Exhibit 10.2
In this document an "#" indicates that confidential material has been omitted
pursuant to a request for confidential treatment filed with the Office of the
Secretary of the Securities and Exchange Commission together with the omitted
material.
AGREEMENT
This Agreement is entered into as of the 18 day of October, 2001 by and
between Medix Resources, Inc. ("Medix") a corporation located at 000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 and Merck-Medco Managed Care, L.L.C.
("MMMC") located at 000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx, XX 00000.
WHEREAS, MMMC is a leading prescriptions benefit management company ("PBM")
which provides managed PBM Services to approximately 60 million individuals who
are entitled to PBM Services through affiliation with a Plan Sponsor; and
WHEREAS, Medix has developed a system (the "Medix System") to facilitate
prescriber connectivity at the point-of-care ("POC") to relevant Patient Data
through the use of a proprietary software system to send and receive data and
Messages to and from practice management systems and to generate electronic
prescriptions; and
WHEREAS, MMMC and Medix (the "Parties") desire to enter into this Agreement
pursuant to which Medix will integrate the Medix System with the MMMC System for
purposes of transmitting PBM-related Patient Data and facilitating formulary
compliance, DUR messaging, prescription routing and/or other PBM Services, and
Plan Rule adherence by Participating Prescribers and MMMC Eligibles.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
premises set forth herein, MMMC and Medix agree as follows:
1. DEFINITIONS
The following terms used in this Agreement shall have the meaning set forth
below:
1.1 "Intellectual Property" means any and all developments, inventions,
discoveries, improvements, trade secrets, proprietary information,
methods, designs, processes, procedures, formulae, technical
know-how, computer databases, computer software, flow charts,
drawings, data, specifications, documentation, technology, ideas,
writings, customer lists, patents, trademarks, service marks, trade
names or product names (whether or not registered or registerable,
patented or patentable), copyrights and royalty rights, and all
applications, derivatives and/or registrations in respect of any of
the foregoing.
1.2 "Medix System" means the proprietary system developed by Medix to
facilitate prescriber connectivity at the point-of-care, consisting
of software, information and materials designed and developed by
Medix to provide physicians and their staffs with Patient Data
through interface with the MMMC System and facilitate prescription
transactions through MMMC for MMMC Eligibles. The functionalities of
the Medix System as of the date of this Agreement are described on
Schedule I to this Agreement, and include any enhancements, new
releases or new product versions.
1.3 "Messages" means any information that is sent and/or received via the Medix
System between the MMMC System and Participating Prescribers during
the process of prescribing for MMMC Eligible patients.
1.4 "MMMC Consumer Funded Program" means an unfunded prescription drug benefit
program, in which enrollees are entitled to certain PBM Services
through MMMC on a discounted basis.
1.5 "MMMC Eligible" means an individual who through affiliation with a Plan
Sponsor or enrollment in a MMMC Consumer Funded Program is entitled
to receive any PBM Services offered by MMMC.
1.6 "MMMC System" means the proprietary system of MMMC comprised of one or more
computer systems (including hardware, software and electronic data
transmission network(s)) owned and maintained by MMMC which are
designated by MMMC to receive and transmit Messages, Patient Data and
other information to and from Participating Prescribers and MMMC and
dispensing mail and retail pharmacies.
1.7 "Participating Prescriber" means a prescriber who has executed an agreement
with Medix for the use of the Medix System and has been provided
access to and use of the Medix System.
1.8 "Patient Data" means patient eligibility information, Plan Rules,
medication history, other health care data and other patient
information available through MMMC and Participating Prescribers
pertaining to the provision of PBM Services to MMMC Eligibles.
1.9 "PBM Services" means claims processing, mail service pharmacy services,
DUR, Formulary management/administration, Health Utilization and
Disease Management Programs, demand management services, pharmacy
network management, prescription routing and/or related services
provided by MMMC for Plan Sponsors and MMMC Eligibles.
1.10 "Plan Rules" means the prescription drug benefit parameters and rules and
related systems edits applicable to each Plan Sponsor.
1.11 "Plan Sponsor" means a corporation, association, insurance carrier, HMO,
governmental body or other entity that has a contract or other
arrangement in effect pursuant to which persons affiliated with such
Plan Sponsor are entitled to receive all or any portion of PBM
Services provided by MMMC.
1.12 "Targeted Prescriber" or "MMMC Targeted Prescriber" means a licensed
prescriber designated by MMMC in writing to Medix as a high
prescriber of medications to MMMC Eligibles.
1.13 "Project Plan" means a mutually agreed upon plan and timeline for
development and testing, including but not limited to integration and
user acceptance testing of the functionalities and capabilities
described in Schedule II.
2. PROJECT DEFINITION
Subject to the terms and conditions of this Agreement, Medix agrees to:
(i) develop and enhance the Medix System with the functionalities as set
forth in Schedule II to this Agreement; and
(ii) deploy the Medix System in collaboration with MMMC as set forth in
Section 3.
Medix shall be responsible for all costs and expenses incurred by Medix in
its development, enhancement and deployment of the Medix System pursuant to
this Agreement except as may otherwise be agreed upon in writing by MMMC.
Following the deployment of the Medix System to Participating Prescribers,
MMMC shall pay to Medix the Transaction Fees set forth in Schedule III for
the transmission of Messages between MMMC and Participating Prescribers via
the Medix System.
3. DEPLOYMENT AND UTILIZATION OF Medix SYSTEM - Medix shall use commercially
reasonable efforts to market and install the Medix System to MMMC
Prescribers as provided in this Agreement and the Deployment and
Utilization Plans. Medix shall work with MMMC to develop mutually agreed
upon utilization targets. The geographic focus of the project will be in
regions of Northern and Southern California, Chicago, Atlanta, and the New
York City metropolitan area.
4. Medix RESPONSIBILITIES
Medix shall have the following responsibilities under this Agreement:
4.1 Develop and provide to MMMC within 30 business days of the date of this
Agreement, a detailed Project Plan for the development of the Medix
System, which will, among other things, set out the functional
requirements (which shall include those described on Schedule II) of,
technical specifications for, and timetable for completion of the
development of, the Medix System, in each case to the reasonable
satisfaction of MMMC. Engage in good faith discussions with MMMC to
reach mutual agreement on the Project Plan within 30 business days of
its initial submission.
4.2 Develop and provide to MMMC within 30 business days of the date of this
Agreement, detailed Utilization and Deployment Plans for the Medix
System referred to in Section 3 of this Agreement. Engage in good
faith discussions with MMMC to reach mutual agreement on the
Deployment and Utilization Plans within 30 business days of their
initial submission.
4.3 Provide an account manager to serve as the primary contact between the two
companies, and key contacts for application development and
deployment, as reasonably acceptable to MMMC.
4.4 Design and develop capabilities in the Medix System in accordance with
Schedule II and so that the Medix System has the capability to send
and receive the Messages as described in Schedule II, and in addition:
4.4.1 Include in the Medix System reasonable security measures enabling
prescribers to ensure that only authorized users have access to
the Medix System.
4.4.2 Utilize the standards for transmission of the Messages as defined in
Schedule II.
4.4.3 Utilize MMMC approved methods of encryption for data transmission and
storage where MMMC reasonably believes encryption is desirable.
4.3.4 Meet all legal and regulatory requirements, and all
requirements reasonably imposed by users of the Medix System
related to their compliance with legal and regulatory
requirements governing their use of the Medix System with
regard to the exchange of Messages, including but not limited
to, the transmission of confidential patient data and
electronic prescriptions, security, privacy and transaction
formats.
4.5 During development, integration testing and user acceptance testing, for
the functionality defined in Schedule II, provide a dedicated project
manager reasonably acceptable to MMMC who will develop and maintain
the Project Plan and deliver bi-weekly updates to MMMC.
4.6 Develop, document and test a comprehensive business recovery plan to
safeguard the Medix System in the event of a disaster which may cause
the Medix System to become unavailable for longer than eight business
hours, including contingency planning for telecommunications,
hardware, software, data and data center operations. Testing and
review shall occur on an annual basis.
4.7 Quality Assurance
-----------------
4.7.1 Perform internal Unit and system Testing before entering into systems
integration testing with MMMC.
4.7.2 Work with MMMC to perform systems or end-to-end integration testing between
the Medix System and the MMMC System.
4.7.3 Provide MMMC with a walk through of the application at the conclusion of
systems integration testing showing how all functions are
fulfilled prior to beginning user acceptance testing of the
Medix System.
4.7.4 Support MMMC in the execution of user acceptance testing of the Medix
System,, including but not limited to the provision of release
notes detailing the changes.
4.7.5 Allow MMMC access to the Medix System to conduct overall user acceptance
testing of the Medix System.
4.7.6 Provide advanced notice of system enhancements or new product versions, as
mutually agreed between the Parties.
4.7.7 Withhold production release of Medix System until MMMC certification of
functionality and capabilities effecting MMMC Prescribers.
4.8 For each new software version that incorporates requirements defined in
writing by MMMC, design, develop and/or update i) technical
specification, ii) design specification and iii) Project Plan and
submit to MMMC for sign-off within a mutually defined timeframe.
4.9 Market, sell, contract with and provide on-site customer and utilization
support to prescribers, including but not limited to MMMC
Participating Prescribers, for use of the Medix System in accordance
with the Deployment Plan and the Utilization Plan agreed upon as
provided in Section 3, including:
a) Market, sell and contract with prescribers.
b) Installation and training.
c) Ensure prescribers have appropriate systems and
telecommunications links to the Medix System.
d) Make prescribers and their designated staff aware of the
functions of the Medix System and the availability of the
services provided by the MMMC System via the Medix System.
e) Provide customer service and utilization support
post-installation to ensure optimal customer experience, to
maximize utilization and monitor potential barriers to
utilization.
f) Work with MMMC to develop mutually agreed deployment and
utilization targets.
4.10 Obtain MMMC prior review and approval to the terms of Medix's contracts for
the use of the Medix System (including any amendments thereto) that
effect this Agreement or data related to or transmitted to or from
prescribers in the course of their prescribing interaction with MMMC
Eligibles, such approval of MMMC not to be unreasonably withheld.
4.11 Provide the following on-going services:
4.11.1 Medix shall use reasonable efforts to ensure that the Medix System is
available at all times, except for reasonable periods of time
for maintenance, and if the Medix System becomes unavailable
for a period in excess of two (2) hours, Medix will promptly
notify MMMC of the outage. Medix will provide a report on a
monthly basis of the availability of the Medix System during
normal business hours.
4.11.2 Seven (7) days per week by 24 hour per day monitoring of the Medix
System for availability and a 2-hour response time to
acknowledge if the Medix System becomes unavailable.
Additionally, an incident report will be generated and provided
to MMMC to document the outage cause, remedy and responsible
parties.
4.11.3 Make available a test environment for the ongoing testing of the
Medix System. This test environment will be made available to
MMMC prior to systems integration testing and will remain
available during the term of the Agreement.
4.11.4 Send and/or receive all Messages, as defined in Schedule II, either
from MMMC, prescriber offices or pharmacies relating to MMMC
Eligibles.
4.11.5 Be the first point of contact for prescribers using the Medix System
that require assistance or have questions regarding the usage
of the Medix System.
4.11.6 Implement a set of processes governing problem management, change
management and performance management for the Medix System.
4.12 Promptly notify MMMC immediately after entering into any agreement or
other arrangement with any third party pharmacy benefit management
company or managed care organization relating to the Medix System or
any similar systems.
4.13 Promptly notify MMMC concerning the development of new prescription and
non-prescription applications and functionalities for the Medix
System or other systems.
4.14 The content of all messages concerning PBM Services (#) transmitted and
displayed by the Medix System to prescribers who are in the process
of treating MMMC Eligibles must be provided by or approved by MMMC.
The format of messages concerning PBM Services described above must
be mutually agreed by the Parties to provide consistent
"look-and-feel" for the Medix System.
4.15 Medix will comply with the Reporting Requirements outlined in the Point of
Care Implementation Guide sent under separate cover.
4.16 Medix agrees to work jointly with MMMC to maximize Participating Prescriber
adoption by facilitating a consistent "look and feel" for
participating PBM's, minimizing the number of "clicks" necessary to
route a script to retail or mail order, and minimizing response time
for information back to the user.
5. MMMC RESPONSIBILITIES
MMMC shall have the following responsibilities under this Agreement:
5.1 Engage in good faith discussions with Medix to reach mutual agreement on
the Project Plan, Utilization Plan, and Deployment Plan within 45
days of their initial submission.
5.2 Provide lists of high-volume MMMC prescribers and practices and invitations
to participate in appropriate joint marketing programs.
5.3 Provide key contacts for business, product development, testing,
deployment, support and utilization services.
5.3.1 Provide a dedicated project manager reasonably acceptable to Medix as a
single focal point for Project Management activities within
MMMC and to provide bi-weekly updates to the Medix project
manager for MMMC tasks.
5.4 Cooperate with Medix in the development of the Medix System deployment,
training and support plans.
5.5 Assist Medix in the development of the Medix System through detailed
discussions of MMMC requirements, reviews and approvals, as MMMC
determines is appropriate, of all Messages (including text and
format) presented to prescribers for MMMC Eligibles.
5.6 Design and operate the MMMC System so that it includes the capability to
provide the functions as described in Schedule II and in addition:
5.6.1 Utilizes the standards for transmission of the Message as defined in
Schedule II.
5.6.2 Meet all legal and regulatory requirements.
5.6.3 Receive and verify prescriber enrollment records, as well as changes, sent
in a mutually agreed upon format by Medix.
5.6.4 Distribute in an agreed upon format, manner and frequency MMMC Formularies
and related files by Plan, Carrier Name and Number File and
Group Extract File.
5.6.5 Receive electronic prescriptions including medical condition information,
if available, and information regarding any alerts the
prescriber chooses to override.
5.6.6 Receive and transmit all query responses back to the Medix gateway system
within a reasonable time period for acceptable use and
transmission to the point of care.
5.7 Quality Assurance
-----------------
5.7.1 Work with Medix to perform systems integration testing between the MMMC
System and the Medix System.
5.7.2 Perform user acceptance testing of product functionality and content that
is presented to MMMC Prescribers.
5.8 MMMC shall use reasonable efforts to ensure that the MMMC System is
available at all times, except for reasonable periods of time for
maintenance. Provide a 2-hour response time to acknowledge if the
MMMC System becomes unavailable.
5.9 Promptly send and/or receive all Messages, either from the Medix System,
physician offices or pharmacies.
5.10 MMMC agrees to work jointly with Medix to maximize Participating Prescriber
adoption by facilitating a consistent "look and feel" for
participating PBM's, minimizing the number of "clicks" necessary to
route a script to retail or mail order, and minimizing response time
for information back to the user.
6. FEES AND PAYMENT
The Fees and Payments applicable to this Agreement are set forth on
Schedule III. Except as expressly provided in Schedule III, each party
shall be solely responsible for any and all costs and expenses incurred by
such party in its performance of its obligations under this Agreement.
7. CONFIDENTIALITY
7.1 Medix agrees that all MMMC Confidential Information (as defined below)
received by Medix or to which Medix is granted access hereunder (i)
will be held by Medix in strictest confidence at all times, (ii) will
not be disclosed or divulged by Medix to any person or entity, except
(A) those of its employees and its consultants and agents who are
subject to confidentiality agreements who require access to the MMMC
Confidential Information in order to perform the services
contemplated hereunder, and only after those employees have been
instructed that the MMMC Confidential Information is subject to the
confidentiality and non-use obligations set forth herein, (B) Medix
customers and their authorized end users of Medix, who shall be
subject to confidentiality non-use obligations substantially similar
to those contained herein, or (C) as may in the opinion of Medix's
counsel, after making a good faith attempt to discuss any proposed
disclosure with counsel for MMMC, be required by law or regulation,
(iii) will not be used by Medix to create, amend or add to any
compilation or database maintained by Medix for itself, except to the
extent required to perform under this Agreement, or for any other
person other than MMMC and (iv) will not be used by Medix for any
purpose other than the performance of its obligations under this
Agreement. Upon termination of this Agreement, Medix will forthwith
but in no case more than seven (7) business days, deliver to MMMC all
MMMC Confidential Information without retaining any copies thereof,
and will continue to be bound by the terms and conditions of this
Agreement. "MMMC Confidential Information" shall mean any
information (whether oral, written, visual or fixed in any tangible
or intangible (including, without limitation, electronic) medium of
expression and whether in coded or uncoded format):
(1) which is provided by MMMC (including its affiliated pharmacies) for or in
connection with dissemination of such information through the
Medix System, including, without limitation, (a) information
relating to benefit plans and plan designs (including
formularies, co-pay and other information) maintained by MMMC,
(b) information which relates to employees of MMMC, benefit
plan members, prescribers or clients, including, without
limitation, their respective names, addresses, zip codes,
social security numbers, drug or medical claims history data,
prescribing information, or other personal data, and (c) all
information derived or compiled from any of the foregoing,
including, without limitation, aggregated data or analyses;
(2) which consists of or is included in any Messages or other information
effected through the Medix System between and among MMMC and
participating prescribers, including all information derived or
compiled from any of the foregoing, including, without
limitation, aggregated data or analyses; and
(3) without limiting the generality of the foregoing, which relates to MMMC's
and its affiliates' services, operations, systems, programs,
intentions, techniques, suppliers, customers and prospective
customers, contractors, cost and pricing data, trade secrets,
know-how, processes, plans, designs, and any other information
of or relating to MMMC and its affiliates, including their
therapeutic and disease management programs, and all data,
results and analyses resulting from Medix's performance of this
Agreement.
(4) MMMC will not unreasonably withhold approval for Medix to use the
Confidential Information to provide:
- Ongoing security audits to ensure compliance with all regulatory and
customer requirements;
- Regular sponsor and physician-office customer support;
- Continuous product development to meet the needs of payors and physicians
- Analysis demonstrating the effectiveness of the Medix System to physicians
and payors in support of their adoption and utilization of
the Medix System
(5) MMMC confidential information can only be utilized with the approval of
MMMC. If Medix has revenue-generating opportunities to utilize
Confidential Information obtained through the Medix System, it
will disclose those opportunities to MMMC. MMMC and Medix
agree to explore and negotiate in good faith these
opportunities and attempt to reach agreement on appropriate
financial compensation within the time frame of this Agreement.
7.2 MMMC agrees that all Medix Confidential Information (as defined below)
received by MMMC or to which MMMC is granted access hereunder (i)
will be held by MMMC in strictest confidence at all times, (ii) will
not be disclosed or divulged by MMMC to any person or entity, except
(A) those of its employees, plan sponsors, consultants and agents who
are subject to confidentiality agreements who require access to the
Medix Confidential Information in order to engage in the MMMC
activities contemplated hereby, or (B) as may in the opinion of
MMMC's counsel, after making a good faith attempt to discuss any
proposed disclosure with counsel for Medix, be required by law, and
(iii) will not be used by MMMC for any purpose not previously
authorized in writing by Medix. Upon termination of this Agreement,
MMMC will immediately, not to exceed seven (7) business days, deliver
to Medix all Medix Confidential Information without retaining any
copies thereof, and will continue to be bound by the terms and
conditions of this Agreement. "Medix Confidential Information" shall
mean any information (whether oral, written, visual or fixed in any
tangible or intangible (including, without limitation, electronic)
medium of expression and whether in coded or uncoded format) which
relates to customers and prospective customers, contractors, cost and
pricing data, trade secrets, know how, processes, plans, designs, and
other information of or relating to Medix.
7.3 Confidential Information shall not include (i) any information which is or
becomes available to the public other than as a result of wrongful
disclosure by the party to which it was disclosed, (ii) information
which is independently developed by the party to which it was
disclosed, (iii) information which was known by the party to which it
was disclosed prior to the disclosure of such information to such
party, and (iv) information disclosed to a party by a person (other
than a party hereto or an affiliate of such party) that was not known
by the party to which it was disclosed to be in breach of any
obligation of confidentiality to the other party hereto with respect
to the information that was disclosed.
8. INTELLECTUAL PROPERTY
8.1 MMMC shall continue to own all right, title and interest in and to
the MMMC System, the MMMC Confidential Information and any other
Intellectual Property or other information provided by MMMC to Medix
pursuant to or in connection with this Agreement (including, but not
limited to, Message formats, presentation, transaction flows and
protocols). It is acknowledged and agreed that MMMC may provide certain
MMMC Intellectual Property to Medix to facilitate Medix's development and
enhancement of the Medix System. MMMC grants to Medix, for the term of
this Agreement, a non-exclusive and non-transferable license to use such
Intellectual Property solely in accordance with this Agreement.
8.2 Medix shall own all right, title and interest in and to the Medix
Confidential Information and the Medix System, including any Intellectual
Property embodied in the Medix System, subject to Section 8.1. The
foregoing shall in no event apply to the contents of any Messages
transmitted via the Medix System.
8.3 Any Intellectual Property which is jointly developed by the Parties
pursuant to this Agreement (including, but not limited to, Message formats,
presentation, transaction flows and protocols) shall be jointly owned by
the Parties and may be used by either party without restriction, except as
otherwise provided in this Agreement. Any such jointly developed
intellectual property will be subject to a prior written agreement before
development efforts are completed.
8.4 Disclosure by MMMC to Medix or by Medix to MMMC of any Intellectual
Property or Confidential Information shall not be deemed a waiver of any of
the disclosing party's rights in any of its Intellectual Property or
Confidential Information. Neither party shall be permitted to use any of
the other party's or its affiliates' trademarks or trade names (whether or
not registered or registerable) and all Intellectual Property of a party
shall remain the sole and exclusive property of that party which may be
used by the other party only in accordance with the terms of this
Agreement, provided that MMMC shall have the right, in connection with
MMMC's marketing of the Medix System to Plan Sponsors and prescribers, to
disclose the name of Medix and a description of the Medix System.
8.5 Each party shall take such actions as are reasonably requested by the
other party to protect and perfect such party's rights under this Section 8.
9. TERMINATION
The term of this Agreement will commence on the date of this Agreement and
will continue in effect through the fifth (5th) anniversary of that date.
Upon the written election of the Parties provided on or before the fifth
anniversary of this Agreement, this Agreement shall automatically renew
thereafter for an additional term of five (5) years. This Agreement may be
terminated at any time:
(i) by mutual written agreement between MMMC and Medix;
(ii) by MMMC upon written notice to Medix if Medix fails to complete the
development of the Medix System having the functionalities specified
in Schedule II to the reasonable satisfaction of MMMC on or before
the final milestone date (or any adjustments thereto) in the mutually
agreed Project Plan, provided that at least thirty (30) days prior to
providing such notice MMMC provided written notice of such failure to
Medix and such failure shall not have been cured within such thirty
(30) day period;
(iii) by either party for material breach of this Agreement by the other party
upon written notice to the other party, provided that at least sixty
(60) days prior to providing such notice, such party provided written
notice of breach to the other party and such breach shall not have
been cured within such sixty (60) day period; or
(iv) by MMMC following any transaction or series of transactions as a result of
which a third party obtains a majority of the equity or voting
control of Medix. Assignment of this Agreement after a change of
control of Medix will not be unreasonably withheld but will be at the
sole discretion of MMMC.
10. INDEMNIFICATION/INSURANCE
10.1 Medix shall, at its sole cost and expense, indemnify, defend and hold
harmless MMMC and its affiliates and their respective directors,
officers, employees and agents from and against any and all claims,
liabilities, damages, actions, demands, costs and expenses, including
reasonable attorneys' fees, that such parties may suffer which arise
out of result from (i) any breach of any of the covenants,
representations and warranties of Medix in this Agreement, (ii)
Medix's (including its employees' and agents') negligence or willful
misconduct in performance of this agreement or (iii) any claims that
the use by MMMC and/or participating prescribers of Medix System
violates the patent, copyright or other Intellectual property rights
of any third party.
10.2 MMMC shall, at its sole cost and expense, indemnify, defend and hold
harmless Medix and its affiliates and their respective directors,
officers, employees and agents from and against any and all claims,
liabilities, damages, actions, demands, costs and expenses, including
reasonable attorneys' fees, that such parties may suffer which arise
out of result from (i) any breach of any of the covenants,
representations or warranties of MMMC in this Agreement, (ii) MMMC's
(including its employees' and agents') negligence or willful
misconduct in performance of this agreement, or (iii) any claims that
the use by Medix of the MMMC System violates the patent, copyright or
other Intellectual property rights of any third party.
10.3 MMMC and Medix shall each maintain insurance coverage reasonably acceptable
to the other party in respect to the operation of its business and
performance of obligations pursuant to this Agreement. Evidence of
such insurance coverage shall be provided to the other party upon
request.
11. ADDITIONAL COVENANTS
11.1 During the term of the Agreement and for a period of two (2) years
thereafter, Medix will not provide any PBM Services to any MMMC Plan
Sponsor, or utilize the Medix System to facilitate physician
connectivity in respect to the provision of PBM Services to any MMMC
Plan Sponsor other than in conjunction with MMMC. The exception to
this requirement is the case in which a current MMMC Plan Sponsor
chooses a PBM other than MMMC or chooses to administer PBM services
itself, in which case Medix may provide its services in conjunction
with the alternative PBM provider. If during the term of this
Agreement, Medix markets or sells its services to corporations,
associations, insurance carriers, HMO's, governmental bodies or other
entities (in each case, other than MMMC Plan Sponsors), Medix agrees
that it shall provide MMMC with a reasonable opportunity, on an equal
basis with other participating PBM's, to negotiate appropriate terms
and conditions for MMMC's provision of such services jointly with
Medix.
11.2 MMMC acknowledges and agrees that Medix shall be free to make available the
Medix System (including all enhancements thereto developed pursuant
to this Agreement) to competitors of MMMC, including third parties
which provide PBM Services.
11.3 During the term of this Agreement, Medix will make available to MMMC and
MMMC prescribers full access to and use of the Medix System,
including all functionalities thereof and upgrades as it pertains to
the functionality outlined in Schedule II. Medix further agrees
that, during the term of this Agreement, #.
11.4 During the Term of this Agreement, Medix agrees to periodically (not less
frequently than annually, or at the written request of MMMC) review
the technology included or incorporated in the Medix System and
provide upgrades to such technology as reasonably necessary to ensure
that the technology included or incorporated in the Medix System
remains technologically advanced.
11.5 Except as provided in this Section 11, this Agreement shall not create any
obligation of exclusivity on the part of MMMC or Medix.
12. GENERAL
12.1 Any notice required or permitted under this Agreement shall be in writing
and shall be sent by hand delivery, telegram, telex, telecopy, or
courier service to the other party at the address set forth below (or
such other address specified by the other party in writing), and
shall be effective upon receipt:
If to MMMC:
Merck-Medco Managed Care, L.L.C.
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax No. (000) 000-0000
If to Medix:
Medix Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx
Fax No. (000) 000-0000
12.2 Each party is and shall be solely an independent contractor in its
performance of this Agreement and neither is authorized to or shall
represent that it is authorized to make any agreement, representation
or warranty, or to incur and liability on behalf of the other except
as may be specifically authorized in writing by the other party.
12.3 This Agreement shall inure to the benefit of and be binding on the Parties'
successors and assigns; provided that Medix shall not assign this
Agreement, or any of its rights or obligations pursuant to this
Agreement, or subcontract any obligations or services provided under
this Agreement, to any other entity without the prior written consent
of MMMC.
12.4 This Agreement shall be construed in accordance with and governed for all
purposes by the laws of the State of New Jersey, without regard to
principles of conflicts of law thereof.
12.5 This Agreement contains the entire understanding of the Parties as to the
subject matter hereof and fully supersedes all prior understandings,
written or oral, between the Parties regarding such subject matter.
This Agreement may not be amended except by a written instrument
executed by the Parties and shall be binding upon MMMC and Medix and
their successors and permitted assigns. The invalidity or
unenforceability of any of the terms or conditions hereof shall not
affect the validity or enforceability of any other term or condition.
12.6 Neither party shall issue any press release or other public statement
concerning this Agreement or the transactions contemplated hereby
without the prior written consent of the other party, which shall not
be unreasonably withheld, except as required by applicable law.
12.7 Upon reasonable notice and during normal business hours, MMMC shall have
the right to inspect and audit the books and records of Medix
relevant specifically to MMMC transactions for purposes of verifying
the charges assessed under this Agreement and Medix's compliance with
the terms of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first set forth above.
MERCK-MEDCO MANAGED Medix Resources Inc.
CARE, L.L.C.
By: /s/Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Senior Vice President Title: President
Date: October 18, 2001 Date: October 16, 2001
SCHEDULE I
SUMMARY: FUNCTIONALITIES OF Medix SYSTEM AS OF EFFECTIVE DATE
# (1 page)
SCHEDULE II
PROPOSED FUNCTIONALITIES OF Medix SYSTEM
Medix shall develop the Medix System so that it can send and receive
Messages as described below. The Project Plan will outline milestones and
time schedules for implementation of this functionality in the Medix System.
# (2 pages)
SCHEDULE III
FEES AND PAYMENTS
Promptly following the Parties' execution of this Agreement, the Parties shall
negotiate in good faith incremental functionality for the Medix System as
determined in the Project Plan. Definitions for associated transaction types
will be agreed. Medix shall invoice MMMC on a monthly basis for the fees set
forth below in this Schedule III. MMMC shall pay all invoices (other than
amounts reasonably and in good faith disputed by MMMC, which the Parties shall
use their best efforts to resolve as promptly as practicable) within thirty (30)
days of the date thereof. Transaction fees will be based on transaction type and
count as reported by Medix to MMMC in accordance with the most current version
"Point of Care Implementation Guide - Reporting Requirements" sent under separate
cover. Medix must comply with formats described in the Implementation Guide or
any other reasonable adjustment thereto in order to receive payment from MMMC.
MMMC will pay Medix for each prescription (retail or mail) that is entered by a
prescriber into the Medix System for an MMMC Eligible.
(a) #
------
(b) Fees will be based on actual functionality used to transmit the transaction.
------
(c) MMMC will pay an additional $# per prescription (Column B - "Surcharge")
------
for each prescription, provided that Medix has entered into a mutually
agreed Project Attachment to the Agreement, and is making certified
progress on a monthly basis toward increasingly automated transaction
types.
(d) There will be maximum cumulative Surcharge (D - "Surcharge Cap") associated
------
with each Development Phase in the Project Attachment. Once the Surcharge
Cap is reached, MMMC will no longer pay Medix the Surcharge unless it is
making certified progress on additional milestones. Transaction fees will
continue to be paid, as defined below, even if the Surcharge Cap has been
reached. Total Surcharges will not exceed $#.
(e) There will be a mutually agreed upon timeframe in which that Development
------
Phase must be achieved (E - "Timeframe.") If Medix misses any milestone
or is not certified for making progress toward the next milestone, MMMC
may cease payment of surcharge. All development must be completed within #
months from the date of contract execution.
(f) Once the maximum total surcharge cap has been reached ($#) the base
------
Transaction Fee will continue to be paid for the shorter of (a) a period #
or (b) the initial term of this contract or a maximum $# paid in base
Transaction Fees. At that point, both parties agree to negotiate in good
faith ongoing transaction pricing.
(g) Promptly following each anniversary of the date of this Agreement, the
------
parties shall determine # by the Participating Physician to MMMC in
accordance with Schedule III to the Agreement #, to negotiate in good
faith appropriate modifications to this Schedule III. If the parties fail
to agree upon such modifications within sixty (60) days following a
party's written request for negotiations, then MMMC may terminate this
Agreement upon a further thirty (30) days prior written notice to Medix.
(h) A prescription shall be considered a single transaction that is eligible
------
for a Transaction Fee under any of the following instances, without
duplication: #
(i) MM shall prepay $# of Transaction Fees at the acceptance of the initial
------
Project Plan and when each of Development Stages One, Two, Three, and Four
are certified complete ("Prepayments"). These Prepayments shall be
credited cumulatively against total Transaction Fees and Surcharges
payable by MM under this Agreement. Total Prepayments shall not exceed $#.
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Development Stage A B C D E
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Trans Surcharge Total Surcharge Timeframe
Fee (A+B) Cap (TBD in
Project
Plan)
----------------------------------------------------------------------------
1. Patient Profile; # $.# $# $0# $# #
----------------------------------------------------------------------------
2. Formulary Display $# $# $# $# #
w/alternatives
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3. Non-fax New Rx, Current $# $# $# $# #
Patient Profile
----------------------------------------------------------------------------
4. # $# $# $# $# #
----------------------------------------------------------------------------
5. # $# $# $# $# #
----------------------------------------------------------------------------
Total $#
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