DATABASE AGREEMENT
Exhibit 10.8
This Database Agreement (“Agreement”) is made as of the 1st day of
October, 2005 (the “Effective Date”) by and between WebMD, Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (“WebMD”) and Emdeon Corporation, 000 Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx (“Customer”),
collectively the “Parties”, or each individually a “Party”.
WHEREAS, WebMD owns and operates The Little Blue Book Physician Masterfile physician database,
more specifically described in Schedule A, attached hereto (the “Database”);
WHEREAS, Customer is interested in licensing a portion of the Database from WebMD and WebMD is
willing to provide a license to Customer.
NOW THEREFORE, in consideration of the foregoing premises and the agreements and covenants
herein set forth and for good and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties do hereby agree as follows:
1.0 Grant of Rights.
1.1 Customer is granted a worldwide, royalty free right with no right to sublicense to use
the Database only as a resource in locating and communicating with physicians for its
internal business purposes (the “License”), subject to the terms and conditions of the
Agreement.
1.2 The Database is Licensed for a term of twelve (12) months from Effective Date of this
Agreement. Use thereafter is in violation of this Agreement, and is subject to additional
costs and penalties.
1.3 The Database shall not be used other than according to the terms and conditions
expressly specified in this Agreement or for any unlawful or prohibited advertising or
telemarketing.
1.4 Customer acknowledges and agrees that this is a license agreement and not an agreement
for sale. As such, WebMD assigns no copyrights. As between the parties, all rights, title
and interest in and to the Database, and all worldwide intellectual property rights that are
embodied in, related to, or represented by the Database are, and at all times will be, the
sole and exclusive property of WebMD. All rights not expressly granted in this Agreement
are reserved to WebMD.
1.5 Customer may selectively make, or have made, paper copies of complete items and parts of
items within the Database, and may use, modify and distribute these copies for Customer’s
internal business use purposes as otherwise permitted by this Agreement. Customer may
incorporate portions of the Database in summaries, reports, presentations and analyses and
disclose such to its employees, independent contractors and consultants solely for
Customer’s internal use in the normal course of its business. Disclosures and usage of the
Database or any portion thereof shall be subject to all of the terms and conditions of this
Agreement, and Customer shall be fully responsible for ensuring that its employees,
independent contractors and consultants comply with the terms and conditions of this
Agreement and further that any use of the Database or disclosures hereunder shall be limited
to persons who are bound by written confidentiality obligations not less strict than set out
in this Agreement.
1.6 Customer or its employees or associates will not resell or give the Database or any part
thereof to any third party.
1.7 Customer will not post the Database or any part thereof on any publicly accessible
Internet. Customer may make the Database electronically accessible internally where access
is limited to use of the Database solely in connection with Customer’s internal business
purposes and as permitted in this Agreement. Customer may selectively download information
from the Database, to computer memory, disks or other electronic media, or to laser or
magnetic media and may use, modify and distribute these copies for Customer’s internal use
and as permitted by this Agreement and so long as appropriate payments have been paid to
WebMD.
1.8 Customer may not include the Database or any part thereof in any software program,
including but not limited to a physician practice management program.
1.8 Customer acknowledges the Database and all parts thereof and all information provided to
Customer are confidential to WebMD and the Database and information supplied by WebMD will
be maintained in confidence in reasonably the same manner in which Customer protects like
information with the exceptions of any information which (a) is already known to the public
or becomes publicly available through no fault of Customer, (b) is supplied by WebMD to
another party on a non-confidential basis, (c) is obtained by Customer from a third party
under no obligation not to disclose same, (d) is independently developed by Customer without
reference to any information of WebMD, or (f) is necessary to comply with applicable
federal or state laws, orders or regulations.
2.0 Payment
2.1 Payment of the fees for the Database as set forth in Schedule A shall be made to WebMD
within thirty (30) days after Customer’s receipt of an invoice from WebMD.
2.2 If Customer fails to timely pay any amount due to WebMD, WebMD may charge a late fee on
outstanding amounts until paid in full at the rate of the lesser of: (i) one and one-half
percent (1.5%) per month, or (ii) the highest interest rate permitted by law.
3.0 Warranty
3.1 WebMD represents and warrants that the Database will substantially conform in all
material respects to the current documentation provided by WebMD in connection with the
Database when used in accordance with the technical requirements specified by WebMD. In the
event that the Database fails to perform in accordance with this warranty, Customer shall
promptly inform WebMD of such fact, and, as Customer’s sole and exclusive remedy, WebMD
shall either (a) repair or replace the Database to correct any defects in performance
without any additional charge to Customer, or (b) in the event that such repair or
replacement cannot be done within a reasonable time and at a reasonable cost, terminate the
Agreement and provide Customer, as Customer’s sole remedy, with a pro rata refund of the
unused, prepaid license fees paid to WebMD hereunder with respect to such calendar year.
3.2 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1 OF THIS AGREEMENT, WEBMD MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED: (A) REGARDING THE USEFULNESS, ACCURACY,
COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE DATABASE; OR (B) THAT DEFECTS
IN THE DATABASE HAVE BEEN OR WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, WEBMD
HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
3.3 Customer acknowledges that WebMD does not guarantee the accuracy, timeliness or
completeness of the information obtained from the Database, or warrant any results from
using the Database. WebMD is under no obligation to update the Database or any portion
thereof.
4.0 Limitation of Liability.
4.1 WEBMD’S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION IN ANY WAY
RELATED TO THIS AGREEMENT OR THE DATABASE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL NOT EXCEED FIFTY DOLLARS ($50). THIS
SECTION REFLECTS AN ALLOCATION OF RISK BETWEEN THE PARTIES, IS NOT A PENALTY, AND SHALL BE
EXCLUSIVE. THIS SECTION SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
WARRANTY OR REMEDY.
5.0 Indemnification Customer agrees to indemnify, defend and hold WebMD harmless
from and against any and all liabilities, costs, damages and expenses (including legal fees
and expenses) associated with any claim or action brought against WebMD or its suppliers
that arises from or relates to: (1) any claims relating to the usage of the Database, or any
portion thereof, by Customer or any breach of any representation, warranty, covenant or term
or condition of this Agreement by Customer; (2) any failure of Customer to comply with any
applicable law, regulation or administrative rule; (3) the wrongful acts (including
misrepresentations) or omissions of Customer; and (4) any claim that any materials not
provided by WebMD, violate the rights of any party, including but not limited to
intellectual property rights, rights of privacy or publicity, or that any such materials are
defamatory or are illegal.
6.0 Term
6.1 The Agreement shall commence on the Effective Date and continue therefrom for an
initial term (the “Initial Term”) of one (1) year and shall renew automatically for successive
one (1) year periods (each, a “Renewal Term”) unless: (i) at least thirty (30) days before
termination of the Initial Term or the then-current Renewal Term, as applicable, either Party
notifies the other in writing of its decision not to renew this Agreement (in which event the
Agreement shall terminate as of the expiration of the Initial Term or the then-current Renewal
Term, as applicable), or (ii) this Agreement is otherwise terminated in accordance with its
terms. (Collectively, the Initial Term and the Renewal Terms shall constitute the “Term”.)
6.2 Either party may terminate this Agreement upon written notice if the other party
materially breaches this Agreement and fails to cure such breach within thirty (30) days
following receipt of written notice specifying the breach in reasonable detail. In the
event of termination of this Agreement by Customer due to an uncured breach by WebMD, WebMD
shall provide to Customer a pro-rated refund of the fees paid based upon the number of days
remaining in the then-current term within thirty (30) days of the termination date. Upon
termination of this Agreement for any reason, Customer shall: (i) cease all use of the
information or the Database; and (ii) destroy or return to WebMD all copies of the Database
and all parts thereof and any other confidential information or proprietary materials of
WebMD in its possession.
7.0 Publicity. Neither party shall use the other party’s name in publicity or
advertising involving this Agreement or the Database or otherwise without such party’s prior
written consent. Customer will not refer to physicians as “WebMD Users” (or otherwise make
reference to WebMD) in any communications with physicians, except with WebMD’s prior written
consent.
8.0 General Any notice by a Party under this Agreement shall be in writing and
either personally delivered, delivered by facsimile or sent via reputable overnight courier
(such as Federal Express) or certified mail, postage prepaid and return receipt requested,
addressed to the other Party at the address specified in the preamble or such other address
of which either Party may from time to time notify the other in accordance with this Section
9. All notices shall be in English and shall be deemed effective upon receipt. If WebMD is
unable to perform its obligations under this Agreement due to circumstances beyond its
reasonable control, including, but not limited to, acts of God, earthquakes, hacker attacks,
actions or decrees of governmental bodies, changes in applicable laws, or communication or
power failures, such obligations will be suspended so long as those circumstances persist.
This Agreement shall be interpreted, governed and construed by the Laws of the State of New
York without regard to the actual state or country of incorporation or residence of the
Customer. WebMD is acting in performance of this Agreement as an independent contractor to
Customer. Amendments to this Agreement must be made in writing and signed by both Parties
unless otherwise specified in the Agreement provided that This Agreement constitutes the
entire agreement between the Parties with respect to the subject matter of this Agreement,
and any prior representations, statements, and agreements relating thereto are superseded by
the terms of this Agreement. Customer shall not assign this Agreement, in whole or in part,
to any entity without WebMD’s consent. Any attempt to assign this Agreement, in whole or
part, in contravention of this Section, shall be void. This Agreement shall be binding upon
and shall inure to the benefit of the Parties hereto and their successors and permitted
assigns. Neither Party shall have the right to withhold amounts due under the provisions of
any other agreement against moneys owed under this Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this
Agreement as of the date first written below.
| EMDEON CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
| WEBMD, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
SCHEDULE A
1 Year License with 3 Quarterly Updates*
TLBB Physician Masterfile: $250,000
The Little Blue Book Physician MasterFile contains a directory of practicing physicians and their
medical office information. The data updated by the TLBB in-house staff.
| Data Elements included | ||
| Physician Information Name, address, city, state, zip, Phone number | ||
| Associated addresses | ||
| Affiliations with Hospitals | ||
| Affiliations with HMOs | ||
| Physician ID* | ||
| Practice-ID* | ||
| Practice Name | ||
| Practice Address | ||
Physician and Practice ID are used for identification and cross reference purposes.
