AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT
EXHIBIT 10.1
[CONFORMED COPY]
AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT
AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT (this “Agreement”), dated as of
August 7, 2006 between EMDEON PRACTICE SERVICES, INC., a Delaware corporation (“Practice
Services”) and WEBMD HEALTH CORP., a Delaware corporation (“WebMD”).
WHEREAS, WebMD, Practice Services, Envoy Corporation, a Delaware corporation
(“Envoy”), and Emdeon Corporation, a Delaware corporation (“Emdeon” and,
collectively with Envoy, WebMD and Practice Services, the “Original Parties”), previously
entered into that certain Business Services Agreement (the “Original Business Services
Agreement”), dated as of January 31, 2006 (the “Effective Date”);
WHEREAS, the Original Parties and VIPS, Inc., a Maryland corporation (“VIPS”) desire
to (i) permit the withdrawal of Emdeon from the Original Agreement and (ii) amend and restate the
Original Agreement into three separate agreements of even date herewith among WebMD and each of
Practice Services, Envoy and VIPS as set forth herein (in the case of Practice Services) and as set
forth in such other agreements (in the case of Envoy and VIPS);
NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants
hereinafter set forth, and intending to be legally bound, Practice Services and WebMD agree to
amend and restate the Original Agreement as between WebMD and Practice Services to read as follows:
SECTION 1. Clinical Quality Applications
(a) External Clinical Quality Applications. Practice Services may develop and/or
acquire during the term of this Agreement, online products and services that are principally
provided for use as physician/provider-facing applications or consumer (patient/member) facing
applications (i.e., those that are directed online to physicians or to individual
consumers/patients/members) that provide clinical quality measures of physicians, hospitals and
other providers, and which include the benefit of the clinical rules supporting these applications.
Those products and services as described in the preceding sentence are hereinafter referred to as
“External Clinical Quality Applications”.
(b) Products Utilizing External Clinical Quality Applications. Practice Services will
be permitted to market the External Clinical Quality Applications, provided however, Practice
Services will not offer the External Clinical Quality Applications as stand-alone products, but
rather may offer and distribute the External Clinical Quality Applications to its current and
potential customers in connection with the integration of the External Clinical Quality
Applications with Practice Services core products and services. Practice Services will use
commercially reasonable efforts to avoid channel conflicts in distributing its products as provided
in the foregoing sentence. During the term of this Agreement, Practice Services will not license
or provide External Clinical Quality Applications other than through WebMD as provided herein. The
pricing pursuant to which WebMD will make the External Clinical Quality Products available to a
Practice Services customer as provided in this Section 1(b) will be competitive with the pricing it
provides to other similar customers purchasing substantially the
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same products at the same volume/commitment levels. The parties acknowledge that based on
client preferences, the External Clinical Quality Applications may be accessible through channels
in addition to WebMD properties (i.e., client websites, etc).
(c) Right of First Refusal. To the extent that Practice Services identifies in its
business a need for an External Clinical Quality Application in order to support a business
requirement related to the marketing of its core services, Practice Services will first present
WebMD with the opportunity to meet Practice Services’ requirement for the External Clinical Quality
Application with written notice of the terms and specifications and requirements for the External
Clinical Quality Application. WebMD will notify Practice Services within thirty (30) days of
receipt of Practice Services’ written notice as to whether or not it elects to provide the External
Clinical Quality Application. If WebMD elects to provide the External Clinical Quality
Application, WebMD will provide the specifications and parameters for the applicable External
Clinical Quality Application together with a reasonable schedule for delivery of the External
Clinical Quality Application, on a basis consistent with Practice Services’ business requirements,
and Practice Services agrees that WebMD shall be the provider of such External Clinical Quality
Application. If WebMD elects not to provide the External Clinical Quality Application, or after
electing to do so and providing a reasonable delivery schedule, fails to substantially comply with
such schedule (after written notice and a thirty (30) day opportunity to cure such failure),
Practice Services may pursue that opportunity through a third party or on its own, on substantially
the same terms as discussed with WebMD. Practice Services will keep WebMD apprised of its
marketing efforts related to External Clinical Quality Applications.
(d) Electronic Health Record Applications. The parties acknowledge that Practice
Services’ electronic health record applications (such as those currently offered through Intergy
EHR, Intergy Imaging, Intergy PDA), and other similar applications provided by Practice Services,
as well as Practice Services’ products which provide for sending and receiving of prescriptions and
lab results, and reasonable extensions of such products hereafter that are consistent with its past
practice for such products, are not considered “External Clinical Quality Services” and are not
subject to the provisions of this Section 1.
(e) Internal Clinical Quality Services. Practice Services develops, markets, sells
and provides, and may in the future develop, market, sell and provide, products and services that
are principally provided for use as payer facing-applications that provide to payers “clinical”
quality measures of physicians, hospitals and providers, other than through consumer and/or
physician/provider facing applications (collectively, “Internal Clinical Quality
Services”). WebMD will be permitted to develop, market, sell and provide Internal Clinical
Quality Services, and WebMD and Practice Services may meet on a regular basis to discuss potential
coordination of marketing efforts for Internal Clinical Quality Services to particular clients or
potential clients. Practice Services may make available to WebMD, Practice Services Internal
Clinical Quality Services for integration with WebMD products and services. The pricing pursuant
to which Practice Services will make the Practice Services Internal Clinical Quality Services
available to a WebMD customer as provided in this Section 1(e) will be competitive with the pricing
it provides to other similar customers purchasing substantially the same products at the same
volume/commitment levels. Notwithstanding the foregoing, WebMD will be permitted to develop, sell
and provide its own services in this area or license and work with third parties for such services.
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SECTION 2. Consumer Directed Applications
(a) Licensing and Provision through WebMD. Practice Services agrees that
applications, tools, products and/or services that are directed through an online means to
individual consumers, patients, or health plan members, as end users, including those providing a
patient or member view of the potential cost of care or financial responsibility for individual
medical and/or drug claims (collectively, “Consumer Directed Applications”) will be
licensed and/or provided by WebMD, other than Permitted Applications as described in Section 2(e)
below, and Practice Services agrees that so long as this Agreement is in effect Practice Services
will not license or provide Consumer Directed Applications except through WebMD.
(b) Identified Consumer Directed Application. Practice Services agrees that any
Consumer Directed Application that provides a patient or plan member view as to the portion of the
cost of care for which the patient or plan member is responsible, will be provided and delivered by
WebMD, rather than Practice Services, and during the term of the Agreement Practice Services will
not make any such product available itself or through a third party other than in conjunction with
WebMD, subject to the provisions of the preceding paragraph. The parties acknowledge that based on
client preferences such product may be accessible through channels in addition to WebMD properties
(i.e., client websites, provider websites, etc).
(c) Right of First Refusal. To the extent that Practice Services identifies in its
business a need for a Consumer Directed Application in order to support a business requirement
related to the marketing of its core services, Practice Services will first present WebMD with the
opportunity to meet Practice Services’ requirement for the Consumer Directed Application with
written notice of the terms and specifications and requirements for the Consumer Directed
Application. WebMD will notify Practice Services within thirty (30) days of receipt of Practice
Services’ written notice as to whether or not it elects to provide the Consumer Directed
Application. If WebMD elects to provide the Consumer Directed Application, WebMD will provide the
specifications and parameters for the applicable Consumer Directed Application together with a
reasonable schedule for delivery of the Consumer Directed Application, on a basis consistent with
Practice Services’ business requirements, and Practice Services agrees that WebMD shall be the
provider of such Consumer Directed Application. If WebMD elects not to provide the Consumer
Directed Application, or after electing to do so and providing a reasonable delivery schedule,
fails to substantially comply with such schedule (after written notice and a thirty (30) day
opportunity to cure such failure), Practice Services may pursue that opportunity through a third
party or on its own, on substantially the same terms as discussed with WebMD. Practice Services
will keep WebMD apprised of its marketing efforts related to Consumer Directed Applications.
(d) Scope of Consumer Directed Applications. The parties acknowledge that Consumer
Directed Applications include, but are not limited to, applications and tools that are directed to
individual consumers, plan members or patients to assist such persons in (a) communicating with, or
viewing information from, providers, (b) communicating with, or viewing information from, payors,
(c) making informed benefit, provider and/or treatment choices, through access to content, personal
health records, plan comparison tools, benefit comparison tools, cost treatment indicators,
calculators, and/or other tools, or (d) managing and
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utilizing consumer directed health plans and the related other health savings and other
consumer directed accounts.
(e) Permitted Applications. For purposes of this Section 2, the term “Permitted
Applications” means the patient-facing application linked to practice management and EHR system
at Practice Services, as currently contemplated by Practice Services with a third party provider,
provided that notwithstanding the foregoing, Practice Services will also enable WebMD to deliver
this solution as described in Section 2(f) below.
(f) Provider Messaging; Patient-Facing Provider Portal. The parties have identified
several specific applications that are subject to the terms of the Agreement as follows:
(i) Practice Services is contemplating delivery through its respective products and services,
applications which may enable messaging to and from the provider. Practice Services agrees that,
if implemented by Practice Services, WebMD shall have the right to access this capability to send
communications. To the extent that Practice Services charges for its service, WebMD will be
provided the most favorable rates offered third parties for such service.
(ii) Practice Services is contemplating functionality with a specific third party pursuant to
which a patient-facing portal through the provider (linked to practice management and/or an EHR
system) will be available to communicate information, such as scheduling appointments, access to
lab results and provider directory information. Practice Services acknowledges that, if
implemented by Practice Services, WebMD shall have the right to make this application available
through WebMD. Practice Services will use commercially reasonable efforts to expeditiously to
develop and implement the applications referred to in (f)(i)-(f)(ii) above, and in a manner that
meets the parties’ reasonable specifications. Each such party will bear their own costs of such
development. In addition to its other obligations in the Agreement, Practice Services will not
work on such applications with entities that are competitive to WebMD, which includes online
services and websites that provide general consumer online services and portals (including but not
limited to xxxxx.xxx, xxx.xxx and xxxxx.xxx), online health management application providers and
other high traffic websites that include healthcare and non-healthcare related content and
services, and more specialized health care related providers of online services, tools and
applications for health care audiences, such as xXxxxxxx.xxx, xxxxx.xxx and xxxxxxx.xxx, as such
list may be updated by WebMD from time to time.
(g) Health record integration. Practice Services agrees that, subject to applicable
law, Practice Services will provide WebMD reasonable access to the information collected by
Practice Services through its products and services for purposes of enabling WebMD Health to engage
in and support its products and services referred to herein. To the extent that consent of any
provider, patient or other third party is necessary to provide such data to WebMD, Practice
Services agrees to use commercially reasonable efforts to obtain all such necessary consents during
the term of the Agreement. After the termination of the Agreement, WebMD shall have the right to
use and continue to receive such information for the benefit of users of such products and services
which include this data, except to the extent that any applicable consent has been revoked or is no
longer otherwise effective.
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SECTION 3. Fees and Payment
(a) Sales Commission. Subject to the terms and conditions of this Agreement, Practice
Services shall pay WebMD a 10% sales commission on the Net Sales of Internal Clinical Quality
Services by WebMD as provided in Section 1(e) above.
(b) Calculation of Payments. Payments due hereunder are exclusive of any applicable
taxes. “Net Sales” shall mean revenue obtained from the sale or license of the applicable
product, less deductions from gross sales for credits, returns, allowances and other customary
discounts, but does not include bad debts. If a sale of a product to which a royalty or commission
applies under this Section 3 is bundled and priced together with other services as to which no
royalty or commission is payable hereunder, the parties will equitably allocate a portion of the
total sales price to the applicable product as to which the royalty or commission is payable. Any
royalties or commissions paid on Net Sales that are subsequently refunded or rebated for any reason
shall be repayable, and may be deducted from any current or future royalties or commissions
payable. Royalty and commission payments will be made quarterly within thirty (30) days following
the end of each quarter. Interest shall be payable on all late payments in the amount of 1% per
month until paid. Each party will keep accurate records, which are sufficient to calculate all
payments due to the other party and will provide such records to the other party upon request.
(c) Payment for Consumer Directed Applications. For each Consumer Directed
Application provided to Practice Services pursuant to Section 2(a) of this Agreement, the payment
to WebMD for such Consumer Directed Application shall be the greater of: (i) WebMD’s Cost (as
defined below) plus 50%; or (ii) WebMD’s established market price for such product (which price
shall be competitive with pricing provided to similar customers purchasing substantially the same
products at the same volume/commitment levels). “Cost” shall mean the full cost incurred
by WebMD to provide the Consumer Directed Application, including its direct costs incurred, such as
labor costs and materials, and an appropriate allocation of indirect costs, such as allocations for
rent, utilities, and corporate overhead, etc. In addition to the foregoing, if, pursuant to
Section 2(a), Practice Services sells any Consumer Directed Application, Practice Services will
also pay WebMD a 10% royalty on Net Sales of such Consumer Directed Applications by Practice
Services. In addition, if the parties develop a patient financial responsibility Consumer Directed
Application as provided in the first sentence of Section 2(b) above, the parties will equitably
determine the allocation between the parties of the sales price for such product. In addition, if
WebMD has agreed to provide an External Clinical Quality Application or Consumer Directed
Application pursuant to Section 1(c) or Section 2(c) above, respectively, and if development fees
are payable by Practice Services to WebMD regarding such Application prior to completion of such
Application, WebMD agrees that if it terminates the Agreement pursuant to Section 4(c) before the
completion and delivery of such Application to Practice Services, WebMD will refund such
development fees that have been paid by Practice Services.
SECTION 4. Term; Termination
(a) Initial Term. The term of this Agreement shall commence on the date hereof and
shall remain in effect for a period of five (5) years from the Effective Date, unless
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sooner terminated in accordance with the provisions of Section 4(b) or Section 4(c).
Notwithstanding termination of this Agreement, after termination of this Agreement, each party
shall continue to pay any royalty or commissions due hereunder relating to a sale contracted during
the term of the Agreement, but provided after termination, but in no event shall such royalty or
commission be payable more than one (1) year after termination of this Agreement.
(b) Termination for breach. In the event either party materially breaches this
Agreement and fails to cure such breach within ninety (90) days following receipt of written notice
describing in reasonable detail the facts and circumstances concerning the breach, the other party
may terminate this Agreement. Notwithstanding the foregoing, if either party alleges a breach of
this Agreement by the other party and such other party disputes such allegations of breach, the
party alleging breach agrees to comply with the terms of this Agreement until such dispute is
resolved by the parties or by a determination through arbitration as provided in Section 10,
without prejudice to all remedies available to WebMD, provided that this provision is not intended
to prevent WebMD from exercising its right to terminate this Agreement in accordance with the
provisions of Section 4(c) subject to the second sentence of Section 4(c).
(c) Termination by WebMD. At any time during the term of this Agreement, upon thirty
(30) days written notice, WebMD may, in its sole discretion and with or without cause, terminate
(i) the Agreement and/or (ii) the provisions of Section 2 above. In the event that WebMD delivers
an External Clinical Quality Application or Consumer Directed Application to Practice Services
pursuant to this Agreement, notwithstanding any termination of this Agreement by WebMD pursuant to
the preceding sentence, WebMD will continue to make such application available to Practice Services
for the Initial Term of this Agreement (i.e., five years from the Effective Date), unless the
parties mutually negotiate and agree in writing on a different term for the use of such application
at the time WebMD provides such application.
SECTION 5. Confidential Information
(a) Definition. “Confidential Information” means any confidential, trade
secret or other proprietary information disclosed by one party to the other under or in connection
with this Agreement, except for information that: (i) is already known to the receiving party
without an obligation of confidentiality at the time received from the disclosing party; (ii) is
developed by the receiving party independent of the other party’s Confidential Information; (iii)
is obtained from a source other than the disclosing party not known to be subject to an obligation
of confidentiality and without breach of this Agreement; (iv) is in the public domain when
received, or thereafter enters the public domain through no fault of the receiving party; or (v) is
lawfully required to be disclosed to any governmental agency or is otherwise required to be
disclosed by law, provided that, before making such disclosure, the receiving party shall give the
disclosing party an adequate opportunity to interpose an objection or take action to assure
confidential handling of such Confidential Information. Each party acknowledges that the other’s
customer list is the Confidential Information of such other party and shall only be used by such
party as provided by the terms of this Agreement.
(b) Restrictions on Use. The receiving party shall: (i) not disclose the Confidential
Information to any third party, other than its employees, agents or independent contractors who are
bound, in writing, by similar confidentiality obligations and who have a need
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to know such Confidential Information, (ii) not use the Confidential Information in any
fashion except for purposes of performing this Agreement, and (iii) take steps consistent with its
protection of its own confidential and proprietary information (but in no event exercise less than
reasonable care) to prevent unauthorized disclosure of the Confidential Information.
(c) Personal Data. In the performance of this Agreement, Practice Services and WebMD
and their employees, subcontractors, and other agents may have access to certain Confidential
Information of each other’s respective clients referred to as “Individual Information”.
Individual Information includes, but is not limited to, information which, in coded or uncoded
format, in whole or in part, relates to patient records or any patient identifiable information,
dependents or physicians, including, without limitation, their respective names, addresses, zip
codes, social security numbers, drug or medical claims data, or other personal data.
(d) Termination. Subject to the terms of this Agreement and to applicable law, upon
the termination or expiration of this Agreement, the parties shall promptly return or destroy all
Confidential Information of the other and not retain any copies of the Confidential Information of
the other party.
SECTION 6. Cooperation
During the term of this Agreement and for a period of three (3) years after termination for
any reason, each party shall have the right upon reasonable prior written notice, and no more than
one (1) time in each calendar year, to inspect any books, records and files maintained by the other
party relating to services under this Agreement in order to verify that the other party has
complied with its obligations under this Agreement as they relate to payment of royalties and/or
commissions, and as they relate to the confidentiality provisions of Section 5 above. Neither
party shall destroy or permit the destruction of (without first having offered to deliver to the
other party) any such books, records and files for the time period during which they would be
required to retain such books, records or files by applicable law. Practice Services and WebMD
shall cooperate with one another in a timely manner in any administrative or judicial proceeding
involving any matter affecting the potential liability of either Practice Services or WebMD
hereunder. Such cooperation shall comprise providing reasonable access to the other party, during
normal business hours, to all books, records and information, officers and employees (without
substantial interruption of employment or the business) necessary in connection with any
administrative or judicial proceeding or the compliance with law, in each case, relating to this
Agreement. The Party requesting access to any books, records, information, officers, or employees
pursuant to this Section shall bear all reasonable out-of-pocket costs and expenses (except
reimbursement of salaries, employee benefits and general overhead) incurred by the other party in
connection with providing access to such books, records, information, officers or employees. The
parties will develop mutually acceptable reporting of activities under this Agreement.
SECTION 7. Disclaimers
(a) EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT
SHALL EITHER PARTY OR ITS SUPPLIERS
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OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY, HOWEVER ARISING, FOR INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF THE OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER OR ITS ROYALTY OR
COMMISSION OBLIGATIONS, WEBMD’S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION IN
ANY CALENDAR YEAR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL NOT EXCEED ONE MILLION DOLLARS
($1,000,000) IN ANY SUCH CALENDAR YEAR. THIS SECTION REFLECTS AN ALLOCATION OF RISK BETWEEN THE
PARTIES, IS NOT A PENALTY, AND SHALL BE EXCLUSIVE. THIS SECTION SHALL APPLY DESPITE ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
(c) WEBMD REPRESENTS THAT ANY EXTERNAL CLINICAL QUALITY APPLICATION OR CONSUMER DIRECTED
APPLICATION PROVIDED TO PRACTICE SERVICES PURSUANT TO THIS AGREEMENT SHALL CONFORM TO THE
SPECIFICATIONS PROVIDED BY WEBMD WITH SUCH APPLICATIONS. PRACTICE SERVICES REPRESENTS THAT ANY
INTERNAL CLINICAL QUALITY APPLICATIONS PROVIDED BY PRACTICE SERVICES PURSUANT TO THIS AGREEMENT
WILL CONFORM TO THE SPECIFICATIONS PROVIDED BY PRACTICE SERVICES WITH SUCH APPLICATIONS. EXCEPT AS
PROVIDED IN THE PRECEDING TWO SENTENCES, NEITHER COMPANY MAKES ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED (A) REGARDING THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY
OR EFFECTIVENESS OF ITS RESPECTIVE APPLICATIONS; OR (B) THE AMOUNT OF SALES THAT MAY BE GENERATED
FROM THE OTHER’S APPLICATIONS. WITHOUT LIMITING THE FOREGOING, NEITHER PARTY MAKES ANY
REPRESENTATIONS THAT THE OTHER’S USE OF ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE
EXPRESS WARRANTIES IN THIS SECTION 7(c) ARE IN LIEU OF ALL OTHER WARRANTIES BETWEEN THE PARTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND SUCH WARRANTIES
ARE HEREBY DISCLAIMED.
SECTION 8. Indemnity
(a) Indemnification by WebMD. WebMD will indemnify, defend and hold harmless, at its
own expense, any claims, suits, losses, damages, liabilities, costs, expenses and actions against
Practice Services brought by a third party to the extent that the action is based upon a claim that
any External Clinical Quality Application or Consumer Directed Application provided by WebMD, when
used in accordance with this Agreement, infringes any proprietary right of any third party, and
WebMD will pay those costs and damages finally awarded against Practice Services (including
reasonable 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
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action; provided, however, that WebMD shall have no obligation pursuant to the foregoing
indemnification provision to the extent that any claim is based on or related to (a) any use of
such Applications in violation of this Agreement, or (b) any use of such Applications in
conjunction with any product, data, service, hardware or software not expressly contemplated to be
used in conjunction with such tools. If Practice Services’ use is enjoined by reason of an
infringement claim, WebMD’s sole obligation shall be to either (i) procure the right for Practice
Services to continue using the Application, (ii) replace or modify the components of the
Application subject to the infringement claim with non-infringing components of substantially
equivalent functionality, or (c) if neither of the above are available, to refund to Practice
Services the commissions paid for access to such Application. The foregoing states the entire
liability of WebMD with respect to any infringement claims and Practice Services hereby expressly
waives any other such liabilities.
(b) Indemnification by Practice Services. Practice Services will indemnify, defend
and hold harmless, at its own expense, any claims, suits, losses, damages, liabilities, costs,
expenses and actions against WebMD brought by a third party to the extent that the action is based
upon a claim that the Internal Clinical Quality Applications when used in accordance with this
Agreement, infringe any proprietary right of any third party, and Practice Services will pay those
costs and damages finally awarded against WebMD (including reasonable 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 Practice Services shall have no
obligation pursuant to the foregoing indemnification provision to the extent that any claim is
based on or related to (a) any use of such Internal Clinical Quality Applications in violation of
this Agreement, or (b) any use of such Internal Clinical Quality Applications in conjunction with
any product, service, data, hardware or software not expressly contemplated to be used in
conjunction with such tools. If WebMD’s use is enjoined by reason of an infringement claim,
Practice Services’ sole obligation shall be to either (i) procure the right for WebMD to continue
using such Clinical Quality Applications, (ii) replace or modify the components of such Clinical
Quality Applications subject to the infringement claim with non-infringing components of
substantially equivalent functionality, or (c) if neither of the above are available, to refund to
WebMD the commissions paid by WebMD for access to such Clinical Quality Applications. The
foregoing states the entire liability of Practice Services with respect to any infringement claims
and WebMD hereby expressly waives any other such liabilities.
SECTION 9. Insurance
Each party will maintain in effect during the term of this Agreement, insurance with at least
the following limits:
| • | Xxxxxxx’x Compensation with at least statutory limits; | ||
| • | Employer’s Liability Insurance with limits of not less than statutory limits (except in states in which there are no statutory limits for Employer’s Liability Insurance, then with limits of not less than $1,000,000 each accident, $1,000,000 disease per each employee, and $1,000,000 disease policy limit); |
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| • | Commercial General Liability Insurance (including, broad form contractual liability coverage for it’s obligations under this Agreement) with limits of not less than: |
| — Bodily Injury | $1,000,000 per occurrence, and | |||
| $2,000,000 in the aggregate, and | ||||
| — Property Damage | $1,000,000 per occurrence, and | |||
| $1,000,000 in the aggregate; and |
| • | Excess/Umbrella Liability with limits of not less than $3,000,000 per occurrence and $3,000,000 in the aggregate. |
The aggregate minimum limits set forth above are per policy; provided however, that each
policy shall not have a term longer than eighteen (18) months. Each party agrees to provide the
other with a Certificate of Insurance evidencing the coverage required in this Section upon the
other’s written request. All such policies and certificates of insurance shall also require that
the insurer give the other party not less than thirty (30) calendar days’ advance written notice of
any cancellation in insurance coverage Each party must also provide the other with thirty (30)
calendar days’ prior written notice of any non-renewal of the insurance coverage, cancellation of
any insurance coverage, material change in the insurance policies, and/or reduction in limits.
SECTION 10. Miscellaneous.
(a) Existing Third Party Agreements. 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.
(b) Specific Performance. 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.
(c) Amendments and Waivers. Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by
WebMD and Practice Services or, in the case of a waiver, by the party or parties against whom the
waiver is to be effective.
(d) No waiver. 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.
(e) Notice Generally. 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
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addresses (or at such other address for a party as shall be specified by notice given in
accordance with this Section 10(e)):
If to Practice Services:
Emdeon Practice Services, Inc.
0000 X. Xxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: President
0000 X. Xxxx Xxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: President
If to WebMD:
or at such other address as may be substituted by notice given as herein provided.
(f) Successors and Assigns. No party shall assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the other parties; provided,
however, that Practice Services may assign or transfer, in its sole discretion and without the
consent of WebMD, its rights or obligations under this Agreement to one or more direct or indirect
wholly-owned subsidiaries of Practice Services’ ultimate parent; provided, further, that no such
assignment by Practice Services shall relieve Practice Services of its obligations hereunder. 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 Practice Services or its
business (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, Practice Services and its business 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 Corporation holds of WebMD, and regardless of any sale, transfer,
change of control or other disposition, restructuring or reorganization of Emdeon Corporation 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).
(g) No Third Party Beneficiaries. 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.
(h) Headings. 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.
(i) Governing Law; Dispute Resolution. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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(i) 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. Practice Services 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 Paragraph (ii) of this Section
10(i) to resolve such matter, which the parties agree is the sole and 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 Paragraph (i) 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 Paragraph (i) that would be admissible or
discoverable shall not be rendered inadmissible or non-discoverable solely as a result of such use.
(ii) The following process shall be followed if, and after, the informal procedures in
Paragraph (i) 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
10(i). 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 Practice Services 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 10, 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. The parties also agree that the arbitrators
shall have the power to determine the amount of the equitable allocation for any sale referred
to in the last sentence of Section 3(c) above in the event of any dispute between the parties as to
such the determination. If JAMS is no longer available or is unwilling to accept the designation
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provided hereunder, the parties shall mutually agree upon a substitute professional neutral
administrator to replace JAMS.
(j) Severability. 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.
(k) Entire Agreement. 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.
(l) Independent Contractors. 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.
(m) Cumulative Remedies. 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.
(n) Further Assurances. 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.
(o) Construction. 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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IN WITNESS WHEREOF, Practice Services and
WebMD have caused this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
| EMDEON PRACTICE SERVICES, INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||||
| Name: | Xxxx X. Xxxxxxxx | |||||||
| Title: | VP — Legal | |||||||
| WEBMD HEALTH CORP. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||||
| Title: | VP — General Counsel | |||||||
ACKNOWLEDGEMENT
The undersigned hereby acknowledge their receipt of this Agreement and, by signing below,
hereby consent to the amendment and restatement of the Original Agreement, as set forth herein.
| ENVOY CORPORATION | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxx | |||||||
| Title: | SVP — Legal | |||||||
| EMDEON CORPORATION | ||||||||
| By: | /s/ Xxxxxxx Xxxx | |||||||
| Name: | Xxxxxxx Xxxx | |||||||
| Title: | EVP — Legal | |||||||
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