CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.44
ADDENDUM TO STRATEGIC DISTRIBUTION ALLIANCE AGREEMENT
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THIS ADDENDUM TO STRATEGIC DISTRIBUTION ALLIANCE AGREEMENT (this
"Addendum"), entered into as of the 3rd day of November, 1998, effective as of
the 27th of October, 1998, is made by and between WebMD, INC., a Georgia
corporation ("WebMD"), and HBO & COMPANY OF GEORGIA, a Delaware corporation
("HBOC").
W I T N E S S E T H:
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WHEREAS, WebMD and HBOC are parties to that certain Strategic
Distribution Alliance Agreement dated as of October 23, 1998 (the "Agreement");
WHEREAS, under the Agreement, HBOC will market the WebMD Services (as
defined in the Agreement) to HBOC Customers (as defined in the Agreement);
WHEREAS, the parties have agreed upon certain additional terms with
regard to a certain marketing program to be undertaken by HBOC under the
Agreement; and
WHEREAS, WebMD and HBOC desire to enter into this Addendum to provide
for such additional terms.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, WebMD and HBOC hereby
agree as follows:
1. Applicability of Agreement. To the extent consistent with the
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terms of this Addendum, all terms of the Agreement are applicable to the
transaction contemplated by this Addendum.
2. Defined Terms. All capitalized terms used herein and not defined
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herein shall have the meaning set forth in the Agreement. As used herein, the
following term shall have the meaning associated therewith:
"WebMD Subscription" means the entry by a Subscriber into a
Subscription Agreement with WebMD for use of the WebMD Services as a
direct result of the marketing efforts of HBOC, provided that the term
of such agreement shall be no less than three (3) years, subject to
applicable provisions of WebMD's Terms and Conditions of Use and
Service Agreement.
3. Marketing Program. Subject to the terms set forth herein, in the
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event that (a) parties affiliated with a particular healthcare organization,
integrated delivery system or physician practice ("Entity") enter into *** (***)
or more WebMD Subscriptions as set forth in the Agreement, and (b)
simultaneously in connection therewith, HBOC enters into a license
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
agreement ("License Agreement") with such Entity for use of HBOC's Connect 2000
software product ("Connect 2000"), then WebMD will pay to HBOC up to *** ($***)
of the Initial License Fee (as defined below) applicable to an individual seat
license under the License Agreement. Notwithstanding the foregoing, WebMD will
only make such payment for the lesser of the number of (i) Connect 2000
users/seat licenses or (ii) WebMD Subscriptions entered into by an Entity in
connection with this marketing program.
4. Initial License Fee. As used above, "Initial License Fee" means the
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initial software license fee charged by HBOC under an applicable License
Agreement to an Entity solely for use of Connect 2000 divided by the total
number of users/seat licenses under the applicable License Agreement. HBOC
agrees that the Initial License Fee to be charged to Entities in connection with
this marketing program shall be determined in a manner that is consistent with
the price terms allocable to a single seat license for Connect 2000 offered by
HBOC to any third party.
5. Calculation by HBOC of Initial License Fee. The parties acknowledge
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and agree that in providing Connect 2000 to HBOC Customers, HBOC typically
charges a single amount for hardware, an initial software license fee,
implementation and other products and services. Thus, in order to determine the
Initial License Fee, HBOC will be required to identify that portion of the
above-referenced total charges to an Entity which is allocable only to the
initial license of Connect 2000 as calculated above. HBOC agrees to make such
calculation in good faith and in accordance with its customary, historical
pricing of Connect 2000.
6. Payment. After calculation of the Initial License Fee with regard to
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any Entity as set forth above, HBOC will provide to WebMD an invoice therefor.
WebMD will make payment on such invoice within thirty (30) days after receipt
thereof.
7. No Further Obligations. After payment of the Initial License Fee to
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HBOC as set forth above, WebMD will have no further obligations with regard to
the applicable License Agreement. The parties acknowledge and agree that the
License Agreement is solely between HBOC and the applicable Entity. Therefore,
HBOC shall bear all obligations to the Entity with regard thereto, including,
but not limited to, technical and customer support, software warranties and
intellectual property infringement indemnification. In addition, any additional
fees to be paid to HBOC under the License Agreement beyond the Initial License
Fee (and any other obligations of the Entity under the License Agreement) shall
be the sole responsibility of the Entity.
8. Termination; Continuation. The foregoing marketing program shall
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terminate upon the entry by WebMD into *** (***) WebMD Subscriptions generated
hereunder. Thereafter, if the parties desire to continue this marketing
program, the parties will negotiate in good faith the terms of any such
continuation.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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IN WITNESS WHEREOF, WebMD and HBOC have executed this Addendum effective as
of the day and year first above written.
WebMD, INC.
By: /s/ W. Xxxxxxx Xxxxxx
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Name: W. Xxxxxxx Xxxxxx
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Title: Chief Operating Officer
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HBO & COMPANY OF GEORGIA
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Sr. VP - Corporate Planning/Business
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Development
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