CDHP Marketing Plan Agreement
EXHIBIT 10.2
This Marketing Plan Agreement (the “Agreement”) is made as of September 25, 2006, by
and between WebMD Health Corp., with offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (“WebMD”),
EBS Master LLC (“Master LLC”), Envoy Corporation (“Envoy”), and Advanced Business Fulfillment LLC
(“ABF”).
RECITALS
WHEREAS, WebMD, Envoy and Master LLC have entered into the Amended and Restated Business
Services Agreement dated as of September 25, 2006 (the “BSA”);
WHEREAS, ABF provides print EOB services, which include printing, copying and mailing EOBs
directly to participating members and ABF generally charges service fees for such EOB services as
well as pass-through fees for paper, other materials, printing, inserting and postage costs, and is
seeking to provide an EEOB that is intended to replace print EOBs and provide similar capability in
an electronic format;
WHEREAS, in general the parties contemplate offering customers the opportunity to reduce costs
when they shift participating members from paper EOBs to electronic EOBs;
WHEREAS, WebMD has developed or licensed certain proprietary interactive online personal
health management products and tools which are hosted on servers and made available by means of the
Internet,
WHEREAS, ABF is in the business of providing outsourcing of paid-claims communications
services to its Customers, such as printing and mailing of checks and remittance advices to
providers and EOBs to plan members (the “ABF Services”); and
WHEREAS, the parties contemplate offering certain of WebMD’s online health management services
in connection with electronic EEOBs as provided herein to certain ABF customers and the offering by
ABF of a personal financial record in conjunction with ABF Services to certain other customers as
provided herein, subject to the terms of this Agreement described herein.
NOW, THEREFORE, in consideration of the covenants contained in this Agreement, the Parties,
intending to be legally bound, agree as follows:
TERMS AND CONDITIONS
Section 1. DEFINITIONS.
Unless otherwise defined in the Glossary, the capitalized terms used in this Agreement shall be
defined in the context in which they are used.
Section 2. OWNERSHIP OF INTELLECTUAL PROPERTY; GRANT OF LICENSES; MARKETING OF TOOLS.
2.1. Subject to the terms of this Agreement, WebMD grants to ABF a non-exclusive,
non-transferable, limited right and license during the term of this Agreement to: (a) access,
display, perform, and use the Tools, the Personal Financial Record Application, Customized Pages
and Promotional Material as expressly set forth in this Agreement; and (b) grant End Users and
Customers the right to access, display, perform and use the Tools, the Personal Record Application
and Customized Pages for personal, non-commercial purposes associated with their use of the WebMD
portal provided for End Users’ access with no right to sublicense (the “Site”). Nothing herein
will be construed as a right to allow ABF to offer the Tools or Personal Financial Record
Application to any third party in any manner other than as provided herein. ABF shall enter into
an agreement with each ABF Customer pursuant to which it provides the Tools to such Customer
pursuant to Section 2.8 and each Third Party pursuant to which it provides the Personal Financial
Record Application pursuant to Section 2.10. Any agreement between ABF and a customer shall
contain terms of use no broader than those set forth herein and shall contain disclaimers and
limitations similar to those disclaimers and limitations as set forth herein. ABF acknowledges
and agrees that WebMD shall not be responsible for any representation or warranties made by ABF to
its customers regarding the Tools or Personal Financial Record Application.
2.2. WebMD grants to ABF a world-wide, royalty-free, non-exclusive, non-transferable
license, with no right to sublicense, during the Term of this Agreement to use the WebMD Marks
solely in connection with the Site and to perform its obligations hereunder, in accordance with the
terms and conditions of this Agreement. Title to and ownership of the WebMD Marks shall remain
with WebMD. ABF shall use the WebMD Marks in conformance with any trademark usage policies of
which it is notified in writing. ABF shall submit all proposed uses the WebMD Marks, the
Promotional Material and all other documentation and materials referencing the Tools to WebMD for
prior written approval and shall not use the WebMD Marks, the
Promotional Material or the documentation and materials without such approval, which may be
withheld in WebMD’s sole discretion. WebMD reserves the right to review any approved use of the
WebMD Marks, the Promotional Material and the documentation and materials and to require changes
thereto.
2.3. ABF grants to WebMD a non-exclusive right to use, reproduce, copy, transmit,
distribute, publicly perform and/or display the ABF Marks and ABF Content in connection with the
Tools and Customized Pages to perform its obligations hereunder in accordance with the terms of
this Agreement. Title to and ownership of the ABF Marks shall remain with ABF. WebMD shall use
the ABF Marks in conformance with what ABF has approved of in writing. WebMD shall submit all
proposed uses the ABF Marks to ABF for prior written approval and shall not use the ABF Marks
without such approval, which may be withheld in ABF’s sole discretion. ABF reserves the right to
review any approved use of the ABF Marks and to require changes thereto
2.4. ABF shall not (and shall not contractually permit any of its customers to) sell,
rent, lease, lend, sublicense, distribute, or otherwise transfer or provide access to the Tools,
the Personal Financial Record, the Promotional Material and the Customized Pages (or any part
thereof) to any person, firm, or entity except as expressly authorized herein.
2.5. ABF agrees not to (and will require that its customers contractually agree not to)
modify, adapt, alter or create derivative works from the Tools, the Personal Financial Record
Application or the Promotional Materials or any subpart thereof (including proprietary markings),
or to merge the Tools, the Personal Financial Record or any subpart thereof (including proprietary
markings) with other services or software.
2.6. WebMD owns all copyright and other proprietary rights in the Promotional
Materials, the Tools, the Personal Financial Record Application, and any customization and all
other extensions and Enhancements created pursuant to this Agreement or otherwise. ABF
acknowledges and agrees that this is a license agreement and not an agreement for sale. As such,
Licensor assigns no copyrights. As between the parties, all rights, title and interest in and to
the Promotional Materials, the Tools, the Personal Financial Record Application, including all
updates, upgrades, bug fixes, modifications, enhancements and new versions of the Tools and the
Personal Financial Record Application and all worldwide intellectual property rights that are
embodied in, related to, or represented by the Tools, the Personal Financial Record Application and
the Promotional Materials are, and at
all times will be, the sole and exclusive property of WebMD
or its licensors, as the case may be.
2.7. All rights not expressly granted in this Agreement are reserved to WebMD.
2.8 Integrated Product Offering. During the Term of this Agreement, ABF agrees to use
reasonable commercial efforts to market the Tools (including the Personal Financial Record
Application) to its Customers (and potential Customers), with less than 250,000 lives
(collectively, “ABF Customers”), as permitted hereunder in accordance with the marketing and
promotional guidelines provided by WebMD from time to time. ABF will only offer to ABF Customers
the Tools: (i) as an integrated product solution that integrates the Tools with the member-centric
electronic EOB (e.g., electronic explanation of benefit) transaction services for the benefit of
End Users of ABF Customers via the Site (hereinafter, the “Integrated Product”); or (ii) as agreed
to in advance by WebMD in other cases. ABF shall use reasonable best efforts to increase the
pricing for the Tools at the same percentage that ABF increases the price for its other services.
Notwithstanding the foregoing, pricing for ABF Services when integrated with the Integrated Product
shall be comparable and consistent to the pricing for such ABF Services when sold separate from
the Integrated Product.
2.9 The pricing set forth on Schedule A payable by ABF shall apply to the Tools set forth on such
Schedule as part of the Integrated Product for the ABF Customers. In no event shall ABF offer the
Integrated Product (or any online health or benefit management service or product comparable to any
of the Tools or the Personal Financial Record Application, whether or not integrated with an EEOB
(collectively, “Online Health Tools”), to any other third party, including but not limited to,
customers or potential customers with more than 250,000 lives (each a “Third Party”). In the event
ABF so determines to offer the Integrated Product (or any Online Health Tool) to any Third Party,
ABF shall notify WebMD of the opportunity in advance of such proposed offering in order to discuss
how WebMD wishes to proceed. This will be handled by WebMD on a case by case basis and WebMD
retains the sole discretion as to whether ABF may offer the Integrated Product (or such other
Online Health Tool) and pricing for such product to the Third Party and, if so, the pricing and
other terms that ABF may provide to such Third Party. In the event that ABF desires upgrades,
enhancements, modifications or new features to the Tools or Personal Financial Record
(collectively, “Upgrades”) after the date hereof, the parties will meet to discuss the terms under
which Upgrades may be provided by WebMD, however, the provision of Upgrades will require mutual
consent of both parties in writing.
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2.10 Personal Financial Record Application. WebMD shall use good faith efforts to develop,
at its expense, an online Personal Financial Record application as described herein (the “Personal
Financial Record Application”) within twelve (12) months following the date of this Agreement. The
basic features of the Personal Health Record Application are as described in the separate document
agreed to by the parties. ABF agrees that the Personal Financial Record Application may only be
offered and provided by ABF as an integrated part of the ABF Services to Customers or potential
Customers of ABF that exceed 250,000 lives (“ABF Large Customers) and subject to the terms of this
Agreement. ABF shall keep WebMD apprised of its marketing efforts related to the Personal
Financial Record Application as part of the ABF Services as provided in this Section 2.10. In the
event that in connection with the sale of the Personal Financial Record Application by ABF as
provided in this Section 2.10, an ABF Large Customer requests any Online Health Tools, ABF will
advise WebMD and WebMD may determine how or if to proceed in connection with the sale of Online
Health Tools to such customer by WebMD. If WebMD elects to proceed to negotiate the provision of
Online Health Tools to such customer, WebMD will determine the terms under which such Online Health
Tools will be provided by WebMD, and WebMD shall contract directly with such customer for the
Online Health Tools and shall retain all fees it receives from such customer and WebMD shall not be
required to pay any amounts to ABF as it relates to such customer.
2.11 During the term of this Agreement, WebMD will be the exclusive provider to ABF of the Tools,
the Personal Financial Record Application and any other Online Health Tools Except as permitted
by the terms of Section 2.8 or 2.10, ABF agrees that, during the term of this Agreement, ABF shall
not market or provide any online health or benefit management products or services comparable to
any of those included in the Tools or the Personal Financial Record Application to any third party,
regardless of the such customer’s or potential customer’s number of lives. The obligations
applicable to the Purchaser, ABF and Envoy under this Agreement are in addition to the terms of the
BSA. Notwithstanding anything to the contrary in this Section 2.11 or this Agreement, nothing in
this Agreement is intended to restrict or limit the offering or sale by WebMD of any product or
service to any third party.
Section 3. FEES AND PAYMENT.
3.1 ABF shall pay to WebMD a monthly fee per Participating Member for the Tools provided pursuant
to
Section 2.8 above based on the aggregate number of Participating Members (as part of the ABF
Services provided by ABF to ABF Customers and End Users for a subscription, use or other type of
fee) (“PPPM Fee”) in accordance with the Pricing Schedule attached as Schedule A hereto. ABF shall
notify WebMD within ten (10) days of acquiring a new ABF Customer who will be using the WebMD
services, and shall include in such notification the number of Participating Members and End Users
associated with the Customer. The payments terms set forth in Schedule A are exclusive of any
applicable taxes. ABF shall be solely responsible for any applicable sales, use or other like
taxes based upon WebMD’s fees for providing its services hereunder, excluding however taxes based
upon WebMD’s net income.
3.2 ABF shall pay to WebMD a monthly fee per Eligible Member for the Personal Financial Record
Application provided pursuant to Section 2.10 above based on the aggregate number of Eligible
Members (as part of the ABF Services provided by ABF to ABF Large Customers and End Users (“PEPM
Fee”) in accordance with the separate document agreed to by the parties. ABF shall notify WebMD
within ten (10) days of acquiring a new ABF Large Customer who will be using the Personal Financial
Record Application, and shall include in such notification the number of Eligible Members and End
Users associated with the ABF Large Customer. The payments terms set forth in the separate
document are exclusive of any applicable taxes. ABF shall be solely responsible for any applicable
sales, use or other like taxes based upon WebMD’s fees for providing its services hereunder,
excluding however taxes based upon WebMD’s net income.
3.3 ABF shall pay the Initial One-Time Fee as outlined on Schedule A for the integration of the
Tools into the ABF Services pursuant to Section 2.8. Subject to the terms of this Agreement,
WebMD shall develop Customized Pages for ABF. ABF will receive the specific integration services
as described in Schedule C in exchange for the fees set forth in Schedule A. Within thirty (30)
days following the Effective Date of this Agreement, the parties will finalize Schedule C, the
general form of which is attached hereto as Schedule C. In the event that ABF desires additional
integration or customization services beyond those specified in Schedule C, the parties shall
negotiate a mutually agreeable work order, provided, however, the WebMD hourly rate shall be at
WebMD’s standard rates for similarly situated parties. WebMD shall not perform such additional
integration or customization work until the associated work order is executed by both parties.
3.4 If the Parties agree to add a New Product or New Service, the fees set forth in Schedule A may
be revised by
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WebMD. Any fee revision executed after the date of this contract is subject to approval and thirty
(30) day notice by and to ABF.
3.4 ABF will keep accurate records sufficient to verify ABF’s compliance with the terms of this
Agreement, including calculation of all payments due to WebMD and will provide copies of such
records to WebMD on a monthly basis; provided, however, that ABF shall make available to WebMD all
supporting documentation sufficient to calculate such payments within fifteen (15) business days
after receiving written request from WebMD. During the term of this Agreement and for a period of
one year following termination or expiration of this Agreement, WebMD shall have the right to audit
and review the books and records of ABF in order to verify ABF’s compliance with the terms of this
Agreement and verify that it has made all payments required to be made under this Agreement. WebMD
will be responsible for the cost of the audit.
Section 4. TERM; RENEWAL; TERMINATION.
4.1. This Agreement will commence on the Effective Date and continue for five Contract Years (the
“Initial Term”), unless terminated by the parties in accordance with this Section 4 of this
Agreement. This Agreement shall automatically renew for successive twelve (12) month Contract
Years after the fifth anniversary of the Effective Date, unless either party notifies the other
party in writing of its intent to terminate the Agreement as of the end of the Initial Term, or its
then current term after the Initial Term, at least sixty (60) days prior to expiration of Initial
term or the then-current term, as applicable, in accordance with the notification provisions of
this Agreement.
4.2 Commencing twelve (12) months after the date of this Agreement, WebMD may terminate this
Agreement without cause at any time without liability or further financial obligation upon one
hundred eighty (180) days written notice to ABF, Envoy and Master LLC.
4.3. In the event either party materially breaches this Agreement and fails to cure such breach
within 30 days following receipt of written notice concerning the breach, the other party may
terminate this Agreement.
4.4. Upon expiration or termination of this Agreement for any reason, WebMD, with ABF’s reasonable
assistance if necessary, may contact End Users via email or other similar communication to advise
them of their options regarding transfer or disposition of their information.
4.5. Upon expiration or termination of this Agreement
for any reason, all fees and charges set
forth in Section 3 will be immediately due and payable, and ABF shall promptly discontinue all
further use of WebMD Marks and all further use of the Tools.
4.6 Upon termination of this Agreement for any reason (except for termination by WebMD due to a
breach by ABF, Master LLC or Envoy), at ABF’s election, for those customers receiving the Tools or
Personal Financial Record Application as of the effective date of termination as to which ABF has
continuing contractual obligations to deliver the Tools or Personal Financial Record Application,
WebMD shall continue to provide the Tools or Personal Financial Record Application in accordance
with this Agreement for a period of up to one (1) year from the effective date of termination (the
“Transition Period”) in order to facilitate an orderly transition to another provider. During such
Transition Period, ABF shall continue to pay WebMD for all customers that continue to receive
access to the Tools or Personal Financial Record Application during the Transition Period at the
applicable prices for the Tools or Personal Financial Record Application at the time of
termination. The terms of this Agreement applicable to such customers shall remain in full force
and effect during such Transition Period.
Section 5. RESPONSIBILITIES; CHANGE CONTROL PROCEDURES; DELIVERY AND ACCEPTANCE
5.1 WebMD shall: (a) provide service level guarantees to ABF in accordance with the Service Level
Agreement, attached hereto as Schedule D; and (b) provide ABF with maintenance as described on
Schedule C attached hereto; and (c) comply with all the provisions of Section 9, below, for the
protection of End User data.
5.2 ABF shall: (a) provision, secure and maintain the appropriate hardware and software necessary
to implementation and use and access the Tools; (b) collaborate with WebMD to implement placement
and promotion of the Tools as detailed in the final Implementation Plan specified in Schedule C;
and (c) comply with all the provisions of Section 9, below, in protecting End User data.
5.3 ABF shall market the Tools and the Personal Financial Record Application as provided by the
terms of this Agreement, and provide implementation and support services to its Customers and End
Users (“ABF Obligations”). ABF Obligations shall include but not be limited to marketing, rollout
scheduling, project planning, management and other such resources as may be reasonably necessary
for implementation and rollout and comprise those
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other activities set out and described in Schedule G, which is attached hereto and made a part
hereof.
5.4 Upon effectiveness of this Agreement and on an ongoing basis thereafter, ABF and WebMD shall
meet to discuss ABF marketing efforts under the Agreement.
5.5 ABF may request (or WebMD may suggest) that reasonable changes be made to the scope of Schedule
C. WebMD may (at its sole discretion) provide ABF with a written change proposal setting forth the
proposed adjustments to Schedule A and Schedule C (such as price adjustments, schedule impact,
etc.). If ABF is in agreement with the change proposal, ABF will indicate its acceptance of such
proposal by signing such proposal or otherwise entering into a written agreement or amendment with
WebMD. WebMD shall have no responsibility to proceed with any requested or proposed change until
WebMD’s change proposal is accepted in writing by ABF. Upon ABF’s acceptance of a change proposal,
Schedule A and Schedule C shall be deemed to be modified as specified in such change proposal.
5.6 ABF shall provide plan data information relevant to ABF Customers’ health plans and updates
thereto (“Plan Data”) as often as is deemed reasonably necessary by ABF to keep the Plan Data
current and accurate, consistent with the provisions of Schedule C. WebMD agrees to implement
changes to such Plan Data as promptly as practicable. WebMD acknowledges that Plan Data provided
by ABF hereunder has been furnished to ABF by the relevant health plans and/or ABF Customers.
WebMD shall not be responsible for the accuracy of any Plan Data furnished to WebMD.
Section 6. REPRESENTATIONS; WARRANTIES; AND DISCLAIMERS
6.1 Each Party hereby represents and warrants that: (a) it is a corporation duly organized and
validly existing and in good standing under the laws of the state of its incorporation; (b) it has
full power and authority to enter into this Agreement; and (c) it shall use, exchange and forward
PHI in compliance with all applicable laws and regulations.
6.2 WebMD represents and warrants that the Tools will substantially conform in all material
respects to the requirements of Schedule C when used in accordance with the technical requirements
specified by WebMD and that the Personal Financial Record Application will perform in accordance
with the specifications set forth in the document agreed to by the parties. In the event that the
Tools fail to perform in accordance with this warranty, ABF shall
promptly inform WebMD of such
fact, and, as ABF’s sole and exclusive remedy, WebMD shall either (a) repair or replace the Tools
or Personal Financial Record Application to correct any defects in performance without any
additional charge to ABF, 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 ABF, as ABF’s sole
remedy, with a pro rata refund of the unused, prepaid license fees paid to WebMD hereunder with
respect to such calendar year.
6.3 ABF represents and warrants that: (a) it has all right, title and interest to use any of the
ABF Content it provides to WebMD; (b) is solely responsible to the Customer or the End User for his
or her use of such ABF Content; (c) it will not use (or contractually allow use of) the Tools, the
Personal Financial Record Application and the Customized Pages in a manner that is prohibited by
any law or regulation or any WebMD policy; and (d) it has or will gain contractual assurance from
its customers, prior to use, that the relevant health plan’s privacy notices permit WebMD to use
and transfer data to customer or the relevant health plan in accordance with the WebMD Privacy
Policy.
6.4 THE TOOLS, THE PERSONAL FINANCIAL RECORD APPLICATION AND ALL OTHER DELIVERABLES HEREUNDER ARE
PROVIDED “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.2 ABOVE, WEBMD DOES NOT WARRANT AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATION THAT THE TOOLS, THE PERSONAL FINANCIAL RECORD APPLICATION
AND ALL OTHER DELIVERABLES HEREUNDER, THE PROMOTIONAL MATERIAL, ANY DOCUMENTATION, ANY ADDITIONAL
WORK, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET ABF’S, ENVOY’S OR THE PURCHASER’S
REQUIREMENTS OR THAT ABF’S USE OF THE TOOLS, THE PERSONAL FINANCIAL RECORD APPLICATION OR ANY OTHER
DELIVERABLE HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE. THE EXPRESS WARRANTIES IN SECTION 6.2
ARE IN LIEU OF ALL OTHER WARRANTIES BETWEEN THE PARTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
AND SUCH WARRANTIES ARE HEREBY DISCLAIMED. ABF ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES
OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF
WEBMD’S SUPPLIERS OR AGENTS.
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6.5 ABF EXPRESSLY ACKNOWLEDGES AND AGREES THAT WEBMD IS NOT RESPONSIBLE FOR THE RESULTS OF A USER’S
DECISION RESULTING FROM THE USE OF THE TOOLS, THE PERSONAL FINANCIAL RECORD APPLICATION OR ANY
DELIVERABLE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, A USER CHOOSING TO SEEK OR NOT TO SEEK
PROFESSIONAL MEDICAL CARE, OR A USER CHOOSING OR NOT CHOOSING SPECIFIC TREATMENT BASED ON THE
INFORMATION OBTAINED FROM THE TOOLS OR PERSONAL FINANCIAL RECORD APPLICATION.
6.6 ABF acknowledges that the Tools and the personal financial record application are not intended
to replace professional medical advice and are not tools for diagnosing the existence of a specific
disease in any given individual. ABF further acknowledges that WebMD does not guarantee the
accuracy, timeliness or completeness of the information obtained from the Tools, the Personal
Financial Record Application or any deliverable hereunder, or warrant any results from using the
Tools, the Personal Financial Record Application or any deliverable hereunder. The information may
become unreliable for many reasons including subsequent research, findings and test results.
Except for WebMD’s obligations under Section 6.2, WebMD is under no obligation to update the
information.
6.7 ABF acknowledges that WebMD shall not be responsible for any representation or warranties made
by ABF to its customers regarding the Tools, the Personal Financial Record Application or any other
deliverable hereunder.
6.8 WebMD makes no guarantees as to the amount of revenues relating to the Tools, the Personal
Financial Record Application or any deliverable hereunder, or the number of users of such products.
Section 7. LIMITATION OF LIABILITY.
NO PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY, OR ANY PARTY CLAIMING THROUGH IT, WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER
INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE SERVICE OR OTHERWISE, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR
WILFUL BREACH OF THIS AGREEMENT, BREACH OF
CONFIDENTIALITY OR IN CONNECTION WITH AN INDEMNIFICATION OBLIGATION, IN NO EVENT SHALL A PARTY’S
AGGREGATE LIABILITY HEREUNDER ARISING OUT OF THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE GREATER
OF (I) THE AGGREGATE FEES PAID TO WEBMD APPLICABLE TO THE CONTRACT YEAR IN WHICH THE CLAIM
OCCURRED, OR (II) THE APPLICABLE TARGET FEES, APPLICABLE TO THE YEAR IN WHICH THE CLAIM OCCURRED.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT
LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION,
INFRINGEMENT, MISAPPROPRIATION AND OTHER TORTS. BOTH PARTIES ACKNOWLEDGE THAT THE FEES SET FORTH
IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD
ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
Section 8. CONFIDENTIALITY AND NON-DISCLOSURE.
The parties agree that, without the express written consent of the other, none of their officers,
directors, employees or agents will use or disclose to any third party (other than agents,
suppliers, service providers, contractors, consultants and advisors, on a need-to-know basis in
connection with such party’s own, proper use) any non-public, proprietary, confidential and/or
competitively sensitive information furnished by or obtained from the other party, which he or she
has reason to believe is to of a proprietary, confidential and/or competitively sensitive nature,
or which the other party designates as confidential at the time of disclosure (“Confidential
Information”). Confidential Information includes, but is not limited to, the specific terms of
this Agreement, but not the fact that ABF is a client of WebMD that uses WebMD’s services, or that
WebMD is a supplier/service provider of ABF. The foregoing obligations of non-use and
non-disclosure shall not apply to, and a party’s proprietary rights as outlined hereunder shall not
apply to, any materials or information (i) that the receiving party can show is in the public
domain through no fault of the receiving party, (ii) that was properly known by the receiving party
without obligations of confidentiality prior to disclosure by the disclosing party, (iii) that was
independently developed by the receiving party without reference to the Confidential Information of
the disclosing party, or (iv) which is publicly disclosed to the receiving
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party by a third party without obligations of confidentiality. ABF specifically agrees not to copy
or distribute the Tools without the prior written consent of WebMD. However, Confidential
Information does not include End Users’ personal information, the confidentiality of which is
governed by Section 9 of this Agreement.
Section 9. PROTECTION OF END USER DATA.
9.1. WebMD shall enter into the subcontractor business associate agreement attached as Schedule E
with ABF prior to WebMD’s receipt of any PHI from an End User. Subject to applicable law, WebMD
shall have access to and use of End User data and shall have the right to use such data on an
individual End User basis solely to fulfill its obligations under this Agreement. WebMD reserves
the right to use Aggregate Data for any purpose, but in no event shall WebMD use such data in a
manner that identifies an End User, Customer or ABF. WebMD shall provide to End Users a privacy
policy, attached hereto as Schedule F, which privacy policy may be amended from time to time by the
WebMD and ABF as required to comply with applicable law, rule or regulation.
9.2. WebMD will provide ABF (or its designated representative) with electronic Reports in WebMD’s
standard format comprised of Aggregate Data that can be accessed online via ABF’s confidential
password on such terms as agreed to by parties, unless otherwise provided for herein.
9.3. Each party shall be responsible for complying with the confidentiality and privacy statements
and other such policies as displayed in connection with the Tools and the Customized Pages and as
agreed to in this Agreement.
Section 10. INDEMNIFICATION.
10.1 WebMD will indemnify, defend and hold harmless, at its own expense, any claims, suits, losses,
damages, liabilities, costs, expenses and actions against ABF and its affiliates and its and their
respective officers, directors, officers, employees, agents, successors and assigns brought by a
third party based upon a claim that the Tools, or the Personal Financial Record Application when
used in accordance with this Agreement, infringe any proprietary right of any third party, and
WebMD will pay those costs and damages finally awarded against ABF (including attorneys’ fees) in
any such action that are specifically attributable to such claim or those costs and damages agreed
to in a monetary settlement of such action; provided, however, that WebMD shall have no obligation
pursuant to the foregoing indemnification provision to the extent that any claim is
based on (a)
any use of the Tools or Personal Financial Record Application in violation of this Agreement, (b)
any use of the Tools or Personal Financial Record Application in conjunction with any third party
product, data, hardware or software not provided by WebMD, or (c) any ABF Content or ABF Marks. If
ABF’s use is enjoined by reason of an infringement claim, WebMD’s sole obligation shall be to
either (i) procure the right for ABF to continue using the Tools, (ii) replace or modify the
components of the Tools subject to the infringement claim with non-infringing components of
substantially equivalent functionality, or (iii) if neither of the above are available, to refund
to ABF a prorata portion, if any, of the unused fees prepaid for access to the Tools or Personal
Financial Record Application. The foregoing states the entire liability of WebMD with respect to
any infringement claims and ABF hereby expressly waives any other such liabilities.
10.2. ABF will indemnify, defend and hold harmless WebMD and its affiliates and its and their
respective officers, directors, officers, employees, agents, successors and assigns with respect to
any claim, suit, loss, liability, demand, cause of action, debt or liability, including reasonable
attorneys’ fees, to the extent that it is based upon: any third party claim that related to or
arising from a breach of any of ABF’s representations, warranties obligations, covenants or
agreements hereunder or the negligence or willful misconduct of ABF.
10.3. A party seeking indemnification hereunder shall give the party from whom indemnification is
sought reasonably prompt notice of the relevant claim; provided, however, that failure to provide
such notice shall not relieve the indemnifying party from its liability or obligation hereunder
except to the extent of any material prejudice directly resulting from such failure. The
indemnified party shall have the right to participate in the proceeding at its own expense.
Section 11. DISPUTE RESOLUTION
11.1 In an effort to resolve informally and amicably any claim or controversy arising out of or
related to this Agreement or the breach, termination, enforcement, interpretation or validity
thereof, each party shall notify the other of any difference or dispute hereunder that requires
resolution. ABF and WebMD shall each designate an executive officer to investigate, discuss and
seek to settle the matter between them. If the two are unable to settle the matter within 30 days
after such notification, or such longer time period as they shall agree upon, either party may
initiate final and binding arbitration, in accordance with Section 11.2 to resolve such matter,
which the parties agree is the sole and
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exclusive procedure for any such dispute, except as otherwise provided therein. All offers,
promises, negotiations, conduct and/or statements, whether oral or written, made in the course of
the settlement discussions contemplated by this Section 11.1 by any of the parties, their agents,
employees, experts and/or attorneys are, and shall be deemed, confidential, and made executed and
delivered solely for the purposes of settlement or compromise, and inadmissible for any purpose,
including, without limitation, impeachment, in any arbitration or other proceeding involving the
parties or any third parties, or in any court or forum whatsoever, provided however that the use of
a statement or information as contemplated in a settlement under this Section 11.1 that would be
admissible or discoverable shall not be rendered inadmissible or non-discoverable solely as a
result of such use.
11.2 The following process shall be followed if, and after, the informal procedures in Section 11.1
above do not result in a resolution of the matter. Any dispute, claim or controversy arising out
of or relating to this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of this agreement to
arbitrate (collectively, a “Claim”), shall be determined by binding arbitration in New
York, New York before three arbitrators. The arbitration shall be administered (including
selection of the arbitrators) by JAMS (xxx.xxxxxxx.xxx) pursuant to its Comprehensive Arbitration
Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This
clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a
court of appropriate jurisdiction permitted under the terms of this Section 11.1. In the event of
any Claim under this Agreement or the enforcement of any right under this Agreement by either
party, regardless of whether WebMD or ABF prevails, each party hereby agrees that it shall be
responsible for all its own costs and expenses relating thereto, including the reasonable attorneys
fees and expenses of attorneys and other professionals it may retain. The parties hereby agree to
submit to the exclusive personal and subject matter jurisdiction and to the venue of the Supreme
Court of the State of New York, County of New York, for all purposes associated with this
Agreement, including the agreement to arbitrate, enforcing the agreement to arbitrate, and seeking
provisional relief pending award and entering judgment upon the award. Nothing contained in this
Section shall preclude the arbitrators from granting, where appropriate, injunctive or other
provisional relief pending a final award. Notwithstanding the provisions of Section 11, either
party may pursue any provisional remedy (including but limited to preliminary injunctive relief) to
either restrain or mandate certain conduct in the courts designated in this
Section. The parties
shall have the right to obtain such provisional injunctive relief from a court of law designated in
this Section pending the determination and award in the arbitration proceeding. If JAMS is no
longer available or is unwilling to accept the designation provided hereunder, the parties shall
mutually agree upon a substitute professional neutral administrator to replace JAMS.
Section 12. MISCELLANEOUS
12.1 Nothing in this Agreement is intended to require either party to terminate existing
contractual relationships with any third party, and such agreements shall remain in effect on the
terms and conditions in existence as of the date hereof.
12.2 The parties hereto agree that irreparable damage would occur in the event any provision of the
Agreement was not performed in accordance with the terms hereof and that the parties hereto shall
be entitled to specific performance of the terms hereof, in addition to any other remedy at law or
in equity.
12.3 This Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
12.4 Amendments to this Agreement shall be in writing and must be signed by both parties to be
effective.
12.5 No failure or delay by any party in exercising any right, power or privilege hereunder (other
than a failure or delay beyond a period of time specified herein) shall operate as a waiver thereof
and no single or partial exercise thereof shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
12.6 All notices, requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in
person, by courier service, by fax or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at such other address
for a party as shall be specified by notice given in accordance with this Section 12.6.
If to Envoy/ABF:
Envoy Corporation
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
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If to Master LLC:
c/o Envoy Corporation
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
If to WebMD:
or at such other address as may be substituted by notice given as herein provided.
12.7 No party shall assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the other parties. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of the parties hereto as hereinafter
provided. In addition, in the event of any sale, transfer, change of control or other disposition,
restructuring or reorganization of ABF, Envoy or Master LLC or their businesses (including by way
of stock sale, by sale of all or substantially all its assets or by any other means or manner or
structure) to a third party, Master LLC, ABF, Envoy and their businesses shall continue to be
subject to the obligations applicable to it and its business under this Agreement. This Agreement
shall remain in effect in accordance with its terms regardless of the percentage ownership, if any,
that Emdeon holds of WebMD, and regardless of any sale, transfer, change of control or other
disposition, restructuring or reorganization of Emdeon or WebMD or any of their respective
businesses (including by way of stock sale, by sale of all or substantially all its assets or by
any other means or manner or structure). The Purchaser agrees to ensure the compliance by ABF with
ABF’s obligations hereunder.
12.8 No person other than the parties hereto and their successors and permitted assigns are
intended or shall be deemed to be a beneficiary of this Agreement.
12.9 The headings and subheadings in this Agreement are included for convenience and identification
only and are in no way intended to describe, interpret, define or limit the scope, extent or intent
of this Agreement or any provision hereof.
12.10 If any term or other provision of this Agreement is held to be invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other conditions and
provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions is not affected in any manner materially adverse to any party. Upon
a determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually acceptable manner in order
that the transactions contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
12.11 This Agreement constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
12.12 The parties hereto are independent contractors engaged in the operation of their own
respective business. Neither party is, or is to be considered as, the agent or employee of the
other for any purpose whatsoever. Neither party has the authority to enter into contracts or
assume any obligations for the other party or make any warranties or representations on behalf of
the other party. Nothing in this agreement shall be construed to establish a relationship or joint
venturers between the parties.
12.13 The rights and remedies provided by this Agreement are cumulative and the use of any one
right or remedy by any party shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the parties may have
by law, statute, ordinance or otherwise.
12.14 Each party will use reasonable best efforts to take or cause to be taken all action, to do or
cause to be done, and to assist and cooperate with the other party in doing, all things necessary,
proper or advisable to consummate the transactions contemplated by this Agreement, including the
execution and delivery of such instruments, and the taking of such other actions as the other party
hereto may reasonably require in order to carry out the intent of this Agreement.
12.15 Each party hereto acknowledges and agrees it has had the opportunity to draft, review and
edit the language of this Agreement and that no presumption for or against any party arising out of
drafting all or any part of this Agreement will be applied in any dispute relating to, in
connection with or involving this Agreement. Accordingly, the parties hereto hereby waive the
benefit of any rule of law or any legal decision that would require, in cases of uncertainty, that
the
language of a contract should be interpreted most strongly against the party who drafted such
language.
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Glossary
“Aggregate Data” will mean a set or compilation of data collected by WebMD from a group of
End Users and that does not include any individual End User’s personally identifiable information.
“Contract Year” will mean, in respect of the first year, the twelve (12) month period commencing on
the first Launch Date, and in respect of the second and successive years, the twelve month period
commencing upon expiration of the preceding Contract Year.
“Customer” will mean any health plan or third party administrator with whom ABF has entered into an
agreement whereby such health plan or third party administrator purchases ABF Services from ABF for
its members and their dependents.
“Customized Page(s)” will mean an Internet site that (i) contains the Tools, (ii) is personalized
and branded to incorporate ABF’s look and feel, including ABF Content and ABF Marks, in accordance
with the specifications set forth in Schedule C, and (iii) is branded on each page with WebMD
Marks.
“Data Interchange” will mean the electronic transmission of data between WebMD and ABF based upon
WebMD’s data interchange specifications.
“End User” will mean an Participating Member and those dependents of any such Participating Member
who have attained the age of eighteen (18).
“Enhancements” will mean updates to the Tools that are automatically added by WebMD to ABF’s
implementation on the release date of the Enhancement for no additional charge to its customers
generally.
“ABF Content” will mean the content and promotional material ABF from time to time provides to
WebMD to use in connection with the Customized Pages, including, but not limited to, editorial and
informational content, and the content specific to the look and feel of ABF’s navigational tool
bars, etc.
“ABF Marks” will mean ABF’s trademarks, service marks, trade names, and logos.
“Launch Date” will mean the date of the closing of the transaction contemplated by the
Agreement and Plan of Merger among Emdeon, Master LLC, EBS Holdco, Inc., MediFax-EDI Holding
Company, EBS Acquisition LLC, GA EBS Merger LLC and EBS Merger Co.
“New Product” or “New Service” will mean modules, functions, products or services that are not
covered under this Agreement on the Effective Date and that are added after the Effective Date.
“Participating Member” will mean an authorized member of Customer, included in the Customer’s
monthly fee calculation, who is permitted to use the Tools through the Site by virtue of electing
to utilize ABF’s electronic member-centric transaction services and any authorized member of a
Customer referred to in Section 2.8(ii) who is eligible to access and permitted to use the Tools.
“PHI” will mean protected health information, which will have the meaning assigned to it in the
Health Insurance Portability and Accountability Act of 1996 and implementing regulations.
“Reports” will mean End User Aggregate Data provided to ABF by WebMD as described herein.
“Tools” will mean those proprietary interactive online personal health management products and
services (including the related databases and content), developed, implemented, and hosted by WebMD
and provided to ABF hereunder to be made available at the Site(s) and for the End Users and more
specifically identified in Section I and Section II of Exhibit A (and more detailed descriptions of
each of the Tools set forth in Section I
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and II are set forth in Exhibit B).
“WebMD Marks” will mean WebMD’s trademarks, service marks, trade names, and logos.
“Promotional Material” will mean any promotional material that WebMD may provide to ABF in
association with this Agreement.
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BY EXECUTING THIS MARKETING PLAN AGREEMENT BELOW, EACH PARTY INDICATES THAT IT HAS READ,
UNDERSTANDS AND AGREES TO BE LEGALLY BOUND BY THIS AGREEMENT, INCLUDING THE ATTACHED TERMS AND
CONDITIONS.
| WebMD Health Corp: |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| Executive Vice President | ||||
EBS Master LLC
By: EBS Holdco, Inc., its sole member
By: EBS Holdco, Inc., its sole member
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx | ||||
| Executive Vice President | ||||
| Advanced Business Fulfillment LLC: |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx | ||||
| Executive Vice President | ||||
| ENVOY Corporation: |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx | ||||
| Executive Vice President | ||||
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