AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT
EXHIBIT 10.1
AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT
AMENDED AND RESTATED BUSINESS SERVICES AGREEMENT (this “Agreement”), dated as of
September 25, 2006, between EBS Master LLC, a Delaware limited liability company (“Master
LLC”), ENVOY CORPORATION, a Delaware corporation (“Envoy”), and WEBMD HEALTH CORP., a
Delaware corporation (“WebMD”).
WHEREAS, WebMD, Envoy, Emdeon Corporation, a Delaware corporation (“Emdeon”), and
Emdeon Practice Services, Inc., a Delaware corporation (“Practice Services” and,
collectively with Envoy, WebMD and Emdeon, the “Original Parties”), previously entered into
that certain Business Services Agreement (the “Original Agreement”), dated as of January
31, 2006;
WHEREAS, the Original Parties and ViPS, Inc., a Maryland corporation (“ViPS”), (i)
have permitted the withdrawal of Emdeon from the Original Agreement, (ii) have amended and restated
the Original Agreement as it relates to WebMD and Practice Services into a separate agreement
between WebMD and Practice Services dated as of August 7, 2006, and (iii) desire to amend and
restate the Original Agreement as it relates to WebMD and Envoy into a separate restated and
amended agreement as it relates to WebMD and Envoy, and which agreement (with Master LLC), is as
set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants
hereinafter set forth, and intending to be legally bound, Envoy, and WebMD hereby agree to amend
and restate the Original Agreement as between Envoy and WebMD to read as follows:
SECTION 1. Clinical Applications
(a) Envoy provides, and may develop and/or acquire in the future during the term of this
Agreement, online products and services that provide clinical measures of physicians, hospitals
and other providers (collectively “Clinical Applications”), including but not limited to, for
example, WebMD’s Select Quality Care® Products, ViPS’ MCS Source, MedMeasures, and Prism suite of
products, and which may include the benefit of the clinical rules supporting these applications..
(b) Products Utilizing Clinical Applications. During the term of this Agreement,
Envoy will not license or provide Clinical Applications other than through WebMD as provided
herein. The pricing pursuant to which WebMD will make the Clinical Applications available to an
Envoy customer as provided in this Section 1(b) or 1(c ) will be as provided in
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Section 3(a). The parties acknowledge that based on client preferences, the Clinical
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 Envoy identifies in its business a
need for a Clinical Application in order to support a business requirement related to the marketing
of its core services to a client or potential client, Envoy will first present WebMD with the
opportunity to meet Envoy’s requirement for the Clinical Application for such client or potential
client with written notice of the terms and specifications and requirements for the External
Clinical Quality Application. WebMD will notify Envoy within thirty (30) days of receipt of
Envoy’s written notice as to whether or not it elects to provide the Clinical Application for such
client or potential client. If WebMD elects to provide the Clinical Application, WebMD will
provide specifications for the applicable Clinical Application consistent with the Envoy proposed
specifications together with a reasonable schedule for delivery of the Clinical Application, on a
basis consistent with Envoy’s business requirements, and Envoy agrees that WebMD shall be the
provider of such Clinical Application. If WebMD elects not to provide the Clinical Application, or
after electing to do so and providing a reasonable delivery schedule and specifications, fails to
substantially comply with such schedule and specifications (after written notice and a thirty (30)
day opportunity to cure such failure), Envoy may pursue that opportunity for such client or
potential client through a third party or on its own, on substantially the same terms as discussed
with WebMD. Envoy will keep WebMD apprised of its marketing efforts related to Clinical
Applications. 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. If WebMD
delivers a Clinical Application pursuant to this Section 1(c ), it will not be required to deliver
updates to such Application or create substantially similar applications at the request of Envoy
(and Envoy may not make such request) more frequently than WebMD makes such updates available to
its customers generally (ie, once per year).
SECTION 2. Consumer Directed Applications
(a) Licensing and Provision through WebMD. Envoy 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,
except as otherwise provided or permitted in this Section 2, and Envoy agrees that so long as this
Agreement is in effect Envoy will not market, offer, license or provide Consumer Directed
Applications except through WebMD as provided herein or otherwise expressly provided herein. 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, payers, (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 utilizing consumer directed health plans and the related other health savings and
other consumer directed accounts. For the avoidance of doubt, notwithstanding anything to the
contrary in this Section 2, in the event that pursuant to a client request in connection with the
marketing by Envoy of its core services,
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Envoy is required to support a consumer directed application provided by one of its health
plan customers to such customer’s member base by furnishing such customer claims data for
integration with such customer’s consumer directed application, Envoy will use reasonable
commercial efforts to promote the WebMD consumer directed application in place of such consumer
directed application, and if after good faith attempts to promote and deliver the WebMD
application, Envoy is unsuccessful in delivering the WebMD application and is at risk for not
obtaining the client’s business related thereto as a result of a failure to integrate with such
customer’s consumer directed application, Envoy will be permitted to proceed to integrate with such
consumer directed application, so long as Envoy receives only its reasonable costs for providing
such support, and to the extent the consumer directed application is provided by a third party,
Envoy does not receive any remuneration related thereto. In addition, notwithstanding anything to
the contrary, nothing in this Section 2 shall preclude or restrict Envoy from continuing to provide
patient access to patient statements electronically through third party websites (that are not
competitive to WebMD) for viewing and payment as currently conducted pursuant to ExpressBill’s
existing relationships with Internet Payment Exchange, Inc. and Verus, Inc.
(b) Right of First Refusal. To the extent that Envoy 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 to a client or potential client, Envoy will first present WebMD with
the opportunity to meet Envoy’s requirement for the Consumer Directed Application for such client
or potential client with written notice of the terms and specifications and requirements for the
Consumer Directed Application. WebMD will notify Envoy within thirty (30) days of receipt of
Envoy’s written notice as to whether or not it elects to provide the Consumer Directed Application
for such client or potential client. If WebMD elects to provide the Consumer Directed Application,
WebMD will provide the specifications for the applicable Consumer Directed Application consistent
with the proposed Envoy specifications together with a reasonable schedule for delivery of the
Consumer Directed Application, on a basis consistent with Envoy’s business requirements, and Envoy
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 and specifications, fails to substantially comply with such schedule and
specifications (after written notice and a thirty (30) day opportunity to cure such failure), Envoy
may pursue that opportunity for such client or potential client through a third party or on its
own, on substantially the same terms as discussed with WebMD. Envoy will keep WebMD apprised of
its marketing efforts related to Consumer Directed Applications. If WebMD delivers a Consumer
Directed Application pursuant to this Section 2(b), it will not be required to deliver updates to
such Application or create substantially similar applications at the request of Envoy (and Envoy
may not make such request) more frequently than WebMD makes such updates available to its customers
generally (i.e., once per year).
(c) Identified Consumer Directed Applications. The parties have identified several
Consumer Directed Applications described in this Section 2(c ) that the parties have agreed to work
expeditiously and in good faith to develop and implement in a manner that meets the parties
reasonable expectations. The parties will establish mutually agreed upon reasonable development
plans and timelines regarding these products. These products are as follows:
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(i) Patient Cost of Care CDA. The parties have identified a potential Consumer
Directed Application which may provide information to an individual plan member, employee or
patient regarding the potential cost of care or financial responsibility for individual
medical and/or drug claims. Subject to the provisions of Section 1(d) below, the parties
agree that Envoy will supply WebMD with data and information, including eligibility/health
benefit information and other data relevant to developing this Consumer Directed Application
which will assist patients and plan members in understanding financial liability for
specific services from specific providers based on the patient’s or plan member’s specific
plan design and deductible. Envoy agrees that any Consumer Directed Application that
provides individual patient financial information to the individual plan member or patient
will be provided and delivered by WebMD, rather than Envoy, and during the term of the
Agreement Envoy will not market, offer or make any such product available itself or through
a third party other than through WebMD as provided in Section 2(b). Subject to the terms of
this Agreement, the parties acknowledge that based on client preferences such product may be
accessible through channels other than WebMD properties (i.e., client websites, provider
websites, etc.).
(ii) Patient Financial Record Application. The parties have identified a
potential Consumer Directed Application referred to as the Patient Financial Record (the
“PFR”). The PFR will enable individual patients and plan members to (a) download,
understand and reconcile all of their EOBs by doctor, by plan year and in relation to
various deductibles (individual vs. family, medical vs. dental, etc.); (b) self input and
track other healthcare expenditures; and (c) manage preferences with respect to the order of
deducting funds from HSSA, HRA, FSA, credit and debit accounts. Subject to the provisions
of Section 1(d) below, the parties agree that Envoy shall populate WebMD’s PFRs with data
from its healthcard and paper programs and its other businesses, which hold personal
financial information. In addition, healthcard programs will be linked to WebMD’s PFRs and
integrate data to and from WebMD’s Personal Health Record. Envoy agrees that the Consumer
Directed Application described herein will be provided and delivered by WebMD, rather than
Envoy, and during the term of the Agreement, Envoy will not market, offer or make any such
product available itself or through a third party other than through with WebMD as provided
in Section 2(b). Subject to the terms of this Agreement, the parties acknowledge that based
on client preferences such product may be accessible through channels other than WebMD
properties (i.e., client websites, provider websites, etc.).
(iii) Identified Patient Toolset Application. WebMD provides decision support
tools ands services that support consumer directed health plans and health savings accounts
on behalf of plan members, employees and patients, including a retirement health cost care
and HSA planner, cost estimator and expense alerts (collectively “Patient Toolsets”). Envoy
agrees that the Consumer Directed Application described herein will be provided and
delivered by WebMD, rather than Envoy, and during the term of the Agreement, Envoy will not
market, offer or make any such product available itself or through a third party other than
through WebMD as provided in Section 2(b). Subject to the terms of this Agreement, the
parties acknowledge that based on client
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preferences such product may be accessible through channels other than WebMD properties
(i.e., client websites, provider websites, etc.).
(iv) Provider Messaging. In order to support a business requirement related to
the delivery of its core services Envoy is contemplating delivery of applications which may
enable messaging to and from the provider. Envoy agrees that, if and only if implemented by
Envoy, WebMD shall have the right to access this capability to send communications, at no
charge to WebMD. To the extent that Envoy charges for its service, WebMD will be provided
the most favorable rates offered third parties for such service In addition to its other
obligations in the Agreement, Envoy will not work on such applications with entities that
are competitive to WebMD which provides online services and websites through 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.
(v) Health Record Integration. Envoy acknowledges that during the term of the
Agreement, WebMD’s PHR Product will be the only PHR Product offered by Envoy to the extent
necessary to support a business requirement related to Envoy’s core services For purposes
of the Agreement, the term “PHR Product” shall mean any personal health record application
on behalf of an individual patient or plan member, or any other service, product or
application on behalf of an individual plan member or patient that holds personally
identifiable information regarding an individual, provided however that the parties
acknowledge that a PHR shall not include an electronic medical record held by a physician or
a hospital. Notwithstanding anything to the contrary provided herein, this provision is not
intended to prohibit transfer of data or integration on a provider-to-provider basis.
(d) Data Provision. Envoy agrees that, subject to applicable law, Envoy will make
available to WebMD the information collected by Envoy through its products and services for
purposes of enabling WebMD to engage in and support its products and services referred to in this
Agreement, including but not limited to provider, patient or third party data (such data will also
include plan affiliation information at the provider level), and the parties will work in good
faith to develop specifications and protocols for the delivery of such data, provided that such
information provided to WebMD by Envoy will not be resold by WebMD to healthcare providers or
payers outside of a product or service application. To the extent that consent of any provider,
patient or other third party is necessary to provide such data to WebMD, Envoy agrees to work in
good faith to obtain all such necessary consents during the term of the Agreement. After the
termination of the Agreement, WebMD shall have the right to continue to receive such information
for its products and services which include this data, except to the extent that any applicable
consent has been revoked or is no longer otherwise effective; provided however that upon
termination of the Agreement, upon written notice to Envoy by WebMD within thirty (30) days after
termination, WebMD shall have the right to continue to receive such information for any of its
products and services which include such information (but subject to the exceptions in this
sentence) for up to five years after such termination of the Agreement, at a mutually
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agreeable price consistent with pricing to similarly situated purchasers for similar
information products at comparable volume/commitment levels (and to the extent that the parties are
unable to mutually agree upon such a price, the arbitrators in Section 10 shall be used to
determine such price) . Each party shall perform its activities hereunder in compliance with all
applicable laws, rules, and regulations. From and after the Effective Date, the parties shall meet
annually or as otherwise reasonably requested by the other party to discuss any potential impact
HIPAA or other applicable federal, state, local or other laws, rules or regulations, however
designated and in each case which become effective after the date hereof (collectively,
“Applicable Law”), may have on this Agreement. In the event a party believes that any
Applicable Law would reasonably be expected to adversely affect this Agreement, such party shall
promptly notify the other party in writing. Individuals designated by each party shall meet in
person or by telephone as frequently as may be necessary to determine any modifications that are
necessary to resolve such compliance issues. If such designated individuals cannot resolve such
compliance issues within thirty (30) days after the initial written notice, the issue shall be
referred to the highest ranking officers of each party. In connection with any compliance issue,
the parties agree at all times to negotiate a resolution in good faith and to use commercially
reasonable efforts to make such modifications as may be necessary to comply with Applicable Laws.
The parties acknowledge and agree that it is the intent of the parties to preserve the relationship
contemplated by this Agreement.
(e) Applicability to Master LLC. The terms, conditions, obligations and restrictions
in this Agreement applicable to Envoy shall also apply to Master LLC and Envoy’s subsidiaries to
the same extent as applicable to Envoy.
SECTION 3. Fees and Payment
(a) Contracting/Payment for Clinical Applications and Consumer Directed Applications.
The parties agree that the preferred manner in which Clinical Applications and Consumer Directed
Applications will be delivered by WebMD pursuant to Sections 1 and 2 above shall be through WebMD
contracting directly with the third party using such applications, and Envoy will not be a party to
such agreement. However, the parties recognize that the circumstances in each such case may require
different means of contracting, such as through Envoy instead of WebMD, depending upon the
particular application provided, and the parties will work in good faith in each such case to
mutually agree upon the manner in which contracting for the Clinical Application or Consumer
Directed Application with the third party will be handled, however, the parties expect that the
standard form of agreements used by WebMD for its customers may serve as the basis of contracting
so as to facilitate such process, and if a standard agreement is used, WebMD will supply such form
within two (2) business days. With respect to pricing, the parties agree that if WebMD is required
to incur development or customization costs in the delivery of a Clinical Application or Consumer
Directed Application, WebMD shall be reimbursed for its full costs incurred by WebMD in developing
or customizing the Clinical Application or 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, the parties will
mutually agree upon a reasonable price for such product to be charged to Envoy or the customer, as
the case may be, and any royalty commission to be paid to Envoy if WebMD contracts directly with
the customer. In situations in which the Clinical Application or Consumer Directed Application
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to be provided by WebMD is substantially identical to products offered by WebMD, the pricing
for such product should serve as an indicator of the price for the Clinical Application or Consumer
Directed Application provided by WebMD and the price shall be generally consistent with pricing
provided to other similarly situated customers for the same product offering for the same
volume/commitment levels. The parties agree that if they are unable to mutually agree upon a price
for a Clinical Application or Consumer Directed Application, the arbitrators referred to in Section
10 shall be used to determine such pricing. If development fees are payable by Envoy 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, WebMD will refund such development fees that have been paid by Envoy.
(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. 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.
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 sooner
terminated in accordance with the provisions of Section 4(b) , 4(c) or 4(d). For purposes of this
Agreement, the Effective Date shall mean the closing of the transactions contemplated by the
Agreement and Plan of Merger among Emdeon, Master LLC, EBS Holdco, Inc., MediFax-EDI Holding
Company, EBS Acquisition LLC, GA EBS Merger LLC and EBS Merger Co. 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, except as may be provided by the terms of a
product offering provided under the last sentence of Section 4(c).
(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
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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 1 and 2 above. In the event that WebMD
delivers a Clinical Application or Consumer Directed Application to Envoy 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 for the Initial Term of this
Agreement (i.e., five years from the Effective Date), unless the WebMD has negotiated and agreed in
writing on a different term for the use of such application at the time WebMD provides such
application.
(d) Termination by Envoy. In the event that WebMD enters a “Competitive Business,”
Envoy shall have the right during the sixty (60) day period after it becomes aware that Envoy has
entered a “Competitive Business” to terminate this Agreement upon written notice to WebMD, provided
that WebMD does not cease to be engaged in such Competitive Business within such sixty (60) day
period. For purposes of this Section 4(d), WebMD has entered a “Competitive Business” if WebMD
becomes engaged, as one of its principle business lines, in the operation of (i) an electronic data
interchange (“EDI”) clearinghouse, substantially similar to the EDI clearinghouse operated by Envoy
as of the date hereof for the electronic routing of healthcare claims, eligibility verification
requests, electronic remittance advices, between healthcare providers and payers for purposes of
reimbursement, or (ii) the provision (ie, printing and mailing) of paper invoices and statements as
currently conducted by the ExpressBill subsidiary of Envoy, or (iii) the provision (ie, printing
and mailing) of paper checks and EOBs as currently conducted by the ABF Advanced Business
Fulfillment, LCC subsidiary of Envoy. For avoidance of doubt, if WebMD enters a business in which
the routing or provision of such transactions is incidental (for example, in connection with
physician e-visits), such business shall not be deemed to be a Competitive Business. In addition,
notwithstanding anything to the contrary contained in this Section, (i) WebMD may own, directly or
indirectly, an interest in a Competitive Business if the interest in the Competitive Business was
acquired, directly or indirectly, through purchase, merger, or otherwise, along with another
business and WebMD divests itself of the interest in the Competitive Business as promptly as
reasonably practicable and, in any event, within two years after consummating the acquisition
thereof, and (ii) Envoy and Master LLC acknowledge that WebMD may provide services to or receive
from entities that may be engaged in Competitive Businesses, in each case on an arm’s length basis,
and in no event shall the providing or receiving of such services in and of itself be deemed to be
a Competitive Business.
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
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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; (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. As between WebMD and Envoy, WebMD shall own
all right, title and interest in any Clinical Application or Consumer Directed Application provided
pursuant to the provisions of Section 1 or 2 above. Nothing in this Agreement shall prohibit WebMD
from developing any Clinical Application or Consumer Directed Application independent of Envoy.
(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 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, Envoy 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. Such information may only be
used by a party as permitted by the terms of this Agreement.
(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 prior 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 fees, 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. Envoy and WebMD shall cooperate with one another
in a timely manner in any administrative or judicial proceeding
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involving any matter affecting the potential liability of either Envoy or WebMD hereunder or
with respect to any governmental authority. Such cooperation shall include, without limitation,
making available to the other party, during normal business hours, all books, records and
information, officers and employees (without substantial interruption of employment) necessary or
useful in connection with any inquiry, audit, investigation or dispute, any litigation or any other
matter requiring any such books, records, information, officers or employees for any reasonable
business purpose. The party requesting or otherwise entitled 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 in
connection with providing such books, records, information, officers or employees. The parties
will develop mutually acceptable reporting of activities under this Agreement.
SECTION 7. Disclaimers
(a) IN NO EVENT SHALL WEBMD OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER ANY THEORY OF
LIABILITY, HOWEVER ARISING, FOR ANY COSTS OF COVER OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF ENVOY 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 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 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 CLINICAL APPLICATIONS OR CONSUMER DIRECTED APPLICATIONS PROVIDED
TO ENVOY PURSUANT TO THIS AGREEMENT SHALL CONFORM TO THE SPECIFICATIONS PROVIDED BY WEBMD WITH SUCH
APPLICATIONS. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, 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
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND SUCH
WARRANTIES ARE HEREBY DISCLAIMED.
SECTION 8. Indemnity
WebMD will indemnify, defend and hold harmless, at its own expense, any claims, suits, losses,
damages, liabilities, costs, expenses and actions against Envoy brought by a third party to the
extent that the action is based upon a claim that any Clinical 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 Envoy (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 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 Clinical Application or Consumer Directed Application in violation of this Agreement, or (b)
any use of such Clinical Application or Consumer Directed Application in conjunction with any
product, data, service, hardware or software not expressly contemplated to be used in conjunction
with such tools. If Envoy’s use is enjoined by reason of an infringement claim, WebMD’s sole
obligation shall be to either (i) procure the right for Envoy to continue using the Clinical
Application or Consumer Directed Application, (ii) replace or modify the components of the Clinical
Application or Consumer Directed 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 Envoy the commissions paid for access to such Clinical Application or Consumer
Directed Application. The foregoing states the entire liability of WebMD with respect to any
infringement claims and Envoy 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); | ||
• | 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 |
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• | 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 hereby acknowledge and agree that the rights of
WebMD hereunder are of a special character which gives them a particular value, for the loss of
which WebMD cannot be reasonably or adequately compensated in damages in any action at law, and
that a breach of this Agreement by Envoy or Master LLC will cause WebMD immediate and irreparable
injury and damage. Envoy and Master LLC therefore expressly agree that, in the event of a breach
or threatened breach of this Agreement or any part hereof by Envoy or Master LLC, WebMD shall at
its discretion, be entitled to injunctive and other equitable relief against Envoy or Master LLC,
including the relief of injunction and specific performance, to end or prevent such breach and to
secure enforcement of this Agreement without posting bond or the need to prove actual damages.
Resort to such equitable relief, however, shall not be construed as a waiver of any other rights or
remedies which WebMD may have for damages or otherwise.
(c) Amendments. Amendments to this Agreement shall be in writing and must be signed
by both parties 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 addresses
(or at such other address for a party as shall be specified by notice given in accordance with this
Section 10(e)):
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If to Master LLC:
c/o Envoy Corporation
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
If to Envoy:
Envoy Corporation
000 Xxxxx Xxxxx Xxxxxx 0,
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
If to WebMD:
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
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. 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 Master LLC or Envoy or
their businesses (including by way of stock sale, by sale of all or substantially all its assets
or by any other means or manner or structure) to a third party, Master LLC, Envoy and their
businesses shall continue to be subject to the obligations applicable to it and its business under
this Agreement. This Agreement shall remain in effect in accordance with its terms regardless of
the percentage ownership, if any, that Emdeon holds of WebMD, and regardless of any sale, transfer,
change of control or other disposition, restructuring or reorganization of Emdeon or WebMD or any
of their respective businesses (including by way of stock sale, by sale of all or substantially all
its assets or by any other means or manner or structure.
(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.
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(i) Governing Law; Dispute Resolution. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(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. Envoy 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 which party 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
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parties shall have the right to obtain such provisional injunctive relief from a court
of law designated in this Section pending the determination and award in the arbitration
proceeding. If JAMS is no longer available or is unwilling to accept the designation
provided hereunder, the parties shall mutually agree upon a substitute professional neutral
administrator to replace JAMS.
(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, Envoy and WebMD have caused this Agreement to be executed as of the date
first written above by their respective officers thereunto duly authorized.
ENVOY CORPORATION | ||||||||
By: | /s/ Xxxxxxx X Xxxx | |||||||
Name: | Xxxxxxx X. Xxxx | |||||||
Title: | Executive Vice President | |||||||
WEBMD HEALTH CORP. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxxx | |||||||
Title: | Executive Vice President | |||||||
EBS MASTER LLC | ||||||||
By: EBS Holdco, Inc., its sole member | ||||||||
By: | /s/ Xxxxxxx X Xxxx | |||||||
Name: | Xxxxxxx X. Xxxx | |||||||
Title: | Executive Vice President |
ACKNOWLEDGEMENT
The undersigned hereby acknowledges receipt of this Agreement and, by signing below, hereby
consents to the amendment and restatement of the Original Agreement, as set forth herein.
EMDEON CORPORATION | ||||||
By: | /s/ Xxxxxxx X Xxxx | |||||
Name: | Xxxxxxx X. Xxxx | |||||
Title: | Executive Vice President |
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