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[E-MEDX LOGO] [XXXXX.XXX LOGO]
PRODUCT COLLABORATION AGREEMENT
THIS PRODUCT COLLABORATION AGREEMENT ("Agreement") is made and entered into as
of this 19th day of January 2000 by and between e-MEDx, Inc., a Delaware
corporation ("XXxxx.xxx") and, XXxxx.xxx, Inc., a Delaware corporation
("XXxxx.xxx").
RECITALS:
o e-MEDx develops, owns and/or markets software products and
services accessible through the Internet including but not
limited those products described in Attachment A, attached hereto
(collectively and as further defined below, the "e-MEDx
Product"); and
o XXxxx.xxx develops, owns and/or markets software products and
services accessible through the Internet including but not those
products described in Attachment B, attached hereto (as further
defined below, the "XXxxx.xxx Product"'); and
o e-MEDx and XXxxx.xxx desire to enter into this Agreement in order
to integrate the e-MEDx Product and XXxxx.xxx Product as Combined
Product for the use of e-MEDx customers, subscribers and users of
the e-MEDx Product as well as for the use of XXxxx.xxx customers,
subscribers and users of the XXxxx.xxx Product.
o The Parties wish to enter into a long-term agreement to allow
e-MEDx's and XXxxx.xxx's customers access to each others products
as a stand-alone application and/or as an interface to other
application products.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Recitals; Schedules, Exhibits and Attachments. The foregoing
recitals are true and correct and together with the schedules,
exhibits and attachments referred to hereinafter are incorporated
herein by this reference.
2. Definitions. The following terms when used in this Agreement
shall have the meanings indicated below:
(a) Application Program means the application software
programs developed to integrate the XXxxx.xxx Product
with the e-MEDx Product to derive the Combined
Product as a bundled package.
(b) Combined Product means the products resulting when
the e-MEDx Product and the XXxxx.xxx Product are
integrated. The Application Program, if any,
developed for each Combined Product is a component of
such Combined Product.
(c) End User means that person or entity that uses the
Combined Product as a part of the e-MEDx Product or
the XXxxx.xxx Product
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(d) End User License Agreement means the standard
agreement accompanying each copy of a product which
specifies the terms and conditions of the license to
use the product granted to the End User.
(e) XXxxx.xxx Product means the standard proprietary
XXxxx.xxx software listed in Attachment B, which
includes: (i) the object code form of the computer
programs, including but not limited to install code
and library structures to allow e-MEDx to build an
integrated install package for installation of the
Combined Product, in appropriate media; (ii) User
Documentation (soft copy in Microsoft Word document
format); and (iii) any necessary hardware.
(f) e-MEDx Product means the standard proprietary e-MEDx
software listed Attachment A, which includes: (i) the
object code form of the computer programs, including
but not limited to install code and library
structures to allow XXxxx.xxx to build an integrated
install package for installation of the Combined
Product, in appropriate media; (ii) User
Documentation (soft copy in Microsoft Word document
format); and (iii) any necessary hardware.
(g) User Documentation means the textual written
materials relating to the installation and use of the
XXxxx.xxx Product or the e-MEDx Product which either
XXxxx.xxx or e-MEDx, as the case may be, normally
distributes to End Users of its respective products,
and which are made available by such party by
distribution hereunder.
3. XXxxx.xxx Licenses
XXxxx.xxx hereby grants to e-MEDx a nonexclusive license to use
the XXxxx.xxx Product as necessary to develop the Combined
Product. XXxxx.xxx grants to e-MEDx a non-exclusive license, for
use of the XXxxx.xxx Product as a component of the e-MEDx Product
by End Users in accordance with the terms and conditions of this
Agreement. XXxxx.xxx hereby further grants to e-MEDx the
nonexclusive right to use and modify the User Documentation to
XXxxx.xxx Product as necessary to create integrated User
Documentation for the Combined Product for distribution to
Combined Product End Users. All other rights are hereby reserved
to XXxxx.xxx. XXxxx.xxx specifically reserves the right to market
XXxxx.xxx Product to or through any other person or entity in the
sole discretion of XXxxx.xxx. The E-MEDX agrees not to market the
Combined Product to any other software reseller or Healthcare
Internet Portal without the express written consent of XXXXX.XXX.
(i) Trademark Licenses. During the term of this
Agreement, e-MEDx is authorized by XXxxx.xxx to
advertise XXxxx.xxx Product as they relate to the
Combined Product in advertising media of e-MEDx's
choice. XXxxx.xxx hereby grants to e-MEDx a
nonexclusive license to use the XXxxx.xxx trademarks
(collectively, the "XXxxx.xxx Trademarks") for the
purposes and in the context of identifying the origin
of XXxxx.xxx Product as part of, and in connection
with the marketing of, the Combined Product. e-MEDx
agrees to include in each advertisement, brochure, or
other such use of the XXxxx.xxx Trademarks that are
federally registered the registered trademark
symbol(R) and the following statement:
"`[XXXX XXxxx.xxx]' is a registered trademark of
XXxxx.xxx"
and for the XXxxx.xxx Trademarks that are not
federally registered, the trademark symbol "TM" and
the following statement:
"`[XXXX XXxxx.xxx]' is a trademark of XXxxx.xxx"
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e-MEDx shall not market the Combined Product in any
way that implies that XXxxx.xxx Product are the
proprietary product of e-MEDx or of any party other
than XXxxx.xxx.
4. e-MEDx Licenses
e-MEDx hereby grants to XXxxx.xxx a nonexclusive license to use
the e-MEDx Product as necessary to develop the Combined Product.
e-MEDx grants to XXxxx.xxx a non-exclusive license, for use of
the e-MEDx Product as a component of the XXxxx.xxx Product by End
Users in accordance with the terms and conditions of this
Agreement. e-MEDx hereby further grants to XXxxx.xxx the
nonexclusive right to use and modify the User Documentation to
eMEDx Product as necessary to create integrated User
Documentation for the Combined Product for distribution to
Combined Product End Users. All other rights are hereby reserved
to e-MEDx. e-MEDx specifically reserves the right to market
e-MEDx Product to or through any other person or entity in the
sole discretion of e-MEDx. XXXXX.XXX agrees not to market the
Combined Product to any other SOFTWARE RESELLER or Healthcare
Internet Portal without the express written consent of e-MEDx.
(i) Trademark Licenses. During the term of this
Agreement, XXxxx.xxx is authorized by e-MEDx to
advertise e-MEDx Product as they relate to the
Combined Product in advertising media of XXXXX.XXX's
choice. e-MEDx hereby grants to XXxxx.xxx a
nonexclusive license to use the e-MEDx trademarks
(collectively, the "e-MEDx Trademarks") for the
purposes and in the context of identifying the origin
of eMEDx Product as part of, and in connection with
the marketing of, the Combined Product. XXXXX.XXX
agrees to include in each advertisement, brochure, or
other such use of the e-MEDx Trademarks that are
federally registered the registered trademark
symbol (R) and the following statement:
"'[XXXX e-MEDx]' is a registered trademark of e-MEDx"
and for the e-MEDx Trademarks that are not federally
registered, the trademark symbol "TM" and the
following statement:
"'[XXXX e-MEDx]' is a trademark of e-MEDx"
XXxxx.xxx shall not market the Combined Product in
any way that implies that e-MEDx Product are the
proprietary product of XXxxx.xxx or of any party
other than e-MEDx.
5. Collaborative Obligations.
(a) Mutual Obligations.
(i) Development of Combined Product and Combined
Product User Documentation. The parties
shall collaborate in developing Combined
Product in accordance with the functional
and design specifications and implementation
schedule agreed to for the Combined Product
development project, said specifications and
schedule to become a Project Attachment to
this Agreement as set forth in Attachment E.
The parties shall also collaborate in the
development of User Documentation for the
Combined Product.
(ii) Notification and Record Requirements. Each
party shall notify the other party in
writing of any claim or proceeding involving
the Combined Product no later than ten days
after such party learns of such claim or
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proceeding. Each party shall also report
promptly to the other party all claimed or
suspected defects in the Combined Product.
(iii) Compliance with Law. Each party agrees to
comply, and to cause its respective
Distributors to comply, with all applicable
federal, state and local laws and
regulations in performing its duties
hereunder.
6. Financial Arrangement. The pricing and other financial
arrangements for the marketing and sale of the Combined Product
and e-MEDx Product, in the case of XXxxx.xxx, and the marketing
and sale of the Combined Product and XXxxx.xxx Product, in the
case of e-MEDx, are set for the Attachment F, attached hereto.
7. Representations and Warranties. Each party hereby represents and
warrants to the other party hereto:
(a) that the use or distribution of its products either
by themselves or as part of the Combined Product, or
the exercise of the licenses granted hereunder, does
not and will not violate the intellectual property
rights of any third party under applicable copyright,
trademark, trade secret or patent laws, and that it
has not received a claim or demand related to the
infringement, breach or misappropriation of any such
rights;
(b) that it is the owner or authorized distributor of its
products, that its owned products are original works
of authorship created by it, and that it has full
power and right to license its products and perform
all other terms applicable to it of this Agreement
without having to obtain the consent of any third
party which has not been obtained prior to granting
such license;
(c) that it will honor the terms and conditions of the
End User License Agreement including use of its
products as part of the Combined Product, and will
not make any warranties to End Users other than those
contained in the End User License Agreement without
obtaining the consent of the other party hereto;
(d) that the media on which it delivers its products will
remain free from defects in materials and workmanship
for a period of ninety days from the receipt by the
End User;
(e) that its products substantially conform to the User
Documentation and specifications for same; and
(f) that its products and any updates or other software
provided by it to the other party in development of
the Combined Product conform to the following Year
2000 definition:
The applications, systems, software and hardware,
including related supporting data and files, will
function correctly when dealing with dates/times, and
date/time related data in the following manner: (i)
said items will accurately process date/time data
(including calculating, comparing and sequencing)
from, into and between the 20th and 21st centuries,
and the years 1999 and 2000 and leap year
calculations; (ii) when used in combination with
information technology products from other vendors,
said items will accurately process time/date data
with the other vendor's information technology
products; and (iii) said items will neither contain
nor create any logical or mathematical inconsistency,
will not malfunction, and will not cease to function
when processing date/time data.
Each party shall promptly repair its products or any
other software it provides to the other party for use
in development of the Combined Product if
non-conformance to
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this Year 2000 compliance definition is discovered
during use or testing, regardless of which party
discovers such non-conformance.
8. Limitation of Warranties and Liability.
(a) Limitations of Warranties. EXCEPT FOR THE LIMITED
WARRANTIES STATED ABOVE, EACH PARTY ACCEPTS THE OTHER
PARTY'S PRODUCTS PROVIDED UNDER THIS AGREEMENT "AS
IS," WITH ALL FAULTS AND WITHOUT OTHER WARRANTIES OR
CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED
IN SECTION 8 OF THIS AGREEMENT, EACH PARTY'S
LIABILITY TO THE OTHER PARTY OR ANY OTHER THIRD PARTY
FOR A CLAIM OF ANY KIND ARISING AS A RESULT OF, OR
RELATED TO THE COMBINED PRODUCTS OR EITHER PARTY'S
PRODUCTS OR USER DOCUMENTATION PROVIDED PURSUANT TO
THIS AGREEMENT, WHETHER IN CONTRACT, IN TORT
(INCLUDING NEGLIGENCE OR STRICT LIABILITY), UNDER ANY
WARRANTY, OR OTHERWISE, SHALL BE LIMITED TO MONETARY
DAMAGES AND THE AGGREGATE AMOUNT THEREOF FOR ALL
CLAIMS RELATING TO ANY PARTICULAR PRODUCT SHALL IN NO
EVENT EXCEED AN AMOUNT EQUAL TO THE CUMULATIVE
PAYMENTS RECEIVED BY SUCH PARTY UNDER SECTION 5 OF
THIS AGREEMENT FOR THE PRODUCTS THAT GIVE RISE TO THE
CLAIM. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING
LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR WARRANTIES
GRANTED BY EITHER PARTY OR ANY THIRD PARTY IN EXCESS
OF THOSE CONTAINED IN THE OTHER PARTY'S STANDARD END
USER LICENSE AGREEMENT. NO ACTION, REGARDLESS OF
FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS
AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN
ONE (1) YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE
CAUSE OF ACTION OCCURRED.
9. Indemnification. Each party shall indemnify and hold harmless the
other party from all claims, losses, damages, costs and expenses
(including reasonable attorney's fees) that may arise from:
(a) breaches of its covenants, representations and
warranties contained herein, or misrepresentations
made by it or its Distributors (Xxxx and Xxxxx, we
need a definition for Distributor or we need to
delete this term as it is currently orphaned in this
agreement);
(b) any warranties granted by it or its Distributors in
excess of those contained in the other party's
standard End User License Agreement;
(c) inadequate installation, maintenance or support by it
or its Distributors;
(d) the marketing of the other party's products by it or
its Distributors; or
(e) any other act or omission by it or its Distributors
not in compliance with this Agreement provided that
the party seeking indemnification promptly gives
written notice of any claim to the other party;
provides any assistance reasonably requested by the
indemnifying party for the defense of the claim, and
the indemnifying party has complete control of the
defense of such claim.
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10. Confidentiality and Proprietary Rights.
(a) Confidentiality. Each party acknowledges that it has
or may, during the course of this Agreement received
information relating to the other party's assets,
operations, clients, and past, present, and future
businesses, including but not limited to
developments, technical data, specifications,
designs, ideas, product plans, research and
development, personal information, financial
information, customer lists, business methods and
operations, and marketing programs, all of which are
proprietary exclusively with such other party and
involve trade secrets, know-how, techniques, and
combinations of known information of a character
regarded by such party as confidential (collectively,
"Confidential Information"). Each party acknowledges
that all the other party's Confidential Information
is material and confidential and greatly affects the
goodwill and the effective and successful conduct of
such other party and its businesses and operations,
and that maintaining confidentiality of the
Confidential Information is reasonably necessary to
protect the legitimate business interests of such
other party. Accordingly, each party hereby agrees to
receive all such Confidential Information in strict
confidence and that neither it nor any of its
officers, directors, representatives, employees or
agents (including any consultants, subcontractors or
advisors) shall, at any time, directly or indirectly,
divulge, reveal or communicate to any third party the
existence or the terms of this Agreement or any
Confidential Information to any person, firm,
corporation or entity whatsoever, or use, pursue or
exploit any Confidential Information for its own
benefit or for the benefit of others. Each party
agrees that, upon demand of the other party, it and
its officers, directors, representatives, employees
or agents (including any consultants or advisors)
shall immediately return to such other party all
tangible material pertaining to Confidential
Information in its possession or control. Each party
shall disclose and enforce in writing the
confidentiality provisions of this Agreement with all
its officers, directors, representatives, employees
or agents (including any consultants, subcontractors
or advisors).
(b) Proprietary Rights. Title to the XXxxx.xxx Product
and all other products, trade secrets and other
proprietary information developed independently by
XXxxx.xxx, including without limitation all
copyrights thereto, shall remain with XXxxx.xxx at
all times. Title to the e-MEDx Product and all other
products, trade secrets and other proprietary
information developed independently by e-MEDx,
including without limitation all copyrights thereto,
shall remain with e-MEDx at all times. All software,
documentation or other products developed jointly by
and between XXxxx.xxx and e-MEDx, including
derivative works created jointly based on either the
XXxxx.xxx Product or the e-MEDx Product in the
development of the Combined Product shall be jointly
owned by XXxxx.xxx and e-MEDx and the parties shall
cooperate in and bear equally the expenses associated
with securing appropriate joint copyright
registrations and other forms of intellectual
property protection through engagement of mutually
acceptable counsel. Additionally, the parties agree
to cooperate and share equally the expenses of
conducting appropriate "right to use" or infringement
investigations prior to marketing the Combined
Product, and in the event of any claim based on the
Combined Product infringing a third party's
intellectual property rights based on the combination
of the XXxxx.xxx Product and the e-MEDx Product
rather than the XXxxx.xxx Product or the e-MEDx
Product not in combination, the parties shall
cooperate and share the expenses and any liability
imposed proportionately based on royalties received
by each party on sales of the Combined Product.
Each party agrees that all tangible objects
containing or relating to the other party's products
and all copies thereof are the sole and exclusive
property of such other party and upon termination of
this Agreement for any reason, each party will
forthwith return to the other party all of such other
party's products and User Documentation,
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magnetic media, instructions and all other related
materials in such party's possession furnished to it
hereunder and shall not retain any copies for its use
or for any purpose except as otherwise specifically
permitted by this Agreement, such as retention of a
minimal number of copies as reasonably necessary to
fulfill maintenance and support contractual
obligations with End Users. Neither party shall copy
any of the other party's products at any time for any
reason except as specifically permitted by this
Agreement. Neither party shall remove, cover, alter
or obfuscate any copyright notices or other
proprietary notices placed or embedded by the other
party on or in any of such other party's products.
Each party agrees not to decompile, disassemble, or
otherwise reverse engineer the software of the other
party's products. Each party agrees to take all
reasonable measures to protect the other party's
ownership rights and interest in all copyrights,
trade secrets, trademarks, service marks and other
property. Each party will promptly during the term of
this Agreement and thereafter, notify the other party
of any actual or suspected unauthorized use or
disclosure of such other party's products, User
Documentation, copyrights, trademarks, service marks
or trade secrets of which it has knowledge and will
cooperate fully in the investigation of such
unauthorized use or disclosure.
(c) Source Code Escrows. Both parties shall deposit the
source code and associated design documentation of
all components of such software for their respective
Product that is incorporated in the Combined Product
as it may be modified from time to time, and, in the
event that either party develops new software in
order to create the Combined Product, such party
agrees to deposit the source code and associated
design documentation of all components of such
software with a mutually acceptable escrow agent
(such source code and documentation hereinafter
referred to as the "Deposited Material"). The parties
shall enter into an escrow agreement which shall
contain instructions to release the Deposited
Materials, 1) pursuant to the terms of the Option
Agreement, and; 2) otherwise to the party that did
not develop them in the event that such party
notifies the escrow agent that (i) the developing
party has materially breached and fails or refuses to
perform under this Agreement; or (ii) any bankruptcy,
reorganization, debt arrangement, or proceeding under
any bankruptcy or insolvency laws or any dissolution
or liquidation proceeding commenced by or against the
developing party and as to such case or proceeding
not commenced by the developing party, not dismissed
within sixty (60) days.
(d) Remedies. In the event of a breach of any of the
provisions of this Section, the non-breaching party
will not have an adequate remedy in money or damages,
and accordingly shall, in addition to any other
available legal or equitable remedies, be entitled to
an injunction against such breach without any
requirements to post bond as a condition of such
relief.
11. Term and Termination
(a) Term. This Agreement shall be effective on the date
set forth above and shall be a three (3) year
Agreement unless terminated pursuant to the terms
contained below.
(b) Termination. EITHER PARTY MAY TERMINATE THIS
AGREEMENT WITHOUT CAUSE WITH NINETY (90) DAYS WRITTEN
NOTIFICATION. ADDITIONALLY, this Agreement may be
terminated in the event of a material breach. The
non-breaching party must provide NINETY (90) DAYS
written NOTIFICATION specifying such material breach,
if the breaching party fails to cure the breach
within a thirty (30) day period.
(c) Automatic Termination. Either party may terminate
this Agreement, effective immediately upon written
notice, if: (i) all or a substantial portion of the
assets of the other party are transferred to an
assignee for the benefit of creditors, to a receiver
or
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to a trustee in bankruptcy; (ii) a proceeding is
commenced by or against the other party for relief
under bankruptcy or similar laws and such proceeding
is not dismissed within sixty (60) days; or (iii) the
other party is adjudged bankrupt or insolvent. Upon
such a termination by either party, the party
terminating this Agreement shall be entitled to
obtain the release and receive any escrowed source
code, object code and documentation for the software
included in the Combined Product.
(d) Effect of Termination. All licenses and other rights
granted by each party to the other party hereunder
shall become null and void upon the termination of
this Agreement, except: (i) for the End User licenses
for XXxxx.xxx or e-MEDx Product previously
distributed by e-MEDx or XXxxx.xxx or their
Distributors, and (ii) for a limited license to
e-MEDx or XXxxx.xxx to use XXxxx.xxx or e-MEDx
Product, respectively, for the sole purpose of
fulfilling any contractual obligations for
maintenance and support services to End Users.
(e) Post-Termination Phase-Out. Each party's right to use
the others product as part of the Combined Product as
of the effective date of the termination, shall cease
one hundred twenty (120) days after the effective
date of termination.
12. General Provisions.
(a) No Agency. The parties hereto shall at all times be
independent contractors and shall so represent
themselves to all third parties. The parties hereto
acknowledge and agree that this Agreement is intended
to create and further a cooperative business alliance
relationship, but neither party has granted to the
other the right to bind it in any manner or thing
whatsoever and nothing herein shall be deemed to
constitute either party the agent or legal
representative of the other nor to legally constitute
the parties as partners, agents or joint ventures of
one another. Any purchase order or other document
issued by either party which includes the other
party's products shall be deemed to be issued only
for administrative convenience and no term or
condition thereof shall be binding on either party
hereto.
(b) Assignment; Binding Nature. Neither party may assign
this Agreement or any of its respective obligations
hereunder to any third party or entity, and this
Agreement may not be involuntarily assigned or
assigned by operation of law without the prior
written consent of the other party, which consent
shall not be unreasonably withheld. Any attempted
assignment in contravention of this Agreement shall
be null and void as to the alleged assignor and
assignee. The provisions hereof shall be binding upon
and inure to the benefit of the parties, their
successors and permitted assigns.
(c) Insurance. Each party shall maintain insurance and
shall include, without limitation, comprehensive
general liability, including contract liability, and
products liability coverage, and statutory workers'
compensation insurance each of limits of at least one
million dollars ($1,000,000) and errors and
omissions, including intellectual property
infringement liability, with limits of at least five
million dollars ($5,000,000).
(d) Survival. Sections 4(c)(iv) (Notification and Record
Requirements), 4(c)(v) (Compliance with Law), 5
(Payment, Order and Shipment), 6 (Representations and
Warranties), 7 (Limitation of Warranties and
Liability), 8 (Indemnification), 9 (Confidentiality
and Proprietary Rights), 10(d) (Effect of
Termination), 10(e) (PostTermination Phase-Out), and
11 (General Provisions) shall survive termination of
this Agreement.
(e) Headings. The section and subsection headings
contained in this Agreement are for purposes of
convenience and reference only, and shall not affect
in any way the meaning or interpretation of this
Agreement.
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(f) Governing Law: Prevailing Party Recovery. This
Agreement shall be governed by the laws of the STATE
OF DELAWARE, and any action taken by any party
resulting from a dispute regarding the terms of this
Agreement shall be heard exclusively in the local
Federal or State courts in the venue of the STATE OF
DELAWARE and the parties hereto consent to personal
jurisdiction in such forum. If either party hereto is
required to engage in litigation against the other
party hereto, either as plaintiff or as defendant, in
order to enforce or defend its rights under this
Agreement, and such litigation results in a final
judgment in favor of such party (the "Prevailing
Party"), then the party against whom said final
judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect and incidental
expenses incurred, including, but not limited to, all
attorney's fees, court costs and other expenses
incurred throughout all negotiations, trials or
appeals undertaken in order to enforce the Prevailing
Party's rights hereunder.
(g) Notices. All notices permitted or required under this
Agreement shall be effective only if in writing, and
shall be deemed to have been given (and received)
when personally delivered, or on the next business
day after the date on which deposited with a
regulated public carrier (e.g., Federal Express),
with a return receipt requested or equivalent thereof
administered by such regulated public carrier, or
when sent via facsimile with confirmation of delivery
to the facsimile numbers set forth below for the
respective receipt, addressed to the President of the
party for whom intended at the address set forth
above:
If to e-MEDx: E-MEDx, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Tel. No.: 000.000.0000
Fax No.: 000.000.0000
Attn: Xxxx Xxxxx
If to XXxxx.xxx: XXxxx.xxx, Inc.
0000 Xxxxx Xxxxxxxx
Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Tel. No.: 000.000.0000
Fax No.: 000.000.0000
Attn: Xxxxxx Xxxxxxx
(h) Entire Agreement. This Agreement supersedes any prior
agreements or understandings between the parties,
whether express or implied or written or oral,
including specifically that certain Letter of
Understanding between the parties hereto dated
December 23, 1999, and constitutes the entire
understanding of the parties as to the matters set
forth herein. Neither party shall be bound by any
representations, warranties, promises, statements or
information as to the matters which are the subject
of this Agreement, unless such are specifically set
forth herein.
(i) Amendment; Waiver. No attempted amendment,
modification, termination, discharge or
(collectively, "Amendment") of this Agreement shall
be effective unless it is in writing and signed by
both parties hereto. No waiver of any provision of
this Agreement shall be effective unless it is in
writing and signed by the party against whom it is
asserted, and any such written waiver shall only be
applicable to the specific instance to which it
relates and shall not be deemed to be a continuing or
future waiver.
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(j) Force Majeure. Neither party shall be responsible for
any failure to perform due to unforeseen
circumstances or for causes beyond its control which
prevents such party from performing under this
Agreement, provided that such party provides notice
to the other party describing the circumstances
alleged to constitute force majeure. Such party shall
be permitted to delay its performance only for as
long as the circumstances constituting force majeure
are present.
(k) Severability. This Agreement is intended to be
performed in accordance with and only to the extent
permitted by all applicable laws, ordinances, rules
and regulations of the jurisdictions in which the
parties do business. If any provision of this
Agreement, or the application thereof to any person
or circumstances shall, for any reason or to any
extent, be invalid or unenforceable, the remainder of
this Agreement and the application of such provision
to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
(l) Counterparts. This Agreement and any amendments may
be executed in one or more counterparts, each of
which shall be deemed an original, but all of which
together shall constitute one and the same
instrument.
(m) Further Assurances. The parties hereto agree to
execute and deliver such further instruments and do
such further acts and things as may be reasonably
necessary or required to carry out the intent and
purposes of this Agreement.
13. PUBLICITY: THE PARTIES SHALL WORK TOGETHER AS MUTUALLY AGREED UPON
TO ISSUE A PUBLICITY AND GENERAL MARKETING COMMUNICATION CONCERNING THE
EXECUTION OF THIS AGREEMENT. NEITHER PARTY SHALL ISSUE SUCH PUBLICITY
AND GENERAL MARKETING COMMUNICATION WITHOUT THE PRIOR WRITTEN CONSENT
OF THE OTHER PARTY (NOT TO BE UNREASONABLY WITHHELD). NEITHER PARTY
SHALL DISCLOSE THE TERMS OF THIS AGREEMENT TO ANY THIRD-PARTY OTHER
THAN TO COUNSEL, AUDITORS AND FINANCIAL ADVISORS EXCEPT AS REQUIRED BY
LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date set forth above.
E-MEDX:
e-MED, Inc.
By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Executive VP Sales & Mktg.
XXXXX.XXX:
XXxxx.xxx, Inc.
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Sr. VP of Sales & Bus. Div.
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ATTACHMENT A - e-MEDx PRODUCTS
The following e-MEDx products are incorporated as a part of this agreement.
1. MEDADVICE(R) 2001 UTILIZATION/CARE MANAGEMENT/DISEASE MANAGEMENT
SOFTWARE
2. e-PHA PREDICTIVE HEALTH ASSESSMENT TOOLS
3. e-IDM INTEGRATED CHRONIC DISEASE MANAGEMENT PROGRAMS
possible additions:
1. e-CONSULT PRE-CONSULTATION VISIT FORMS
2. e-PSS PATIENT SATISFACTION SURVEYS
It is intended that certain products be private-labeled and sold by XXxxx.xxx as
their own product. For other products the intent is to work in a co-marketing
manner. The responsibilities of each party and financial arrangements for both
types of relationships are described in Attachment F.
PRODUCT DESCRIPTIONS:
MEDADVICE(R) 2001
e-MEDx empowers the desktop of the Utilization Management and Case Management
department(s) with a fully-functioning application suite -- MEDADVICE(R) 2001.
This product supports Utilization and Case Management functions. Major system
components include:
o Referral Management
o Pre-certification and Treatment Authorization
Management
o Case Management
o UM Decision-support
o Web-based Authorization Management
o Web-based Inquiries for Providers
e-PHA
e-PHA is a web-based healthcare application that enables care management
organizations and/or employers to assess the health risk of their
members/employees and to take appropriate corrective action.
Through the use of e-PHA patients provide information about themselves that
allows the likelihood that they will need care during the next 12 months to be
predicted with great accuracy. By analyzing and providing health improvement
recommendations and techniques to each respondent, e-PHA helps improve the
wellness of the population. In addition, the product identifies the fraction of
the population with the greatest likelihood of needing care, and provides an
effective way for a care management organization or a Call Center to
pro-actively address those higher-risk individuals.
e-IDM
e-IDM is a web-based healthcare application that enables provider organizations
to efficiently and effectively plan and implement the care of patients with
chronic diseases.
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Through the use of e-IDM, a provider can quickly identify the most appropriate
care guidelines for a patient with a chronic disease. The provider can then use
e-IDM to create a plan for the patient based on those guidelines. The plan
contains alerts which will notify the provider both when clinical data suggests
that a change to the plan might be required and when the time has come for some
further action -- eg, an office visit, a phone call to the patient, a test.
e-IDM allows providers to use explicit care plans to manage the care of their
patients -- but in a way that not only does not increase the amount of time that
needs to be spent attending to the patient, but actually decrease the time.
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ATTACHMENT B -- XXXXX.XXX PRODUCTS
The following Xxxxx.xxx products are incorporated as a part of this agreement.
1. eXtensible CARE CLAIMS PROCESSING/MANAGED CARE SYSTEM
2. XXXXXXXXXXXXXX.XXX CREDENTIALING SOFTWARE
3. INFOMINERS DECISION SUPPORT & AD HOC REPORTING
possible additions:
4. MULTI-PAYER ELIGIBILITY ON-LINE ELIGIBILITY VERIFICATION
5. MULTI-PAYER REFERRAL ON-LINE REFERRAL SUBMISSION
6. MULTI-PAYER CLAIMS CLAIMS SCRUBBING, ROUTING, STORING AND
CLEARINGHOUSE.
It is intended that certain products be private-labeled OR CO-BRANDED and sold
by e-MEDx as their own product. For other products the intent is to work in a
co-marketing manner. The responsibilities of each party and financial
arrangements for both types of relationships are described in Attachment F.
PRODUCT DESCRIPTIONS:
eXtensible CARE
The eXtensible CARE MCIS provides a powerful back-office application for the
processing of managed care transactions by health plan payers and at-risk
provider organizations. The eXtensible CARE system fully supports each of the
transaction extensions of the XXxxx.xxx eHealth products and services.
Additionally, the eXtensible CARE system provides market space differentiation
relative to competition through the inclusion of a managed care information
system into the overall business model, allowing Xxxxx.xxx customers to
immediately support transactions on the Internet.
In a single, integrated system, eXtensible CARE's enrollment, claims and
capitation modules handle the full spectrum of managed care products, contracts
and services. Major functionality includes subscriber/member enrollment, group
contracting, billing, broker commissions, provider contracting, utilization
management, claims, capitation and fund accounting, Medicaid and Medicare,
reporting, letter generation and communications tracking. Core modules have been
designed for seamless integration with a suite of best-of-breed partner
applications to provide additional key functions in the areas of case
management, imaging and workflow, physician credentialing and decision support.
XXXXXXXXXXXXXX.XXX
XXXXXXXXXXXXXX.XXX'S online physician credentialing solution is dedicated to
delivering a full suite of credentialing applications to help providers reduce
the hassle and expense of participation in payer networks and provider panels.
Additionally, the online credentialing solution uses the accessibility and
convenience of the Internet to deliver proven tools that help health care
professionals and their administrative staff save time and money, increase
administrative efficiency, fuel practice growth and enhance professional health
care office operations.
The use of the Internet to deliver the solution benefits customers as they are
never burdened by old, obsolete software. XXXXXXXXXXXXXX.XXX'S approach of
offering an online credentialing solution delivers a positive ROI and increases
productivity, efficiency and growth within health care practices.
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Features and Benefits:
SNAPPNET --
SNAPPNET outputs custom forms and applications with the single push of a button.
All customers do is create a one-time, in-depth profile that covers the spectrum
of professional and practice data typically asked on credentialing applications
and other related forms. The completed profile is stored in XXXXXXXXXXXXXX.XXX's
secure database, which can be accessed and reviewed or updated at any time. When
a new application or form is needed, the customer can choose the appropriate
selection from an extensive library and SNAPPNET automatically inserts the
appropriate information into the requested document.
Check the advantages SNAPPNET delivers:
o Allows customers to enter data once and use it unlimited times.
o Automatically fills out and prints applications and forms.
o Eliminates time-consuming processing of lengthy forms.
o Custom pre-entered practice data to suit virtually any credentialing
document.
o Easy access to data for updates and modifications.
o Security through password-protected entry.
CREDENTIALSAGENT --
CREDENTIALSAGENT puts customers in control of the credentialing process and
takes away the hassle of completing and managing thousands of pieces of paper.
CREDENTIALSAGENT combines a repository for the health care professional's
credentialing documents (e.g., licenses, malpractice certificates,
educational/CME information, etc.) with a provider-centric credentialing
verification service. It also gives customers an agent who can be the
coordinator and representative to health plan and hospital administrative staff,
alleviating the time consuming process of responding to multiple requests for
credentials.
All customers do is create a profile online and then send XXXXXXXXXXXXXX.XXX the
usual credentialing source documents, that are verified in compliance with the
national accreditation organizations. Customers have online access to the file
at all times, so it's easy to stay updated on the verification process and to
update the file just once when changes need to be made.
Once primary source verification is complete, all data is stored in
XXXXXXXXXXXXXX.XXX's secure database and refreshed on a real-time basis. We
interact with payers on the customers behalf, so they never again have to
provide information in hardcopy form when they apply for HMO/PPO network
participation or to join a hospital staff. Plus, they will be eligible to
receive new patient referrals and additional revenue more quickly, as
CREDENTIALSAGENT reduces the time it takes payers to complete the credentialing
process from several months to a couple of weeks.
With CREDENTIALSAGENT, customers can:
o Control the credentialing process for network participation and
hospital privileges.
o Have online access to files any time to see credentialing status, as
well as view and change the list of organizations authorized to view
their information.
o Provide authorization to whichever organizations they choose,
allowing them to view the information at their convenience.
o Make a change to the file and have it immediately update all
affiliated plans and hospitals.
CONFIDENTIAL 14 of 14
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o Enjoy the convenience of a single storage and update site for all
credentialing documents, secured by password protected entry.
o Feel confident knowing that credentials receive in-depth
verification conducted in accordance with standards set by NCQA,
JCAHO and URAC.
Cut the time between application and new patient referrals from several months
to a couple of weeks (and sometimes even days), thereby increasing practice
revenue.
INFOMINERS
INFOMINERS is a data warehouse solution developed by experts with years of
experience in the managed care industry. The software is written in the language
and context of managed care resulting in data that is organized and presented in
a way that addresses the industry's key challenges. INFOMINERS consolidates
enterprise-wide information into one warehouse environment. As a result, users
can access the same information to support the specific decisions of their
functional area.
Additionally, with INFOMINERS, clients are free from the burden of analyzing
operational systems, evaluating and selecting individual database and
navigational tools, designing the database, and writing the numerous programs
necessary to administer the database. Instead, INFOMINERS provides a
ready-to-install package that is fully compatible with existing information
systems and can be customized to support individual content and report
requirements. The "best of breed" navigational tools incorporated into the
solution are easy to use and totally intuitive. Information is retrieved, viewed
and shared with the click of a mouse. In this user-friendly environment, even
PC- novices can quickly become productive with little or no support from IT.
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ATTACHMENT C -- XXXXX.XXX TRAINING & CONSULTATION PLAN
XXxxx.xxx is obligated and has incentive to provide adequate training to the
e-MEDx sales team. The training program will be designed to enable the e-MEDx
sales team to be productive as quickly as possible after the start of this
Agreement.
At a minimum, this program will include (for each product):
1. A PowerPoint Slide Presentation
2. Product Highlight Sheets
3. Pricing and Packaging
4. Availability to a Demonstration of the product
5. Appropriate amount of discussion and training by a qualified
instructor
XXxxx.xxx will participate in a two-day e-MEDx Sales Meeting that will be
devoted to sales training and will be scheduled within the first two months of
this agreement. Participation in future sales meetings will be scheduled on an
as needed basis.
NOTE: All expenses for travel and expenses will be the responsibilities of the
parties incurring the expenses (there will be no billing of expenses to the
other parties).
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ATTACHMENT D -- E-MEDX TRAINING & CONSULTATION PLAN
e-MEDx is obligated and has incentive to provide adequate training to the
XXxxx.xxx sales team. The training program will be designed to enable the
XXxxx.xxx sales team to be productive as quickly as possible after the start of
this Agreement.
At a minimum, this program will include (for each product):
6. A PowerPoint Slide Presentation
7. Product Highlight Sheets
8. Pricing and Packaging
9. Availability to a Demonstration of the product
10. Appropriate amount of discussion and training by a qualified
instructor
e-MEDx will participate in a two-day XXxxx.xxx Sales Meeting that will be
devoted to sales training and will be scheduled within the first two months of
this agreement. Participation in future sales meetings will be scheduled on an
as needed basis.
NOTE: All expenses for travel and expenses will be the responsibilities of the
parties incurring the expenses (there will be no billing of expenses to the
other parties).
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ATTACHMENT E -- COMBINED PRODUCT PROJECT DESCRIPTION
Initially, the combined product will be the combination of XXxxx.xxx's
eXtensible CARE (claims management) product with e-MEDx's MedAdvice(R) 2001
(utilization & case management) product. The coupling of these products is
contemplated as follows:
XXXXX 0
o Provider File Interface (x.12)
o Member Eligibility Interface (x.12)
o Authorization Interface (x.12)
PHASE 2
o Benefits Interface
o Auto Authorization Process (web-based auths)
PHASE 3
o Infominers Decision Support and Reporting Tool Integration
FUTURE
o XxxxxxXxxxxxxx.xxx Integration
CONFIDENTIAL 18 of 18
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ATTACHMENT F -- FINANCIAL ARRANGEMENT
-------------------------------------
CO-MARKETING ARRANGEMENT
DEFINITION: The organization that owns the software sells, installs,
and supports their product. The co-marketing partner invites the
product author/owner into a prospective opportunity to sell their
product. All costs associated with the sale are the responsibility of
the product author/owner.
PRODUCTS: The following products are being categorized as co-marketed
products:
XXXXX.XXX PRODUCTS:
eXtensible CARE
E-MEDX PRODUCTS:
MedAdvice(R) 2001
FEES: Co-marketing fees for this relationship are set at * for both
all co-marketed products. The author pays the co-marketer * of the
(projected) first-year revenue in recognition of the introduction/lead.
This payment is due upon receipt of * of the first year (projected)
revenues.
PRODUCT RESELLING ARRANGEMENT
DEFINITION: The selling organization to take full sales, installation,
support and training responsibilities for all products, regardless of
the organization that owns/authors the products.
PRODUCTS: The following products are being categorized as co-marketed
products:
COMBINED PRODUCT: XXXXX.XXX WILL HOST THE SERVER AND PROVIDE ALL
EQUIPMENT REQUIRED TO SUPPORT THE COMBINED PRODUCT. ADDITIONALLY,
XXXXX.XXX WILL PROVIDE THE FIRST LEVEL OF SUPPORT, INSTRUCTION,
AND OTHER SUPPORT TO NEW COMBINED PRODUCT END USERS REGARDING THE
USE OF THE COMBINED PRODUCT IN ACCORDANCE WITH THE PLAN SET FORTH
IN ATTACHMENTS C AND D ATTACHED HERETO.
XXXXX.XXX PRODUCTS:
XxxxxxXxxxxxxx.xxx Credentialing for Physicians (REVENUE
SHARING BASED ON PROFIT MARGIN)
Infominers Decision Support Tools (REVENUE SHARING
BASED ON PROFIT MARGIN)
E-MEDX PRODUCTS:
e-PHA Predictive Health Assessment Tool
e-IDM Integrated CHRONIC Disease Management
Programs
FEES: Revenue splits will be as follows:
PRODUCT SALES ORG. NON-SALES ORG. SERVER HOST
------- ---------- -------------- -----------
ExpertPractice(1) * * *
Infominers(1) * * *
e-PHA(2) * * *
e-IDM * * *
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
CONFIDENTIAL 19 of 19
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1. Must be hosted by XXxxx.xxx
2. Must be hosted by e-MEDx
(When Server Hosting does not exist, the Sales Organization split is
increased by * )
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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COMPETITIVE SITUATIONS
It is expected that from time to time, e-MEDx and XXxxx.xxx will encounter
situations in which they are, or could, compete for the same client's business.
In these situations, the companies will adhere to the policy that the first
organization into an account will be the organization that works to win the
business -- the other organization will professionally exit the opportunity, and
promote the remaining party to the client. When extenuating circumstances (like
a special connection or other reason) may improve the chances of one
organization to win an opportunity over the other, or when there is
confusion/disagreement about who was in first, these situations will be
escalated to the designated senior executives within each company, and a
decision will be made at that level.
Those currently designated for this role are:
For e-MEDx: Xxxxx X. Xxxxx
EVP, Sales & Marketing
For XXxxx.xxx: Xxx Xxxxxx
SVP, Sales & Business Development
PRICING
Retail pricing for products identified within this agreement is the
responsibility of the owner/author of the software. Prices will be market-driven
and published on a quarterly basis for the Reseller. Special pricing
considerations that have not be contemplated in the published pricing (i.e.
large volume deals) will be determined on a case-by-case basis by the designated
senior executives within each company.
Those currently designated for this role are:
For e-MEDx: Xxxxx X. Xxxxx
EVP, Sales & Marketing
For XXxxx.xxx: Xxx Xxxxxx
SVP, Sales & Business Development
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ATTACHMENT F -- FINANCIAL ARRANGEMENT
CO-MARKETING ARRANGEMENT
DEFINITION: The organization that owns the software sells, installs,
and supports their product. The co-marketing partner invites the
product author/owner into a prospective opportunity to sell their
product. All costs associated with the sale are the responsibility of
the product author/owner.
PRODUCTS: The following products are being categorized as co-marketed
products:
XXXXX.XXX PRODUCTS:
eXtensible CARE
E-MEDX PRODUCTS:
MedAdvice(R) 2001
FEES: Co-marketing fees for this relationship are set at 10% for both
all co-marketed products. The author pays the co-marketer 10% of the
(projected) first-year license or transaction fees in recognition of
the introduction/lead. This payment is due upon receipt of 50% of the
first twelve months (projected) cash.
At the conclusion of the twelve month period, an adjustment will be
calculated by the product owner/author based on actual license fees
generated by the client relationship. Once the actual fee is accounted
for in a mutually agreed upon manner, a check or invoice will be sent
to the comarketing partner within sixty days after the end of the
twelve month period.
PRODUCT RESELLING ARRANGEMENT
DEFINITION: The selling organization to take full sales, installation,
support and training responsibilities for all products, regardless of
the organization that owns/authors the products.
PRODUCTS: The following products are being categorized as co-marketed
products:
COMBINED PRODUCT: XXxxx.xxx will host the server and provide
all equipment required to support the Combined Product.
Additionally, XXxxx.xxx will provide the first level of
support, instruction, and other support to new Combined
Product End Users regarding the use of the Combined Product in
accordance with the plan set forth in Attachments C and D
attached hereto.
XXXXX.XXX PRODUCTS:
XxxxxxXxxxxxxx.xxx Credentialing for Physicians
Infominers Decision Support Tools
E-MEDX PRODUCTS:
e-PHA Predictive Health Assessment Tool
e-IDM Integrated Chronic Disease
Management Programs
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FEES: Revenue splits will be based on the "net license fees" (net of
any licensing costs to third parties) of the product over the term of
the agreement. Installation fees, maintenance fees, or other
resource-based fees are excluded from this agreement. Splits are
calculated as follows:
PRODUCT SALES ORG. NON-SALES ORG. SERVER HOST
------- ---------- -------------- -----------
XxxxxxXxxxxxxx.xxx(1) * * *
Infominers(1) * * *
e-PHA(2) * * *
e-IDM(2) * * *
1. Must be hosted by XXxxx.xxx, and will be sold by e-MEDx
2. Must be hosted by e-MEDx, and will be sold by Xxxxx.xxx
(When Server Hosting does not exist, the Sales Organization split is
increased by * )
COMPETITIVE SITUATIONS
It is expected that from time to time, e-MEDx and XXxxx.xxx will encounter
situations in which they are, or could, compete for the same client's business.
In these situations, the companies will adhere to the policy that the first
organization into an account will be the organization that works to win the
business--the other organization will professionally exit the opportunity, and
promote the remaining party to the client. When extenuating circumstances (like
a special connection or other reason) may improve the chances of one
organization to win an opportunity over the other, or when there is
confusion/disagreement about who was in first, these situations will be
escalated to the designated senior executives within each company, and a
decision will be made at that level.
Those currently designated for this role are:
For e-MEDx: Xxxxx X. Xxxxx
EVP, Sales & Marketing
For XXxxx.xxx: Xxx Xxxxxx
SVP, Sales & Business Development
Retail pricing for products identified within this agreement is the
responsibility of the owner/author of the software. Prices will be market-driven
and published on a quarterly basis for the Reseller. Special pricing
considerations that have not be contemplated in the published pricing (i.e.
large volume deals) will be determined on a case-by-case basis by the designated
senior executives within each company.
Those currently designated for this role are:
For e-MEDx: Xxxxx X. Xxxxx
EVP, Sales & Marketing
For XXxxx.xxx: Xxx Xxxxxx
SVP, Sales & Business Development
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
CONFIDENTIAL 20 of 20
