Exhibit 10.17
AMENDED AND RESTATED CROSS LICENSE
AND
SOFTWARE MAINTENANCE AGREEMENT
THIS AMENDED AND RESTATED CROSS LICENSE AND SOFTWARE MAINTENANCE AGREEMENT
(this "Agreement") is made and entered into as of the January 8, 2001, by and
between IDX SYSTEMS CORPORATION, a Vermont corporation, with offices at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("IDX"), and CHANNELHEALTH,
INCORPORATED, a Delaware corporation, with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ChannelHealth").
Background
IDX and ChannelHealth entered into that certain Cross License and Software
Maintenance Agreement dated January 1, 2000.
ChannelHealth is in the business of, among other things, developing and
marketing products and services known as the "Physician Channel" to automate the
delivery of office-based clinical care, the "Patient Channel" to automate
communication between physicians and their patients, and the "eCommerce Channel"
to automate aspects of claims and payments for healthcare.
IDX is interested in retaining the eCommerce Channel business and certain
components of the Patient Channel business and in divesting the Physician
Channel business. Allscripts Healthcare Solutions, Inc., a Delaware corporation
("Allscripts"), is interested in acquiring the Physician Channel business of
ChannelHealth.
As of July 13, 2000, (i) IDX and ChannelHealth entered into an Asset
Purchase Agreement whereby, on the date hereof, IDX shall acquire the assets and
assume the liabilities associated with the eCommerce Channel business and
certain components of the Patient Channel business and (ii) IDX and Allscripts
entered into an Agreement and Plan of Merger (the "Merger Agreement") whereby
ChannelHealth, on the date hereof, will become a subsidiary of Allscripts, and
concurrently herewith, IDX and Allscripts have entered into a Strategic Alliance
Agreement whereby they shall cooperatively develop and market integrated office
practice management and clinical management systems.
IDX and ChannelHealth desire to restate and supersede the Cross License and
Software Maintenance Agreement, dated as of January 1, 2000, entered into by and
between IDX and ChannelHealth (the "License Agreement"), to reflect (i) the
conveyance by ChannelHealth of the eCommerce Channel business and certain
components of the Patient Channel, and (ii) the conveyance of certain
intellectual properties related to the Physician Channel by IDX to
ChannelHealth.
IN CONSIDERATION of the premises, the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SCOPE AND EFFECT
From and after the Effective Time, each party shall be relieved from all
obligations to perform the License Agreement that shall have arisen from and
after the Effective Time, but this Agreement shall not relieve any party to the
License Agreement from any obligation that shall have arisen prior to the
Effective Time. Except for any such obligations, this Agreement shall supersede
the License Agreement.
2. DEFINITIONS
The capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings ascribed to them on Schedule 1 attached
hereto.
3. IDX LICENSE GRANTS AND CONVEYANCE OF INTELLECTUAL PROPERTY
As of the Effective Time, IDX grants licenses to ChannelHealth and makes
conveyances of intellectual property to ChannelHealth as set forth in this
Section 3, all of which shall for the purposes of this Agreement be deemed
effective as of the Closing Date.
3.1 In General. IDX hereby grants to ChannelHealth a perpetual (except as set
forth in Section 3.2), non-exclusive, non-cancellable and non-teminable,
fully paid-up license (i) to copy, use, display, perform, adapt, modify,
create derivative works of, and maintain the IDX Software, in whole or in
part, solely for the purpose of Merging the IDX Software into Allscripts
Products, (ii) to market and sublicense (including through one or more
Distribution Partners), and in connection therewith to copy, use,
distribute, perform, and display the IDX Software, in whole or in part,
only as the IDX Software may be Merged into Allscripts Products, and (iii)
to use and practice the IDX Licensed Technology to accomplish the purposes
set forth in clauses (i) and (ii) of this Section 3.1.
3.2 Subject to Section 3.4.3, IDX shall make no claim to any derivative works
developed by or on behalf of ChannelHealth pursuant to Section 3.1.
3.3 New Enabling Technologies. Upon the Termination and/or nonrenewal of the
Strategic Alliance Agreement, the licenses granted to ChannelHealth shall
terminate with respect to all New Enabling Technologies, except for New
Enabling Technologies embodied in the Web FrameWork and ConnectR. From and
after such termination, ChannelHealth shall not use any New Enabling
Technologies for any purpose other than to create or maintain compatibility
or connectivity between Allscripts Products and IDX Products.
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3.4 Ownership, Patent Prosecution and Enforcement.
3.4.1 IDX hereby transfers and assigns to ChannelHealth all of its
copyrights in and to the products known as CMS and the Physician
Channel. IDX shall execute an assignment in the form attached hereto
as Exhibit 3.4.1 to effectuate and confirm such assignment.
3.4.2 Except for the rights expressly granted herein to ChannelHealth, IDX
reserves and retains all right, title and interest (including
without limitation patents and copyrights) in, the IDX Licensed
Technology, the Virtual Office, Health Resources, the eCommerce
Channel, DietSite, and all customizations, additions, modifications,
changes, enhancements, improvements, and derivative works thereof
made by IDX or on behalf of IDX, and all rights therein and copies
thereof.
3.4.3 IDX reserves and retains all right, title and interest to any and
all patentable inventions made, conceived, or reduced to practice by
IDX, including without limitation by IDX personnel, employees or
contractors, whether in whole or in part, both before and after the
Reference Date. ChannelHealth agrees to cooperate in every
reasonable way with IDX, at IDX's cost, to prosecute patent
applications for such inventions and to perfect IDX's right, title
and interest in and to such inventions and patent applications. The
parties agree and acknowledge that certain ChannelHealth personnel
were IDX employees, or were otherwise associated with IDX, before
the Reference Date, and ChannelHealth agrees to cooperate in every
reasonable way with IDX to prosecute patent applications for such
inventions and to perfect IDX's right, title and interest in and to
such inventions and patent applications.
3.4.4 ChannelHealth reserves and retains all right, title and interest to
any and all patentable inventions with claims in part or wholly
directed to inventions embodied in, or necessary to implement and
practice the Physician Channel alone, or in combination with any
other product or service made, conceived, or reduced to practice by
ChannelHealth, including without limitation by ChannelHealth
personnel, employees or contractors.
3.4.5 In the event IDX does not wish to prosecute a patent application for
an invention owned by IDX, and directed to, embodied in, or
necessary to implement and practice the Physician Channel,
ChannelHealth may elect to prosecute that application at its
expense.
3.4.6 If IDX decides not to enforce any issued patent with claims in part
or wholly directed to inventions embodied in, or necessary to
implement and practice the Physician Channel alone, or in
combination with any other product or service, ChannelHealth may at
its sole expense request that either IDX, at its sole discretion,
either bring an action for infringement against the alleged
infringing party or parties, or assign sufficient rights in the
patent to ChannelHealth to enable ChannelHealth to have standing to
enforce the patent on its own.
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3.5 Limitations, Restrictions, and Conditions. The licenses granted to
ChannelHealth hereunder are subject to the following limitations,
restrictions, and conditions:
3.5.1 Distribution Pursuant to Strategic Alliance Agreement. During the
Initial Term of the Strategic Alliance Agreement, ChannelHealth's
use of the IDX Licensed Technology or any part thereof, including as
Merged into Allscripts Products, is governed by the Strategic
Alliance Agreement. This restriction shall not apply following the
Initial Term or the termination of the Strategic Alliance Agreement.
3.5.2 ChannelHealth shall have the right to use internally IDX Database
Information only in connection with the Integration Methods, so long
as such use does not induce disclosure of IDX Database Information
to any Person not a party to this Agreement. At no time shall
ChannelHealth license or authorize any Person to use any Integration
Method or to use any IDX Database Information to exchange data
between any IDX products and any products of any Person not a party
to this Agreement. The foregoing shall not prohibit or restrict
ChannelHealth from (i) providing any Allscripts Products to any
ChannelHealth Customer using any Integration Method to provide
installation services with respect to such ChannelHealth Customer or
using IDX Database Information, in each case solely for the benefit
of such Customer in using Allscripts Products, or (ii) using
contractors as set forth in Section 3.5.4.
3.5.3 ChannelHealth may permit third parties to provide to ChannelHealth
or ChannelHealth Customers maintenance, disaster recovery,
facilities management, outsourcing or other services involving
access to the IDX Licensed Technology only if such third parties in
each instance shall execute written nondisclosure and non-use
agreements with ChannelHealth, in form and substance reasonably
satisfactory to IDX and ChannelHealth, prior to using or gaining
access to the IDX Licensed Technology.
3.5.4. ChannelHealth may adapt, modify, merge, and maintain the IDX
Licensed Technology as permitted under this Agreement through its
own employees or through independent contractors, provided each such
independent contractor shall in each instance execute a written
nondisclosure and non-use agreement with ChannelHealth, in form and
substance reasonably satisfactory to IDX and ChannelHealth, prior to
gaining access to the Source Code.
3.5.5 ChannelHealth may not indicate that any portion of the IDX Licensed
Technology originated from IDX, except with IDX's prior written
consent and except as may be otherwise expressly set forth in the
Strategic Alliance Agreement.
3.6 Certain Terms of Third Party Agreements for IDX Licensed Technology.
ChannelHealth shall not allow the use of or access to the IDX Licensed
Technology by any third party (including a Distribution Partner) unless
such party has signed and delivered to ChannelHealth an agreement
restricting use of such
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IDX Licensed Technology in a manner consistent with this Agreement, and
ChannelHealth shall use reasonable efforts to include language
substantially similar to the following in any such third party agreements:
IN NO EVENT SHALL CHANNELHEALTH'S SUPPLIERS AND LICENSORS BE LIABLE FOR
ANY DAMAGES OF ANY KIND OR NATURE, INCLUDING DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL, ARISING OUT OF
THE USE OF ANY SOFTWARE SUPPLIED BY CHANNELHEALTH, ITS SUPPLIERS OR
LICENSORS. THE LICENSEE UNDERSTANDS AND AGREES THAT THE SOFTWARE PROVIDED
BY CHANNELHEALTH TO LICENSEE CONTAINS SOFTWARE THAT IS THE COPYRIGHTED
PRODUCT AND A TRADE SECRET OF CHANNELHEALTH OR ITS SUPPLIERS AND
LICENSORS, AND THAT LICENSEE WILL NOT USE ANY SUCH SOFTWARE IN VIOLATION
OF THE RESTRICTIONS CONTAINED IN THIS AGREEMENT AND WILL NOT DISCLOSE THE
SOFTWARE TO ANYONE OTHER THAN ITS EMPLOYEES OR AGENTS AS REASONABLY
NECESSARY FOR THE PURPOSE OF THIS AGREEMENT AND ON THE CONDITION THAT IT
ACCEPTS FULL RESPONSIBILITY FOR ANY BREACH HEREOF BY ANY SUCH INDIVIDUAL.
THE FOREGOING AGREEMENTS ARE FOR THE EXPRESS BENEFIT OF CHANNELHEALTH,
ITS SUPPLIERS AND LICENSORS, AND MAY BE ENFORCED BY CHANNELHEALTH AND ITS
SUPPLIERS AND LICENSORS.
3.7 Delivery. As of the Reference Date, IDX has delivered one copy (in both
object code and Source Code forms) of each component of the IDX Licensed
Technology.
3.8 IDX Names and Marks. ChannelHealth may not use any IDX Names or Marks in
connection with ChannelHealth's business or otherwise, except as may be
expressly set forth in the Strategic Alliance Agreement.
3.9 Bankruptcy. All rights and licenses granted under or pursuant to this
Agreement by IDX to ChannelHealth are, and shall otherwise be deemed to be,
for purposes of Section 365(n) of the United States Bankruptcy Code (the
"Code"), licenses to rights to "intellectual property" as defined in the
Code. The parties agree that ChannelHealth, as licensee of such rights
under this Agreement, shall retain and may fully exercise all of its rights
and elections under the Code. The parties further agree that, in the event
of the commencement of bankruptcy proceeding by or against IDX under the
Code, ChannelHealth shall be entitled to retain all of its rights under
this Agreement.
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4. LIMITED WARRANTIES OF IDX
Except for the warranties made in the Merger Agreement, there are NO
WARRANTIES made by IDX in connection with the subject matter of this Agreement.
The warranties of IDX set forth below are made only to ChannelHealth and shall
be true as of the Reference Date. ChannelHealth acknowledges that, except for
the express warranties set forth in this Section 4, it has accepted the license
and delivery of the IDX Licensed Technology "AS IS" and "WITH ALL FAULTS." With
respect to Software Updates and Support Services the warranties are as follows:
4.1 Encumbrances. The IDX Software Updates shall be free and clear of all
liens, restrictions, claims, charges, security interests, or other
encumbrances of any nature whatsoever which might affect or adversely
impact on ChannelHealth's use of the IDX Software Updates as permitted
under this Agreement.
4.2 Ownership; Right to License. IDX owns or otherwise has adequate rights to
make the grants of the licenses to the IDX Software Updates to
ChannelHealth hereunder and possesses all rights and interests in the IDX
Software Updates necessary to enter into this Agreement.
4.3 No Infringement. IDX Software Updates and all components thereof do not
infringe upon the intellectual property rights, including without
limitation the patent, copyright, trademark or trade secret rights, of any
third parties. The sole and exclusive remedy for breach of this warranty
shall be as set forth in Section 8.1.
5. CHANNELHEALTH LICENSE GRANTS AND CONVEYANCE OF INTELLECTUAL PROPERTY
ChannelHealth grants licenses to IDX as set forth in this Section 5.
5.1 License to ChannelHealth Licensed Technology. ChannelHealth hereby grants
to IDX a perpetual, non-exclusive, non-cancellable and non-terminable,
fully paid-up license to copy, use, display, perform, market, sublicense,
transmit, create and own derivative works, and distribute (including
through one or more Distribution Partners) all or any portion of the
ChannelHealth Licensed Technology the use of which is limited to use with
the Patient Channel.
5.2 Delivery. ChannelHealth shall deliver one copy (in both object code and
Source Code forms) of each component of the ChannelHealth Licensed
Technology.
5.3 Bankruptcy. All rights and licenses granted under or pursuant to this
Agreement by ChannelHealth to IDX are, and shall otherwise be deemed to be,
for purposes of Section 365(n) of the United States Bankruptcy Code (the
"Code"), licenses to rights to "intellectual property" as defined in the
Code. The parties agree that IDX, as licensee of such rights under this
Agreement, shall retain and may fully exercise all of its rights and
elections under the Code. The parties further agree that, in the event of
the commencement of bankruptcy proceeding by or against
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ChannelHealth under the Code, IDX shall be entitled to retain all of its
rights under this Agreement.
6. LIMITED WARRANTIES OF CHANNELHEALTH
Except for the warranties made in the Merger Agreement, there are NO
WARRANTIES made by ChannelHealth in connection with the subject matter of this
Agreement. The warranties of ChannelHealth set forth below are made only to IDX
and shall be true as of the Reference Date. IDX acknowledges that, except for
the express warranties set forth in this Section 6, it has accepted the license
and delivery of the ChannelHealth Licensed Technology "AS IS" and "WITH ALL
FAULTS." With respect to Software Updates and Support Services the warranties
are as follows:
6.1 Encumbrances. The ChannelHealth Software Updates shall be free and clear of
all liens, restrictions, claims, charges, security interests, or other
encumbrances of any nature whatsoever which might affect or adversely
impact IDX's use of the ChannelHealth Software Updates as permitted under
this Agreement.
6.2 Ownership; Right to License. ChannelHealth owns or otherwise has adequate
rights to make the grants of the licenses to the ChannelHealth Software
Updates to IDX hereunder and possesses all rights and interests in the
ChannelHealth Software Updates necessary to enter into this Agreement.
6.3 No Infringement. ChannelHealth Software Updates and all components thereof
do not infringe upon the intellectual property rights, including without
limitation the patent, copyright, trademark or trade secret rights, of any
third parties. The sole and exclusive remedy for breach of this warranty
shall be as set forth in Section 8.1.
7. SUPPORT AND SERVICES
7.1 IDX Support. During the IDX Support Term, IDX shall provide to
ChannelHealth IDX Software Maintenance and IDX Software Updates on a timely
basis. IDX shall have no obligation to provide any services to support,
maintain or update CMS.
7.2 ChannelHealth Support. During the ChannelHealth Support Term,
ChannelHealth shall provide ChannelHealth Maintenance and ChannelHealth
Updates on a timely basis.
7.3 Implementation and Consulting. Each party will provide services for
customer specific implementation work and consulting services to the other
party at the then current consulting rate for the party.
7.4 Level of Support. Each party will further provide the other with the same
level of support that is offered to its customers for the specific product
for which support is requested.
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8. INDEMNIFICATION
8.1 IDX Indemnity.
8.1.1 Indemnification Obligations. IDX, at its own expense, shall defend,
hold harmless and indemnify ChannelHealth, its officers, directors,
employees, agents, successors, affiliates, and assigns, from and
against any and all loss, damages, expenses (including attorneys'
fees) arising from claims of third parties that the IDX Software
Updates, or any component thereof, whether used alone or in
combination with any other item as intended, designed, suggested or
induced by IDX or its agents, infringes or violates any patents,
copyrights, trademarks, trade secrets, licenses, or other
proprietary rights of any third party. ChannelHealth may, at its own
expense, assist in such defense if it so chooses, provided that IDX
shall control such defense and all negotiations relative to the
settlement of any such claim. IDX shall not settle any claim that
adversely affects any rights of ChannelHealth without
ChannelHealth's prior written consent. ChannelHealth shall promptly
provide IDX with written notice of any claim that ChannelHealth
believes falls within the scope of this Section 8.1.1. At any time
after IDX becomes aware of any such claim under this Section 8.1.1,
or in the event that the IDX Licensed Technology, the IDX Software,
or any portion thereof, is held to constitute an infringement or its
use is enjoined, IDX shall have the option at its own expense to (i)
modify the infringing item without impairing in any material respect
the functionality or performance, so that it is non-infringing, (ii)
procure for ChannelHealth the right to continue to use the
infringing item or (iii) replace the infringing item with an equally
suitable, non-infringing item.
8.1.2 Exceptions. IDX's obligations to indemnify as set forth in this
Section 8 shall not apply to any claim to the extent that it arises
from (i) any modifications, changes, additions, or enhancements to
the IDX Software Updates that have not been made directly by IDX or
have not been made at its express direction or under its direct
oversight, control or supervision or (ii) any such modifications
made by IDX at the request or to the specification of ChannelHealth,
ChannelHealth's Customers, or any of their agents.
8.2 ChannelHealth Indemnity.
8.2.1 Indemnification Obligations. ChannelHealth, at its own expense,
shall defend, hold harmless and indemnify IDX, its officers,
directors, employees, agents, successors, affiliates, and assigns,
from and against any and all loss, damages, expenses (including
attorneys' fees) arising from claims of third parties that the
ChannelHealth Updates, or any component thereof, whether used alone
or in combination with any other item as intended, designed,
suggested or induced by ChannelHealth or its
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agents, infringes or violates any patents, copyrights, trademarks,
trade secrets, licenses, or other proprietary rights of any third
party.
8.2.2 Exceptions. ChannelHealth's obligations to indemnify as set forth in
this Section shall not apply to any claim to the extent that it
arises from (i) any modifications, changes, additions, or
enhancements to the ChannelHealth Updates that have not been made
directly by ChannelHealth or have not been made at its express
direction or under its direct oversight, control or supervision,
(ii) any such modifications made by ChannelHealth at the request or
to the specification of IDX or any of its agents, or (iii) the use
of the ChannelHealth Updates in combination with any other item, or
in any system or method adopted, permitted, induced, contributed to,
or otherwise used by IDX or IDX Customers that is not marketed,
recommended, enabled, contributed to, or otherwise directly or
indirectly suggested by ChannelHealth.
9. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER EXCEPT FOR (i) INDEMNIFICATION
OBLIGATIONS PURSUANT TO SECTION 8 OF THIS AGREEMENT, (ii) THIRD-PARTY CLAIMS FOR
PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, AND OTHER CLAIMS FOR WHICH EITHER
PARTY MAY BE ENTITLED TO INDEMNIFICATION OR CONTRIBUTION FROM THE OTHER PURSUANT
TO THIS AGREEMENT OR AS A MATTER OF LAW, AND (iii) ANY MATERIAL BREACH BY EITHER
PARTY OF ANY WARRANTY SET FORTH IN SECTIONS 4 AND 6 OF THIS AGREEMENT.
10. CONFIDENTIALITY.
10.1 Confidentiality. IDX will receive or learn from ChannelHealth, and
ChannelHealth's parents, subsidiaries and affiliates, and ChannelHealth
will learn from IDX, and IDX's parents, subsidiaries and affiliates,
information, both orally and in writing, concerning the business of
ChannelHealth or IDX, respectively, including, without limitation,
financial, technical and marketing information, data, and information
related to the development of technology and services relating to
ChannelHealth's and IDX's business, as the case may be, and the IDX
Licensed Technology and Allscripts Products, which information is, in the
case of ChannelHealth, proprietary to ChannelHealth and, in the case of
IDX, proprietary to IDX. Both parties hereby agree, as set forth below, to
protect such information, whether furnished before, on or after the date of
this Agreement, as it protects its own similar confidential information,
but never less than commercially reasonable efforts, and not to disclose
such information to anyone except as otherwise provided for in this
Agreement. Such information, in whole or in part, together with analyses,
compilations, programs, reports, proposals, studies or any other
documentation prepared by the parties, as the case may be, which contain or
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otherwise reflect or make reference to such information, is hereinafter
referred to as "Confidential Information." Both parties hereby agree that
the Confidential Information will be used solely for the purpose of this
Agreement and not for any other purpose. Both parties further agree that
any Confidential Information pertaining to the other party is the sole and
exclusive property of such other party, and that the receiving party shall
not have any right, title, or interest in or to such Confidential
Information except as expressly provided in this Agreement. Both parties
further agree to protect and not to disclose to anyone (except as provided
in this Agreement) for any reason Confidential Information pertaining to
the other party; provided, however, that: (a) such Confidential Information
may be disclosed to the receiving party's respective officers, directors,
employees, agents, or representatives (collectively, our "Representatives")
on a "need to know" basis for the purpose of this Agreement on the
condition that (i) each such Representative will be informed by the
receiving party of the confidential nature of such Confidential Information
and will agree to be bound by the terms of this Agreement and not to
disclose the Confidential Information to any other person and (ii) both
parties agree to accept full responsibility for any breach of this Section
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pertaining to the other party may be disclosed upon the prior written
consent of the other party. Both parties hereby agree, upon the request of
the other party, to promptly deliver to the other party at its cost the
Confidential Information pertaining to such other party, without retaining
any copies thereof. Specifically and without limitation, ChannelHealth
agrees to (i) reproduce (and refrain from removing or destroying) copyright
and proprietary rights notices which are placed on the IDX Licensed
Technology or the Allscripts Products, (ii) erase or otherwise destroy,
prior to disposing of media, all portions of IDX Licensed Technology or the
Allscripts Products contained on such media, (iii) notify the other party
promptly in writing upon any officer or director learning of any
unauthorized disclosure or use of the IDX Licensed Technology or the
Allscripts Products and (iv) reasonably cooperate with the other party to
cure any unauthorized disclosure or use of the IDX Licensed Technology or
the Allscripts Products. IDX agrees that ChannelHealth's use and
distribution of the IDX Licensed Technology pursuant to and in accordance
with the terms of this Agreement shall not be a violation of this Section
10.1.
10.2 Non-Confidential Information. The term "Confidential Information" shall not
include any information: (i) which at the time of disclosure or thereafter
is generally available to or known by the public (other than as a result of
a disclosure directly or indirectly by the receiving party); (ii) is
independently developed by the receiving party, without reference to or use
of, the Confidential Information of the other party; (iii) was known by the
receiving party as of the time of disclosure without a breach of
confidentiality; (iv) is lawfully learned from a third party not under
obligation to the disclosing party; or (v) is required to be disclosed
pursuant to a subpoena, court order or other legal process, whereupon the
receiving party shall provide prompt written notice to the other party
prior to such disclosure.
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11. GENERAL
11.1 Force Majeure. Except as expressly provided to the contrary in this
Agreement, neither party shall be liable to the other for any delay or
failure to perform due to causes beyond its reasonable control. Performance
times shall be considered extended for a period of time equivalent to the
time lost because of any such delay.
11.2 Non-revocation. The licenses, immunities, authorities and agreements set
forth in Sections 3 and 5 hereof, once effective, are not terminable,
cancelable, or revocable.
11.3 Notices. Wherever under this Agreement one party is required or permitted
to give notice to the other, such notice shall be deemed given when
delivered in hand, when telecopied or faxed and receipt confirmed, when
sent by overnight courier service to the address specified below, or when
mailed by United States mail, registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
(a) if to IDX:
IDX Systems Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: General Counsel at same address
(b) if to ChannelHealth
ChannelHealth Incorporated
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
P. O. ▇▇▇ ▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Allscripts Healthcare Solutions, Inc.
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
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Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Either party hereto may from time to time change its address for
notification purposes by giving the other written notice of the new
address and the date upon which it will become effective.
11.4 Governing Law. This Agreement shall be governed by, subject to, and
interpreted in accordance with the laws of the State of Delaware, without
regard to its conflicts of laws principles.
11.5 Severability. In the event any provision hereof shall be deemed invalid or
unenforceable by any court or governmental agency, such provision shall be
deemed severed from this Agreement and replaced by a valid provision which
approximates as closely as possible the intent of the parties. All
remaining provisions shall be afforded full force and effect.
11.6 No Waiver. No delay or omission by either party hereto to exercise any
right or power hereunder shall impair such right or power or be construed
to be a waiver thereof. A waiver by either of the parties hereto of any of
the covenants to be performed by the other or any breach thereof shall not
be construed to be a waiver of any succeeding breach thereof or of any
other covenant herein contained.
11.7 Further Assurances and Documents. IDX and ChannelHealth shall take all
actions and do all things, including without limitation the execution and
delivery of instruments and documents, necessary to effectuate the
purposes and intent of this Agreement.
11.8 Independent Contractor. In performance of this Agreement, each party is
acting as an independent contractor. Personnel supplied by a party
hereunder are not the other party's personnel or agents, and each party
assumes full responsibility for their acts. Each party shall be solely
responsible for the payment of compensation to its employees and
subcontractors assigned to perform services hereunder, and such employees
and subcontractors shall be informed that they are not entitled to the
provision of any employee benefits of the other party. Neither party shall
be responsible for payment of workers' compensation, disability benefits,
unemployment insurance or for withholding income taxes and social security
for any employee or subcontractor of the other.
11.9 Personnel Rules and Regulations. The personnel and subcontractors of each
party hereto shall comply with the other party's security regulations
particular to each work location, including any procedures which such
party's personnel and other consultants are normally asked to follow.
Personnel and subcontractors, when deemed appropriate by a party, shall be
issued visitor identification cards. Each such card will be surrendered by
such personnel and subcontractors upon demand of a party. Unless otherwise
agreed to by the parties, the personnel and
12
subcontractors of a party shall observe the working hours, working rules
and holiday schedules of the other party while working on the other
party's premises.
11.10 Assignment. This Agreement shall be binding upon the parties and their
respective successors, representatives and permitted assigns and their
Affiliates, respectively. Neither party may assign this Agreement without
the prior written consent of the other party, except that either party
hereto may assign its rights hereunder to an Affiliate of such party and
either party may, without the consent of the other party, assign and
delegate this Agreement and its rights and obligations hereunder in
connection with a merger, consolidation or sale of substantially all of
its assets (which sale shall include the assignment and assumption of all
rights and obligations under the License Agreement); provided, however,
-------- -------
that such assignee or transferee shall assume all obligations of the
assigning or transferring party and any such assignment shall not relieve
the assigning or transferring party of its obligations hereunder.
11.11 Availability of Records. IDX and ChannelHealth agree that the Secretary
of the Department of Health and Human Services (the "Secretary") and the
Comptroller General of the United States, or the designee or duly
authorized representative of either of them, shall have access to all
books and records of each party pertaining to the subject matter of this
Agreement and the provisions of services under it, in accordance with the
criteria presently or hereafter developed by the Department of Health and
Human Services as provided in Section 952 of the Omnibus Reconciliation
Act of 1980 (the "Act"). Upon request of the Secretary, the Comptroller
General, or the designee or authorized representative of either of them,
IDX and ChannelHealth shall make available (at reasonable times and
places during normal business hours) this Agreement, and all books,
documents and records of IDX and ChannelHealth that are necessary to
verify the nature and extent of the costs of the services provided by IDX
or ChannelHealth furnished in connection with this Agreement.
Notwithstanding the foregoing provisions, the access to the books,
records and documents of IDX and ChannelHealth and any related
organization provided for herein shall be discontinued and become null
and void upon a finding by a court or quasi-judicial body of competent
jurisdiction that this Agreement is outside the scope of the regulatory
or statutory definition of those contracts and agreements included within
the purview of Section 952 of the Act or the rules and regulations
promulgated thereunder.
11.12 Survival. Section 10 shall survive the termination of this Agreement.
11.13 Entire Agreement. This Agreement constitutes the entire sum of changes
of any kind or nature to the License Agreement, and there are no changes,
representations, warranties, covenants or obligations of any kind except
as set forth herein. This Agreement supersedes all prior and
contemporaneous agreements, understanding, negotiations and discussions,
written or oral, of the parties hereto, relating to any transaction
contemplated by this Agreement. There have been no changes to any other
agreement entered in to in connection with the License Agreement, unless
reduced to writing and made a part of an addendum to such other
agreement. Except as otherwise especially provided herein, nothing in
this Agreement is intended or shall be construed to confer upon or to
give any
13
person other than the parties hereto any rights or remedies under or by
reason of this Agreement.
11.14 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
11.15 Amendments. This Agreement may be amended only in writing executed by
the parties affected by such amendment.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement the date
and year first written above by their fully authorized representatives.
IDX SYSTEMS CORPORATION CHANNELHEALTH INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------ --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Vice President and General Counsel Vice President
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SCHEDULE 1
DEFINITIONS
"Allscripts" means Allscripts Healthcare Solutions, Inc., a Delaware
corporation.
"Affiliate" means, with respect to any specified Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person.
"Agreement" means this Amended and Restated Cross License and Software
Maintenance Agreement, including all schedules, exhibits another items attached
hereto and incorporated by reference herein.
"Allscripts Products" means the products and services (i) offered by Allscripts
as more fully described in the Development Plan, (ii) the Physician Channel
Products as of the Closing Date and (iii) all of the products and services to be
developed as set forth under the Development Plan.
"ChannelHealth" means Channelhealth Incorporated, a Delaware corporation, its
successors and assigns, and any other entity which, as of the Closing, Controls,
is Controlled by, or is under common Control with ChannelHealth.
"ChannelHealth Licensed Technology" means (i) the object and Source Code for the
ChannelHealth Works, (ii) ChannelHealth Updates, (iii) the standard, published
editions of textual and graphical works, in whatever form, intended to instruct
users in the use of ChannelHealth Works, and published by ChannelHealth from
time to time during the ChannelHealth Support Term, and (iv) the intellectual
property rights of ChannelHealth, including without limitation patent rights and
copyrights, embodied or contained in the items named in clauses (i) through
(iii).
"ChannelHealth Maintenance" means services to correct errors found in the
ChannelHealth Works and delivered during the ChannelHealth Support Term.
"ChannelHealth Support Term" means the period commencing with the Effective Time
and ending on the expiration of the Initial Term of the Strategic Alliance
Agreement or later if renewed as set forth in this Agreement.
"ChannelHealth Updates" means all additions, corrections, and modifications to
the ChannelHealth Works provided as part of ChannelHealth Maintenance and all
standard new releases, new versions, and updates to the ChannelHealth Works
delivered by ChannelHealth to its customers generally as part of the
ChannelHealth Works during the ChannelHealth Support Term.
"ChannelHealth Works" means the products and works of ChannelHealth known as
"WebWorks Task Engine," "Task Engine Database," "My Health" and "Patient
Messaging" (also known as Secure Messaging).
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"Clinical Management System" or "CMS" means the product formerly marketed by IDX
under the trademark of "CMS" or "Clinical Management System," including its
predecessor product known as "CRS."
"Closing" means the closing of the acquisition by Allscripts of all of the
issued and outstanding capital stock of ChannelHealth pursuant to the Merger
Agreement.
"Closing Date" means the date on which the Closing occurs.
"ConnectR" means the product currently marketed by IDX under the trademark
"ConnectR."
"Core Application" means any software application expressly designed to automate
the business processes of physician billing, physician scheduling, managed care
contract administration, hospital clinical practice, hospital patient
administration, or hospital billing, including by way of example and not in
limitation, as embodied in the products currently marketed by IDX under the
trademarks "IDXtendR," "IDXSite" and "LastWord."
"Development Plan" has the meaning specified in Section 4 of the Strategic
Alliance Agreement.
"DietSite" means the product consisting of the World Wide Web site on the
Internet at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, and all content and services available therein,
----------------
and all future versions thereof.
"Direct Competitor of IDX" means any Person that develops or markets any Core
Application.
"Distribution Partner" means any Person that has the right to distribute,
resell, sublicense, license, sell or otherwise provide a party's products or
services, including by way of example and not in limitation, any reseller,
distributor, licensee, customer, contractor, service provider, outsourcing
vendor or other information technology company.
"eCommerce Channel" means the service currently marketed by IDX under the
service ▇▇▇▇ "eCommerce Channel."
"Effective Time" means the time of completion of the Closing.
"Enterprise Index" means the product currently marketed by IDX under the
trademark of "Enterprise Index."
"IDX Database Information" means information concerning the file structure or
definition of any IDX Products that would be necessary or useful in using
Integration Methods.
"IDX Licensed Technology" means (i) the IDX Software, including the object and
Source Code therefor, as of the Reference Date, (ii) IDX Software Updates, (iii)
17
Integration Methods as of the Reference Date, and (iv) the intellectual property
rights of IDX, including without limitation patent rights (including patent
rights owned by IDX with claims in part or wholely directed to inventions
embodied in, or necessary to implement and practice the Physician Channel alone,
or in combination with any other product or service, invented by former IDX
employees that are now ChannelHealth employees), copyrights, and trade secrets
embodied or contained in the items named in clauses (i) through (iii).
"IDX Names and Marks" means trade names, trademarks, service names and service
marks used by IDX in marketing any of its products and services.
"IDX Products" means all products and services offered by IDX from time to time
during the term of this Agreement, whether or not described in the License
Agreement or the Strategic Alliance Agreement, including without limitation all
(i) computer software and (ii) computerized or automated products, services,
processes, systems, and methods of any kind or nature.
"IDX Software" means (i) the Web FrameWork, (ii) ConnectR, (iii) OutReach, (v)
CMS, (v) Enterprise Index, and (vi) the standard, published editions of textual
and graphical works, in whatever form, intended to instruct users in the use of
the software products named in clauses (i) through (vi) and published by IDX
from time to time during the IDX Support Term.
"IDX Software Maintenance" means services to correct errors found in the IDX
Software, except CMS and OutReach, and delivered during the IDX Support Term as
set forth in this Agreement.
"IDX Software Updates" means all additions, corrections, and modifications to
the IDX Software provided as part of IDX Software Maintenance and all standard
new releases, new versions, and updates to the IDX Software delivered by IDX to
its customers generally as part of the IDX Software during the IDX Support Term.
IDX Software Updates include New Enabling Technologies only to the extent
necessary to achieve compatibility between IDX Products and ChannelHealth Works.
"IDX Support Term" means the period commencing with the Effective Time and
ending on the expiration of the Initial Term of the Strategic AllianceAgreement
or later if renewed as set forth in this Agreement.
"Integration Method" means any method using any programmatic or computerized
means, such as a program or data interface (including without limitation
OutReach and ConnectR), for extracting or adding to any databases included in
any IDX Product or exchanging any data between any IDX Product and any
ChannelHealth Product.
"Merge" means the process of merging all or a portion of existing software or
documentation into other software or documentation or adding to existing
software or documentation so that the resulting software or documentation
contains functionality that is substantially more or different from that of the
existing software or documentation. For
18
purposes of illustration, the IDX Software shall be deemed to have been Merged
into the ChannelHealth Division Works.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of July 13,
2000, by and among Allscripts (formerly named Allscripts Holding, Inc.),
Allscripts, Inc., Bursar Acquisition, Inc., Bursar Acquisition No. 2, Inc., IDX
and ChannelHealth.
"New Enabling Technologies" means tools and other means for building products
and integration methods (similar to the Integration Methods) developed by IDX
and incorporated by IDX into IDX Software Updates after the Effective Time.
Examples of New Enabling Technologies that may at IDX's election be embodied in
IDX Software Updates are the items currently referred to by IDX as "IDX
Objects," "IDXml," and "Tabasco."
"OutReach" means the product currently marketed by IDX under the trademark
"OutReach."
"Patient Channel" means the service currently marketed by ChannelHealth under
the service ▇▇▇▇ "Patient Channel."
"Person" means any individual, partnership, firm, corporation, association,
trust, limited liability company, limited liability partnership, unincorporated
organization or other entity, as well as any syndicate or group that would be
deemed to be a person under Section 13(d)(3) of the Securities Exchange Act of
1934, as amended.
"Physician Channel" means the service currently marketed by ChannelHealth under
the service ▇▇▇▇ "Physician Channel" and the technical components consisting of
CMS, EdiXpress, ChangeWorks, DocWorks, ResultWorks, WebWorks, OrderWorks,
NoteWorks, MedWorks, Physician Homebase and "Project PotatoHead."
"Reference Date" means January 1, 2000.
"Source Code" means the human readable programming statements comprising
software, together with such available programmer notes, specifications,
schematics, file definitions (including without limitation IDX Database
Information) and other documentation that would be necessary for a programmer of
ordinary skill to understand, use and Merge the IDX Software.
"Strategic Alliance Agreement" means that certain agreement entitled "Strategic
Alliance Agreement" by and between Allscripts and IDX executed or intended to be
executed on the Closing Date.
"Web FrameWork" means the product currently marketed by IDX under the trademark
"IDX Web FrameWork" and as more fully described in the Development Plan.
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EXHIBIT 3.4.1
FORM OF
COPYRIGHT ASSIGNMENT
For good and valuable consideration, receipt of which is hereby
acknowledged, the below-named Assignor has assigned and does hereby assign and
transfer to CHANNELHEALTH INCORPORATED, a Delaware corporation with offices at
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Assignee", herein),
Assignor's entire right, title and interest in and to any and all Copyrights in
those certain software products known as "Clinical Management System" and
"Physician Channel" (as defined in the Amended and Restated Cross License and
Software Maintenance Agreement by and between Assignor and Assignee dated
January 8, 2001), and any and all modules, portions, works of authorship,
computer programs, code, databases, programmer notes, documentation, Moral
Rights or other works contained therein or related thereto (the "Works").
For purposes herein, "Copyrights" includes all copyrights throughout the
world including all extensions, renewals and continuations thereof, whether
common law, statutory or otherwise, in the Works, together with the exclusive
right to obtain and register the copyright and to renew copyright protection in
the Works, whether in the name of the Assignee or otherwise, and the right to
bring suit thereunder. For purposes herein, the term "Moral Rights" includes,
without limitation, the right to be known as the author, the right to object to
any alterations to a work, the right to prevent others from being named as the
author of a work, the right to prevent others from falsely attributing to one
the authorship of work that one has not in fact written, the right to prevent
others from making deforming changes in a work, the right to withdraw a
published work from distribution if it no longer represents the views of the
author, and the right to prevent others from using a work or the author's name
in such a way as to reflect on the author's professional standing. Assignor
furthermore waives and agrees never to assert any Moral Rights assignor may have
in the Works.
Assignor agrees that on request and without further consideration, but at
the expense of Assignee, Assignor will communicate to the Assignee or its
representatives or nominees any facts known to the Assignor respecting said
Copyrights, and will testify in any legal proceeding, sign all lawful papers,
execute all applications and confirmations, make all rightful oaths and
generally do everything possible to aid the Assignee, its successors, assigns
and nominees to obtain, maintain, perfect, and enforce rights in the Copyrights.
Signed and sealed this 8/th/ day of January, 2001.
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Print or type Assignor's name and address: SIGNATURE (NOTARIZED)
IDX INVESTMENT CORPORATION By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
South Burlington, Vermont 05403 If Assignor is an entity other
-------------------------------
individual, than an
_______________________________ provide name and title of person
signing:
_______________________________ NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
_______________________________ TITLE: Vice President
STATE OF VERMONT
COUNTY OF ▇▇▇▇▇▇▇▇▇▇
On this 8/th/ day of January, 2001, before me personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. personally known to me to be the person whose name is subscribed to
the within instrument, and acknowledged to me that he executed the same of his
own free will for the purposes therein set forth.
Notary Public
(Notary's Seal)
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