantHealth Customer Agreement must contain terms and conditions no less protective of Allscripts and its licensors than the applicable terms and conditions related to NantHealth’s applicable products and services. In addition, Allscripts agrees to require each Allscripts Sublicensed Customer to execute an Allscripts Sublicensed Customer XXXX, and NantHealth agrees to require each NantHealth Sublicensed Customer to execute a NantHealth Sublicensed Customer XXXX. Neither party may make representations or warranties regarding the other Party’s products or services other than those set forth in the Agreement and/or the then-applicable documentation related to such products or services, if any. In the case of a Managed Services Offering, NantHealth will abide by the terms of the applicable Allscripts XXXX for the Allscripts Products and Services that are part of such Managed Services Offering, provided that the terms of this Agreement shall govern to the extent of any inconsistency between such XXXX and the terms of this Agreement.
2.4 Pricing and Collections. Pricing for the products and services covered by this Agreement will be as set forth in the respective Product Schedule. If pricing is not specified in a Product Schedule or if otherwise requested by a Party on a case-by-case basis for a particular transaction, pricing will be provided on an opportunity by opportunity basis subject to mutual agreement of the Parties and may include (a) both the price each Party shall charge each other and a minimum price that a Party must charge the customer or (b) revenue sharing based on agreed percentages. Subject to the foregoing, each Party will have the right, in its sole discretion, to
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
determine the prices and other terms for any of the other Party’s respective Products or Services resold or made available pursuant to the Agreement, subject to any restrictions expressly set forth in the Agreement or as may be separately agreed in writing by the Parties. Each party will be solely responsible for invoicing and collecting payments with respect to its respective Customer Agreements or, in the case of NantHealth, its Managed Services Agreements.
2.5 Eligible Prospects; Registration.
(a) Reporting; Monthly Channel Review Meetings. Each Party shall provide to the other monthly reports regarding its sales and marketing activities, including names of designated Prospects, sales activities executed and planned, and projections regarding sales closings. The Parties shall meet at least monthly or as reasonably required to review sales activity and any new Prospect designations that require additional review (such meeting, a “Sales Review Meeting”).
(b) Registration Process.
(i) Each Party shall submit its Prospects to the other Party for review and approval. An Allscripts Prospect shall be registered as an Allscripts Eligible Prospect upon the reasonable approval of NantHealth and a NantHealth Prospect shall be registered as a NantHealth Eligible Prospect upon the reasonable approval of Allscripts.
(ii) An Eligible Prospect designation will be valid for [***] from the date such designation is approved. Notwithstanding the foregoing, the Parties shall review any Eligible Prospects whose registration period is expiring within thirty (30) days of the date of such expiration and if the applicable Party can demonstrate through reasonable evidence that, it has conducted reasonable Sales Activity with respect to such Eligible Prospect within the preceding [***], then, subject to the reasonable consent of the other Party, the designation as an Eligible Prospect shall be extended for an additional [***] period.
(iii) The Parties will work together to create a joint electronic deal registration and management process to enable the review of Prospects and otherwise manage sales channel efforts including those described herein.
(iv) Nothing in this Section 2.5 will preclude either Party from re-submitting any former Prospect for consideration as an Eligible Prospect.
2.6 Third Parties. Unless otherwise agreed by the parties on a case-by-case basis, neither Party will authorize or allow any value added reseller, distributor, integrator, OEM partner, or other third party to market, demonstrate, resell, sublicense, or otherwise distribute or make available the other Party’s Products, Documentation or Services.
2.7 Affiliates. To the extent that a Party’s Affiliates utilize the rights granted hereunder, such Party will be responsible for any breach of this Agreement by any such Party’s Affiliates.
2.8 No Other Rights. Except as specifically set forth in this Agreement, no other rights, licenses or entitlements are granted by either Party with respect to such Party’s Products, Documentation or Services. All rights not expressly granted hereunder are reserved by each Party and/or its third party licensors.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2.9 Acknowledgments.
(a) The Parties acknowledge and agree that this Agreement is non-exclusive and imposes no limitations upon either Party’s relationships with other parties or on either Party’s research, development, production, marketing, licensing, reselling, or sales of other products or services, whether or not similar to any of the Products or the Services, so long as such relationships or activities do not violate any express term of this Agreement or utilize any Confidential Information of the other Party in violation of this Agreement.
(b) The Parties acknowledge and agree that neither Party is obligated to provide, and neither Party is entitled to receive, any minimum level of referrals, business, fees, or other consideration under this Agreement, and that neither party makes no promises or commitments regarding its sales and marketing efforts. In no event will anything in this Agreement be construed as an obligation on either Party’s part to market, distribute or make available the other Party’s Products or Services, and each Party may, in its sole discretion, refuse to engage in, or withdraw from, discussions or negotiations with a third party with respect to distributing or making available such other Party’s Products or Services at any time.
(c) Each Party may, in its sole discretion, develop, market, provide, or resell other products and services that directly or indirectly compete with, or otherwise offer the same or similar services or functions, to those of the other Party’s Products, whether developed by or for such Party or by or for third parties, so long as such activities do not violate any express term of this Agreement or utilize any Confidential Information of the other Party in violation of this Agreement.
2.10 Marketing Materials. Each Party agrees to provide, upon reasonable request, its marketing communications materials related to its Products (“Marketing Materials”) to the other Party. Each Party will have the right to use the other Party’s Marketing Materials in their original form as well as the right to create customized versions of the other Party’s Marketing Materials for use in such Party’s marketing efforts. To the extent that a Party uses the other Party’s Marketing Materials in their original form, such Party will not require any approval of such planned uses by the other Party.
2.11 Preferred Partners.
(a) Unless otherwise provided in the applicable Product Schedule, and subject to the last sentence of this Section 2.11(a), a Party shall market to its Eligible Prospects, until the applicable Prospect Expiration Date, the other’s Products and Services as the preferred solutions for the applicable product and service lines and may sell any competing or alternative products to a customer only if the Products and Services do not meet the technical requirements of such Eligible Prospect or if the Eligible Prospect demands a competing or alternative product or service. Notwithstanding the foregoing, the rights granted in this Section 2.11 shall not apply to the extent the reselling Party or its Affiliates has internally developed, is developing or chooses to develop its or their own product or service that can provide comparable functionality to the other Party’s Products or Services.
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THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) Beginning 60 days after [***] (“Exclusivity Date”) for all net new opportunities with respect to medical device integration products similar to DeviceConX, [***] or other similar products (each a “New Opportunity”) but subject to (i) the exceptions noted below with respect to Existing [***] Customers and (ii) DeviceConX being comparable with respect to material features and functionality to similar medical device integration products and services, NantHealth’s DeviceConX family of products and services (as may be renamed and updated from time to time) will be the exclusive medical device integration products and services marketed, offered, sold and distributed by Allscripts and its Affiliates to customers and potential customers that have not, as of such time, already purchased a [***] medical device integration product or service from Allscripts or its Affiliates or not a New Opportunity (“Existing [***] Customers”). Except as necessary for Allscripts to meet its obligations to the Existing [***] Customers, Allscripts further agrees that, during the Term, [***]. Notwithstanding anything to the contrary in the foregoing, Allscripts’ exclusivity commitment would not apply to any Allscripts Prospect whom NantHealth rejects in accordance with this Agreement.
(c) To the extent the Allscripts Products or Allscripts Services have functionality that are appropriate for a Managed Services Offering (e.g., Bank of America), then, for such functionality, during the Term such Allscripts Products and Allscripts Services (as may be renamed and updated from time to time) will be the exclusive products and services marketed, sold or otherwise distributed by NantHealth and its Affiliates as part of the Managed Service Offering except where NantHealth or any of its Affiliates internally has, is developing or chooses to develop its own product or service that can provide comparable functionality (including, for the avoidance of doubt, products and services of businesses or entities that NantHealth may acquire from time to time, such as the healthcare solutions business group of Xxxxxx Corporation). To the extent reasonably necessary, Allscripts agrees to make changes to its XXXX in order to align its terms and the licenses granted thereunder with the particular Managed Service Offering. Notwithstanding anything to the contrary in the foregoing, NantHealth’s exclusivity commitment shall not apply to (i) any NantHealth Prospect whom Allscripts rejects in accordance with this Agreement or (ii) any NantHealth Prospect with respect to whom NantHealth, acting reasonably, requests a price reduction for the Allscripts Products and Allscripts Services to be comparable to a competitive third party product and service, and Allscripts declines to provide such price reduction.
(d) During the one (1) year period following the Effective Date (the “Special Exclusivity Period”), for all net new NantHealth sales opportunities that require functionality that is provided by one of the Allscripts Products listed below in this Section 2.11(d) (each a “New NantHealth Opportunity”), provided such Allscripts Product is comparable with respect to material features and functionality to similar third party products, such Allscripts Product will be the exclusive product marketed, sold or otherwise distributed by NantHealth and its Affiliates to such New NantHealth Opportunity for such required functionality, except where NantHealth or its Affiliates internally has, is developing or chooses to develop its own product or service that can provide comparable functionality (including, for the avoidance of doubt, products and services of businesses or entities that NantHealth may acquire from time to time, such as the healthcare solutions business group of Xxxxxx Corporation). Notwithstanding anything to the contrary in the foregoing, NantHealth’s exclusivity commitment shall not apply to any NantHealth Prospect whom Allscripts rejects in accordance with this Agreement. The Allscripts Products that are subject to the exclusivity commitment made under this Section 2.11(d) are Follow My Health, Care Director, EPSi and dbMotion. Further, the Parties agree that the Special Exclusivity Period shall automatically renew for additional one (1) years periods unless either party provides at least six (6) months prior written notice of its intent not to renew.
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[***]
(e) On an exception basis, in the event an actual or prospective client of a Party requires that such Party joint develop with, or resell the products of, a competitor of the other Party in violation of this Section 2.11, then, upon notice to the other Party’s representative, such Party may do so notwithstanding the fact that such activities would otherwise violate this Section 2.11.
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4. Deal Completion; Fulfillment.
4.3 Configuration and Acceptance.
(a) As part of professional services, each Party agrees to assist the other in conducting configuration and acceptance testing of the Products, if and as requested or required by a Sublicensed Customer (or by NantHealth in the case of Managed Services Offering), in order to ensure that the Products are fully operable, meet all applicable specifications, and will function in accordance with the Documentation when properly installed and used for its intended purpose. In such cases, the Parties will, in good faith, mutually agree upon reasonable acceptance testing procedures and criteria with such Sublicensed Customer (or as between Allscripts and NantHealth in the case of a Managed Services Offering) and to determine a reasonable period during which the Party will remedy any defects. A Party will re-submit the Products to the other and (if applicable) such Sublicensed Customer or NantHealth, as applicable, for further testing. This process will be repeated until acceptance or final rejection.
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4.5 Requests for White Label Products.
(a) A Party may request a white label version of the other Party’s products licensed hereunder on a case by case basis. The Party requesting a white label version of the other Party’s products shall provide the other with a written request identifying the applicable products, the extent of the white labeling required, the relevant customer, and any other reasonable information that would assist the non-requesting Party in evaluating the white label request.
(b) If the white label request is limited to a request for white labeling at the user interface level, the Parties shall work in good faith to determine the feasibility of the request and whether to mutually agree on the estimated scope and timeline of work associated with such request, the Parties (and potential Customer’s) anticipated work efforts, fees associated with the white label development to be paid by the requesting Party, and any additional requisite terms and conditions (e.g., IP terms, additional support or implementation terms that may be necessary, etc.). Without limiting the generality of the foregoing, due to the complexity and dependencies of the different products, and due to the need to generate and maintain a white-labeled version of such products, unless otherwise agreed by the parties on a case-by-case basis, any white label request will require at least twelve (12) months advance notice prior to expected customer delivery.
(c) If the white label request would require development beyond the user interface level, the non-requesting Party may agree to work in good faith to scope the project in the manner contemplated by Section 4.5(b) or may decline to perform any additional work in connection with the opportunity.
(d) Neither Party shall have any commitment to create a white label version of its products or services unless the terms of such development are agreed upon in a subsequent written amendment executed by the Parties that is prepared in accordance with this Section 4.5. For the avoidance of doubt, neither Party will be obligated to enter into any such amendment.
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6. Licenses and Intellectual Property.
(a) undertake the activities enumerated in Sections 2.1 or Section 2.2 hereof;
(b) train such Party’s and its Affiliates’ employees, contractors, and other authorized Representatives on the marketing, selling, planning, support, and use of the first Party’s Products;
(c) grant sublicenses to Sublicensed Customers pursuant to Customer Agreements, EULAs and in accordance with this Agreement;
(d) create backups and other copies of the Installed Products to the extent necessary to perform its obligations in the ordinary course of business;
(e) if requested by the Sublicensed Customer or Managed Services Customer, manage, operate and host Installed Products on behalf of Sublicensed Customers or Managed Services Customer, pursuant to the terms of the applicable Customer Agreement or Managed Services Agreement and XXXX; provided, however, that the parties must mutually agree on the technical requirements for the hosting environments and any service level agreements related thereto;
(f) solely as authorized pursuant to this Agreement and the applicable Customer Agreement and XXXX or Managed Services Agreement, generate, print, copy, download and store Data resulting from the use of the Installed Products; and
(g) conduct such other activities as may be reasonably necessary to carry out any of the foregoing rights.
(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates a non-exclusive, non-transferable (except in accordance with
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Section 25.4) right and license to use the other Party’s Marks, throughout the Territory, in connection with the marketing, selling, or provision of the Products permitted hereunder or to otherwise fulfill the terms of this Agreement.
(b) A Party’s or its Affiliates’ use of the other Party’s Marks will be in accordance with the other Party’s trademark use guidelines and instructions, if any, to be furnished in writing from time to time. A Party will give the other Party written notice of any changes to such specifications or guidelines, and will give the Party a reasonable time to modify its use of the Marks to comply therewith.
(c) Each Product Schedule will list the required Marks for the applicable Products or Services. All goodwill in and to the respective Marks will inure solely to the benefit of the licensor Party.
6.4 Restrictions on Use. Each Party agrees that it will not, and will not permit others to:
(a) reverse engineer, disassemble, decompile, decode, or adapt the other Party’s Products, or otherwise attempt to derive or gain access to the source code or algorithms of the other Party’s Products, in whole or in part;
(b) other than as expressly set forth in Section 6.1, rent, lease, assign, or sell the other Party’s Products to any third party (other than selling the media on which any Installed Products resides);
(c) except with respect to Managed Services Offerings, use any of the other Party’s Products to provide time sharing or service bureau services to third parties;
(d) remove, obscure, or alter from the other Party’s Products, Documentation or the Marketing Materials any titles, trademarks, or copyright, patent, or other proprietary or restrictive legends or notices, or any end user warning or advisory, affixed to or contained therein or thereon;
(e) export or re-export all or any part of the other Party’s Products in violation of any export control Laws of the United States or any other relevant jurisdiction;
(f) release to a third party the results of any benchmark testing of the other Party’s Products or Services;
(g) use the other Party’s Products or Services provided to it under this Agreement for its own internal general production use; or
(h) modify, correct, adapt, translate, enhance, or otherwise prepare or create any derivative works or improvements of the other Party’s Products.
(i) otherwise use the Products except as expressly set forth in Section 6.1 hereof.
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6.5 Intellectual Property Ownership.
(a) Other than the express rights and licenses granted by NantHealth in this Agreement, NantHealth and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to the NantHealth Products, NantHealth Services, NantHealth Documentation, NantHealth Marketing Materials, NantHealth Marks, and any modifications, improvements or derivative works NantHealth creates or develops (e.g., any NantHealth Documentation integrated with the Allscripts Documentation). At no time will Allscripts, Allscripts Affiliates, Allscripts resellers or Allscripts Sublicensed Customers acquire or retain any title to or ownership to such assets.
(b) Other than the express rights and licenses granted by Allscripts in this Agreement, Allscripts and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to the Allscripts Products, Allscripts Services, Allscripts Documentation, Allscripts Marketing Materials, Allscripts Marks, and any modifications, improvements, or derivative works Allscripts creates or develops (e.g., any Allscripts Documentation integrated with NantHealth Documentation). At no time will NantHealth, NantHealth Affiliates, NantHealth resellers, NantHealth Sublicensed Customers or Managed Services Customers acquire or retain any title to or ownership to such assets.
(c) Neither Party will take any action inconsistent with a Party’s nor its licensors’ ownership and interests set forth in this Section 6.5, or assist any Person in doing the same.
(a) Unless otherwise set forth in the applicable Product Schedule, or as may be otherwise agreed with a Sublicensed Customer and documented in the relevant Customer Agreement, as between Allscripts and its Affiliates, on the one hand, and NantHealth and its Affiliates, on the other hand, Allscripts and its Affiliates shall have, reserve, and retain sole and exclusive ownership to all right, title, and interest in and to all Allscripts Product Data, including all Intellectual Property therein. Allscripts Product Data is and shall be the Confidential Information of Allscripts and its Affiliates. Other than as expressly provided herein, neither NantHealth nor any third party: (i) has or will have, acquire or claim any right, title, or interest in or to any Allscripts Product Data as a result of this Agreement; or (ii) has or will have any right or license to, and shall not, use any Allscripts Product Data. NantHealth and its Affiliates agree to assign and do hereby assign any right, title or interest it may have in and to the Allscripts Product Data to Allscripts or such other party as set forth in the applicable Product Schedule, or as agreed with a Sublicensed Customer and documented in the relevant Customer Agreement. To the extent permitted under, and subject to, the applicable Customer Agreements, EULAs and patient consents, unless otherwise prohibited by applicable law, Allscripts will make available to NantHealth any Allscripts Product Data that is collected or otherwise stored/maintained by Allscripts and NantHealth shall receive a non-exclusive, fully-paid up, royalty-free (other than fees to be paid hereunder) right and license to use the Allscripts Product Data that is commensurate with the rights that Allscripts has to use such Allscripts Product Data.
(b) Unless otherwise set forth in the applicable Product Schedule, or as may be otherwise agreed with a Sublicensed Customer or Managed Services Customer and documented in the relevant
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Customer Agreement or Managed Services Agreement, as the case may be, as between NantHealth and its Affiliates, on the one hand, and Allscripts and its Affiliates, on the other hand, NantHealth and its Affiliates shall have, reserve, and retain sole and exclusive ownership to all right, title, and interest in and to all NantHealth Product Data, including all Intellectual Property therein. NantHealth Product Data is and shall be the Confidential Information of NantHealth and its Affiliates. Other than as expressly provided herein, neither Allscripts nor any third party: (i) has or will have, acquire or claim any right, title, or interest in or to any NantHealth Product Data as a result of this Agreement; or (ii) has or will have any right or license to, and shall not, use any NantHealth Product Data. Allscripts and its Affiliates agree to assign and do hereby assign any right, title or interest it may have in and to the NantHealth Product Data to NantHealth or such other party as set forth in the applicable Product Schedule, or as may be otherwise agreed with a Sublicensed Customer or Managed Services Customer and documented in the relevant Customer Agreement or Managed Services Agreement, as the case may be. To the extent permitted under, and subject to, the applicable Customer Agreements, Managed Services Agreements, EULAs and patient consents, unless otherwise prohibited by applicable law, NantHealth will make available to Allscripts any NantHealth Product Data that is collected or otherwise stored/maintained by NantHealth and Allscripts shall receive a non-exclusive, fully-paid up, royalty-free (other than fees to be paid hereunder) right and license to use the NantHealth Product Data that is commensurate with the rights that NantHealth has to use such NantHealth Product Data.
(c) For the avoidance of doubt, except as set forth in this Article 6, neither Party grants to the other Party any rights with respect to the Data of such Party, its Affiliates, Customers or otherwise.
(a) providing commercially reasonable training to the first Party’s sales personnel regarding the other Party’s Products and Services prior to the first Party’s marketing, promoting, and or distributing or making available the other Party’s Products or Services, and at least annually thereafter;
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(b) assisting the first Party in developing marketing strategies, plans, and marketing and training materials describing the other Party’s Products or the Services either on their own or as complementary solutions to any of the first Party’s products or services;
(c) providing the first Party with a reasonable quantity of standard brochures, presentations, and materials related to the other Party’s Products, the Services and/or the other Party in hard copy and electronic form; and
(d) participating in sales meetings with the first Party’s sales and/or actual or potential Sublicensed Customer or Managed Services Customer personnel.
(a) Each party is solely responsible for the development, update, performance, and maintenance of its Products. Each Party covenants to use its commercially reasonable efforts to ensure that its Products are made available to the other Party and each Sublicensed Customer in accordance with the warranties, terms, and conditions of this Agreement and in accordance with any performance standards specified in this Agreement or in the Documentation.
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(b) In furtherance of Section 9.1(a), each Party agrees to provide, subject to payment of applicable Support Service fees as described in the applicable Product Schedule, the Support Services in the manner and timeframes set forth the applicable Product Schedule. Support Services will, at a minimum, (i) ensure satisfaction of any performance standards specified in this Agreement; (ii) correct Errors as promptly as reasonably practicable, but at least in accordance with the service levels set forth on the applicable Product Schedule; (iii) provide workarounds that eliminate the adverse effects of Errors while a correction is being made; and (iv) enable Sublicensed Customers (or NantHealth, in the case of a Managed Services Offering) to implement and utilize the Products as reasonably intended. The parties agree to reasonably cooperate to troubleshoot and resolve technical support issues that may reasonably involve the products, software, or technology of the other Party or of both Parties.
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11.5 Joint Integration/Development Commitments.
(a) Short Term Integration Efforts. The parties agree to work together in good faith to promptly begin the mutually agreed short-term, API-based integration outlined in the “Cancer Strategic Initiative” scope of work and to complete the generally available deliverables contemplated by such scope of work within 6 months from the Effective Date.
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(b) Long Term Integration Efforts. NantHealth will work exclusively (relative to third party Allscripts Competitors of the dbMotion product) with Allscripts during the Special Exclusivity Period on the long-term integration efforts outlined below. Specifically, the parties agree to negotiate in good faith and execute a mutually agreeable joint development agreement within 60 days from the Effective Date that includes terms related to the following long-term integration efforts:
(1) Creation of a clinical and financial bundled solution to provide an industry leading managed cancer care solution;
(2) Creation of a cross clinical-omics knowledge ontology and industry standard.
(3) A mechanism to identify and create innovation initiatives to generate cutting edge key differentiators for the joint developments described in this section;
(4) Development of functionality that enables sequencing invitations and communication via the Allscripts’ patient engagement solution.
(5) Development of a joint solution for ACOs based on dbMotion population management functionality.
For the avoidance of doubt, the exclusivity contemplated under this Section 11.5(b) does not apply with respect to any products or services that NantHealth or its Affiliates internally has, is developing or chooses to develop (including, for the avoidance of doubt, products and services of businesses or entities that NantHealth may acquire from time to time, such as the healthcare solutions business group of Xxxxxx Corporation).
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(a) Each Party agrees that, if any of its Products is subject to regulation as a medical device by the FDA, then such Party will fulfill all corresponding regulatory requirements, including full compliance with all applicable Laws related to premarket clearance or approval, manufacturing, marketing, sale, and distribution of the Products (and upon the other Party’s request, such Party will promptly provide the other Party’s with any such clearance or approval documentation to support the marketing of the Products);
(b) Neither Party will seek any licenses, permits, or approvals or make any determinations that may result in any of the other Party’s products or service being deemed regulated as a medical device or that may impose any obligations or limitations on the other Party with respect to the regulatory status of any of the other Party’s products or services; and
(c) if a Party decides to seek any licenses, permits, or approvals or to take any action that may result in its Products being deemed regulated as a medical device or that may impose any obligations or limitations on any of its Products with respect to its Products’ regulatory status, then such Party will immediately notify the other Party, and will use their commercially reasonable efforts to minimize the effect of such regulation, obligation, or limitation, to the extent reasonably practicable.
(d) Known specific regulatory requirements and licenses, permits or approvals for each Product shall be identified in the applicable Product Schedule.
14. Payment Terms; Reporting; Audits.
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18. Representations and Warranties.
(a) it is duly formed, validly existing, and in good standing as a limited liability company under the Laws of its jurisdiction of formation;
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(b) it has, and throughout the term of this Agreement and any Customer Agreement or Managed Services Agreement will retain, the full right, power, and authority to enter into this Agreement, to grant the rights and licenses it grants hereunder, and to perform its obligations under this Agreement;
(c) its execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party;
(d) when executed and delivered by it, this Agreement will constitute its legal, valid, and binding obligation, enforceable against it in accordance with its terms;
(e) there is no outstanding claim, litigation, proceeding, arbitration, or investigation to which it is a party that would reasonably be expected to have a material adverse effect on its ability to enter into this Agreement or to perform its obligations hereunder; and
(f) its execution, delivery, and performance of its obligations under this Agreement does not and will not violate any judgment, order, decree, or applicable Law, nor does it or will it violate any agreement to which it is a party.
(a) [***];
(b) [***]; and
(c) [***].
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(a) [***];
(b) [***]; and
(c) [***].
(a) any violation of applicable Law by the Indemnifying Party;
(b) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to Indemnifying Party contained in this Agreement (including the performance of the Services), including any personal injury, death, or damage to tangible personal or real property; except any of the foregoing based on allegations of medical malpractice or liability arising out of delivery of (or a failure to deliver) medical care;
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(c) taxes assessed or claimed against any of the Indemnified Persons that are obligations of the Indemnifying Party in connection with this Agreement or which result from the breach of this Agreement by the Indemnifying Party;
(d) any Claims that the Indemnifying Party’s Products, Documentation, Marketing Materials, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof as permitted and in accordance with this Agreement and the applicable XXXX, infringe, misappropriate, or violate any Intellectual Property or other rights of a third party, including any damages suffered by Indemnified Persons’ Sublicensed Customers or Managed Services Customers as a result thereof for which the Indemnified Persons are liable, including any permitted refunds of fees paid by Indemnified Persons’ Sublicensed Customers or Managed Services Customers for use of such infringing materials;
(a) In the event of a Claim that the Indemnifying Party’s Products, Documentation, Marketing Materials, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof in accordance with this Agreement and the applicable XXXX, infringe, misappropriate, or violate any Intellectual Property of a third party, or if any use of any of the Indemnifying Party’s Products, the Documentation, Marketing Materials, or the Services (or any respective component thereof) is enjoined, threatened to be enjoined, or is otherwise the subject of such a Claim, then Indemnifying Party will, at its sole cost and expense, (i) procure for the Indemnified Persons and Indemnified Persons’ Sublicensed Customers and Managed Services Customers the right to continue to use such Indemnifying Party’s Products, Documentation, Marketing Materials, or Services (or component thereof) to the full extent contemplated by this Agreement; or (ii) modify or replace the materials that infringe or are alleged to infringe to make the Indemnifying Party’s Products, the Documentation, Marketing Materials, or the Services, and all of their respective components, non-infringing while providing fully equivalent features and functionality (all of which will be subject to this Agreement).
(b) If, in Indemnifying Party’s discretion, none of the options set forth in Section 19.2(a) are available, then either Party will have the right to terminate this Agreement with respect to the applicable Products or Services immediately.
(c) The remedies set forth in this Section 19.2 are in addition to, and not in lieu of, all other remedies that may be available to the Indemnified Persons under this Agreement or otherwise, including the Indemnified Persons’ right to indemnification pursuant to Section 19.1.
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Sublicensed Customers’ or Managed Services Customers’ continued engagement in allegedly infringing activities after receipt of notice from the Indemnifying Party of a Claim and after being provided with modifications that would have avoided the alleged infringement; or (e) any use of the Indemnifying Party’s Products that is not in compliance with the Documentation, XXXX or the terms of this Agreement.
19.4 Indemnification Procedure.
(a) A Person seeking defense and indemnification under this Section 19.4 (the “Indemnified Person”) will promptly notify the Party from whom defense and indemnification is being sought (the “Indemnifying Party”) in writing, describing the circumstances, in reasonable detail, for which it seek defense and indemnification.
(b) Upon notice of a Claim, the Indemnifying Party will immediately assume the investigation and defense of such Claim, and, in connection therewith, will employ counsel of national reputation of its own choosing at its sole cost and expense. At the Indemnifying Party’s request and expense, the Indemnified Person will provide reasonable cooperation in connection with the investigation and defense of such Claim; provided, however, that the Indemnified Person will not be required to disclose any confidential information which it does not have the right to disclose or to waive any privilege. The Indemnified Person may also participate in and observe (but not control) the investigation and defense of such Claim, at its own cost and expense and with counsel of its choosing.
(c) If the Indemnifying Party fails to defend a Claim hereunder within a reasonable amount of time after receiving notice thereof, the Indemnified Person will have the right, but not the obligation, and without waiving any of its other rights hereunder, to undertake the defense of and to compromise or settle such Claim, on behalf of and at the risk and expense of the Indemnifying Party.
(d) The Indemnifying Party will not settle any Claim in a manner that adversely affects the rights or assets, or restrains or interferes with the business or operations of, the Indemnified Person or its Affiliates, or which involves an admission of liability of behalf of the Indemnified Person or its Affiliates, or imposes any obligation upon the Indemnified Person that the Indemnifying Party does not discharge, in each case without the Indemnified Person’s prior written consent.
(e) An Indemnified Person’s failure to perform any obligations under this Section 19.4 will not diminish an Indemnifying Party’s obligations hereunder, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.
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20.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. EXCEPT AS OTHERWISE SET FORTH IN SECTION 20.3, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POTENTIAL FOR SUCH DAMAGES, OR WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, TORT, OR OTHERWISE.
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(a) The termination of this Agreement will not have the effect of terminating any Customer Agreement or Managed Services Agreement (or the licenses to the Products distributed thereunder) entered into prior to the effective date of termination of this Agreement. Each Party will continue to honor commitments made under the terms and conditions of each such Customer Agreement or Managed Services Agreement for up to three (3) years after the effective date of
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termination of the Agreement, and will continue to provide Services to Sublicensed Customers (or to NantHealth, in the case of a Managed Services Offering) for such three (3) year period. Each Party will continue to make payments to the other Party with respect to each Customer Agreement or Managed Services Agreement still in effect in accordance with this Agreement.
(b) Upon termination of this Agreement, except in connection with the rights and obligations set forth in this Section 22.6, each Party will immediately (i) cease all use of the other Party’s Marks and all marketing and sales-related efforts with respect to the other Party’s Products and the Services; (ii) discontinue all representations or statements from which it might be inferred that any relationship exists between the Parties; (iii) cease to solicit or procure orders for the other Party’s Products or the Services; and (iv) return all copies of the other Party’s Documentation, and related materials and copies thereof, to the other Party; provided, however, that each Party may retain a reasonable number of copies of the other Party’s Documentation and related materials in order to fulfill its obligations under this Agreement and applicable Customer Agreements or Managed Services Agreements.
(c) Upon termination of this Agreement, each Party will (i) provide reasonable cooperation and assistance to the other Party, at the other Party’s written request and to the extent necessary to fulfill any continuing obligations under this Agreement, in transitioning the terminated Support Services to an alternative service provider; and (ii) refund to the other Party any prepaid amounts for such Products and the Services that will no longer be made available by such Party.
(d) Upon termination of this Agreement (i) neither Party will continue to use any Data of the other Party or its Sublicensed Customers’ or Managed Services Customers’ Data, (ii) each Party will provide the other Party and its Sublicensed Customers with a copy of any of its respective Data or PHI that is in such Party’s possession or control, and such Party will immediately delete and otherwise remove or destroy all other copies of any the other Party’s or its Sublicensed Customers’ or Managed Services Customers’ Data or PHI that is in such Party’s possession or control.
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25.8 Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of New York applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions (other than Section 5-1401 of the New York General Obligations Law).
(a) Except as expressly permitted in Section 25.9(f), neither Party will initiate an arbitration of any dispute hereunder unless (i) such Party has provided the other Party with written notice of that dispute with reasonable specificity and attempted in good faith to resolve that dispute through negotiations; (ii) despite such efforts, the dispute remains unresolved thirty (30) or more days after receipt of that notice; and (iii) such initiation is in accordance with this Section 25.9.
(b) Subject to the foregoing, any dispute arising out of, relating to, or in connection with this Agreement which cannot be settled amicably will be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution (CPR) Rules for Non-Administered Arbitration by a panel of three arbitrators, of which each Party will designate one arbitrator in accordance with the “screened” appointment procedure provided in Rule 5.4 thereof. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. sec. 1 et seq. Arbitration awards will be final and binding upon the Parties, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The place of the arbitration will be New York, New York. All aspects of the arbitration and any award will be confidential (subject to the exceptions set forth in Sections 16.2-16.3).
(c) The arbitrators will have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a dispute; provided, however, that the arbitrators will have no power or authority to award damages that would be inconsistent with Section 20 of this Agreement.
(d) In any arbitration under this Section 25.9, the arbitrators will set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing each Party to such dispute an opportunity, adequate in the sole judgment of the arbitrators, to discover relevant information from the other Party about the subject matter of the dispute. The arbitrators
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will rule upon motions to compel or limit discovery and will have the authority to impose sanctions for discovery abuses, including attorneys’ fees and costs, to the same extent as a competent court of law or equity, should the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification.
(e) Each Party will pay its own costs and expenses (including counsel fees) of any arbitration; provided, however, that the Parties will equally share the fees and expenses of the arbitrators; provided, further, that in the event any action, suit, arbitration, or other proceeding is instituted or commenced by either Party against the other Party arising hereunder, the prevailing Party will be entitled to recover its reasonable attorneys’ fees, court costs, and costs of arbitration from the non-prevailing Party (it being agreed that the arbitrators and/or judge may eliminate or reduce such recovery on the grounds that it is unreasonable or disproportionate to the harm suffered).
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
Allscripts Healthcare, LLC | Nant Health, LLC | |||||||
By: | /s/ Xxxxxxx Xxxxxxx | By: | /s/ Xxxxxx Xxxxxx | |||||
Name: | Xxxxxxx Xxxxxxx | Name: | Xxxxxx Xxxxxx | |||||
Title: | CFO | Title: | President | |||||
Address for Notices: | Address for Notices: | |||||||
000 Xxxxxxxxxxx Xxxx Xxxxx | 0000 Xxxxxxxxx Xxxx. | |||||||
Xxxxx 0000 | Xxxxxx Xxxx, XX 00000 | |||||||
Xxxxxxx, XX 00000 | Attention: President | |||||||
Attention: SVP, Corporate Development and Strategy | ||||||||
With a copy (which will not constitute notice) to: | With a copy (which will not constitute notice) to: | |||||||
000 Xxxxxxxxxxx Xxxx Xxxxx Xxxxx 0000 Xxxxxxx, XX 00000 Attention: General Counsel | 0000 Xxxxxxxxx Xxxx. Xxxxxx Xxxx, XX 00000 Attention: General Counsel |
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FORM OF PRODUCT SCHEDULE
PRODUCT SCHEDULE
Schedule Number: [ ]
Date:
[Allscripts/NantHealth] Product(s) | ||
Pricing | ||
Territory | ||
NantHealth Competing Provider | ||
Preferred Partner Status | ||
Data Rights | ||
Support Services | ||
Service Levels | ||
Applicable regulatory requirements and approvals. | ||
Required XXXX Terms | See Annex 1 to this Product Schedule [ ] | |
Harmful Code Controlled Technology | ||
Trademarks | ||
Special Terms/Other |
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IN WITNESS WHEREOF, the parties have executed this Schedule 1 as of the date first written above.
Allscripts Healthcare, LLC | Nant Health, LLC | |||||||
By: |
| By: |
| |||||
Name: |
| Name: |
| |||||
Title: |
| Title: |
|
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ANNEX 1 TO PRODUCT SCHEDULE
XXXX
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