1
Exhibit 10.22
JOINT MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT (the "Agreement") is made by and between
Healtheon/WebMD Corporation (hereinafter "Healtheon"), a corporation organized
and existing under the laws of Delaware and having a business address of 4600
Patrick Henry Drive, Santa Clara, California 95054, and Quality Care Solutions,
Inc. (hereinafter "Company"), a corporation organized and existing under the
laws of Nevada and having a business address of 5030 East Sunrise Drive,
Phoenix, Arizona 85044. Healtheon and Company are the parties to this Agreement.
BACKGROUND
A. Healtheon is an Internet-based services company providing
connectivity and information management services, including the Healtheon
Services, to participants in the healthcare industry.
B. Company markets and licenses healthcare management software,
including the Company Products, to businesses and organizations participating in
the healthcare industry.
C. Company and Healtheon perceive that the Company Products and the
Healtheon Services are complementary and that customers would benefit from an
Internet-based solution based on the combined use thereof. Company desires to
present such an Internet-based solution to its present and future customers as a
possible application of its Company Products. Healtheon desires the opportunity
to provide the Healtheon Services to such present and future customers of the
Company and to introduce the Company Products to certain of its present and
future customers.
AGREEMENT
Now therefore, in consideration of the foregoing, and the mutual
promises contained herein, the adequacy and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE 1. MARKETING AND SALES.
1.1 Marketing Coordinators. Each of the parties will appoint a
Marketing Coordinator under this Agreement. Healtheon's initial Marketing
Coordinator will be the Channel Executive. Company's initial Marketing
Coordinator will be [****] . From time to time during the term of this
Agreement, each party may replace its Marketing Coordinator with another person
having equivalent authority by providing written notice to the other party.
[****] - Confidential Treatment Requested
2
1.2 Identification of Prospects.
1.2.1 Each party will be responsible for identifying by Notice parties
that it believes are candidates for using the Healtheon Services in combination
with the Company Products (the "Prospects"). Prospects may include existing or
potential customers of either party.
1.2.2. The party identifying the Prospect shall give Notice to the
other party of the nature of the potential opportunity to offer that Prospect a
combination of Healtheon Services and Company Products. The parties will confer
in good faith to develop a proposal for delivery of services and products to the
Prospect. If the parties mutually determine to pursue the opportunity for the
joint delivery of Healtheon Services and Company Products to the Prospect, they
will jointly determine the appropriate contractual structure for the delivery of
the services and products. In conjunction with any contract to be entered into
with the Prospect ("Customer Contract"), Healtheon and the Company shall enter
into an agreement governing such matters as they then deem relevant, including
their respective responsibilities to develop, provide and maintain the services
and products and their respective shares of any revenue to be received from the
Customer ("Customer Support and Payment Contract"). The party identifying the
Prospect shall be responsible for initiating and managing the process of
developing and documenting the Customer Contract and Customer Support and
Payment Contract and shall consult throughout that process with the other party.
1.2.3 In the event that the parties determine not to jointly offer
services and products to a Prospect, the party identifying the Prospect shall be
free to separately contract with and deliver services or products to the
Prospect (either alone or in concert with third parties) and the other party
shall refrain from offering a competing product or service without the written
consent of the party who gave Notice initially identifying the Prospect for a
period of twelve (12) months measured from the effective date of such Notice.
1.2.4 Either party shall be free to separately contract or otherwise
transact business with any prospective customer not identified as a Prospect
pursuant to this Agreement.
1.3 Development of a Marketing Plan. Within thirty (30) days of the Effective
Date, the Marketing Coordinators will participate in a meeting (the "Initial
Meeting") for the purpose developing a "Joint Marketing Plan", which shall
include, but not be limited to: (i) prioritizing the then known Prospects to
determine the best candidates (the "Candidates") to use the parties' products
and services; and (ii) a determination of how to best approach, negotiate with,
and close with each Candidate. Thereafter, the Marketing Coordinators shall meet
no less than once per quarter to update the Joint Marketing Plan. Company and
Healtheon will also develop quarterly and annual sales targets. Both parties and
the Marketing Coordinators will exercise all reasonable efforts to minimize
expenses associated with the Joint Marketing Plan including, but not limited to,
meeting
Page 2
3
via telephone, personal computer conferencing, exchanging documents
electronically, using e-mail or fax machines and the like.
1.4 Marketing Responsibilities of the Parties. Each party will be responsible
for the following duties, in addition to other duties that may be specified
herein:
1.4.1 Training. Each party will train the other party's sales
representatives in the operation and benefits of the training party's services
or products. The training sessions will be conducted at such time or times, and
at such place or places, as the parties may agree from time to time. Each party
will bear its own costs for any travel, lodging, meals and similar costs of its
personnel incurred in connection with any training sessions.
1.4.2 Marketing Materials. Each party, at its own expense, shall
provide to the other party, a reasonable number of copies of appropriate sales
or marketing documentation or forms or other marketing materials, including,
without limitation, demonstration materials (the "Marketing Materials") for its
services. Neither party will add to, delete from or modify any Marketing
Materials provided by the other party except with the other party's prior
written consent. Each party, as grantor, hereby grants to the other party, as
grantee, a nonexclusive, nontransferable license to (a) reproduce grantor's
Marketing Materials (but not including any software provided by grantor to
grantee hereunder, such as demonstration software, or any user documentation
provided along with such software) and (b) use grantor's Marketing Materials:
(i) to promote the grantor's products and services hereunder and (ii) to
demonstrate such products and services (in the case of computer programs, in
object code form only and, in the case of documentation, limited to end user
documentation) solely to bona fide Prospects and solely to the extent necessary
to fulfill the purposes of this Agreement.
1.4.3 Updates. Each party shall inform the other within a reasonable
time of any changes in that party's products, services, pricing or Marketing
Materials.
1.4.4 Marketing Effort. Each party shall use its reasonable efforts to
promote the Healtheon Services and Company Products to Prospects. Each party
shall employ sufficient qualified employees and agents to assist in diligently
performing all of its duties as mutually agreed upon herein and shall take
advantage of technical training programs offered by the other party for such
persons. Each party shall comply with good business practices and all applicable
laws and regulations.
1.4.5 Communication. Each party shall use reasonable efforts to keep
the other informed as to any problems encountered with the other party's
services or products and as to any resolutions to those problems, and shall
communicate promptly to the other any and all modifications, design changes or
improvements of the other party's services or products suggested by any entity
or person solicited by or making inquiries regarding such services or products.
Each party further agrees that during the term of this Agreement and thereafter
the other party shall be free to use such suggested modifications, design
changes, or improvements.
Page 3
4
1.5 Trademarks. Each party owns all worldwide right, title, and interest in and
to its Marks, and the other party will acquire no rights in such Marks. Except
as specifically authorized by this Agreement or a Customer Agreement, neither
party shall use or register (or make any filing with respect to) any trademark,
name or other designation of the other party anywhere in the world. Neither
party will contest anywhere in the world the use by, or authorized by, the other
of a Mark owned or registered by the other party, or application or registration
therefor, whether during or after the term of this Agreement.
1.6 Advertising and Publicity. Neither party shall identify, either expressly or
by implication, this relationship, the other party or the other party's
corporate affiliates or use any of such parties' Marks in any advertising, press
releases, publicity matters or other promotional materials without the other
party's prior written approval.
1.7 Agreement Not Exclusive. Except as set forth in Section 1.2.3, nothing in
this Agreement shall be construed as limiting in any manner either party's
marketing or distribution activities or its appointment of dealers,
distributors, licensees, agents or representatives of any kind.
ARTICLE 2. CONFIDENTIALITY
2.1 Confidentiality Obligations. In the course of performing under this
Agreement, each party may receive, be exposed to, or acquire Confidential
Information of the other party. Each party shall protect the Confidential
Information of the other party by using at least the same degree of care it uses
to protect its own Confidential Information of similar importance or
sensitivity, but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination or application of such Confidential Information.
The parties shall not disclose the Confidential Information of the other party
except to its employees and agents who have a need to know for purposes of this
Agreement. Each party shall cause its employees and agents receiving the other
party's Confidential Information to execute written nondisclosure agreements
that provide the same or greater protection for such information as this Section
2.1 provides. Notwithstanding anything to the contrary herein, but subject to
the patent and copyright rights of the other party and the obligation of
confidentiality under this Section 2.1, each party may use and exploit for any
purpose any programming techniques and ideas and concepts of general application
related to internet or computer technology learned by its employees as a result
of their exposure to the Confidential Information of the other party and
retained in the unaided memory of such employees. An employee's memory is
unaided if the employee has not intentionally memorized the Confidential
Information for the purpose of retaining and subsequently using or disclosing
it.
2.2 Additional Restrictions. Each party agrees, as a condition of the rights
granted under this Agreement and except as otherwise expressly and unambiguously
authorized hereunder: (i) except to the extent this prohibition is expressly
disallowed under applicable law, not to create or attempt to create, by reverse
engineering or otherwise, the source code or internal structure of the software
products of the other party or any part
Page 4
5
thereof from the object code or from the information made available to it; (ii)
not to remove, obscure, or deface any proprietary or confidentiality legends
relating to the other party's rights, on or from any electronic or tangible
embodiment of any Confidential Information, without such other party's prior
written consent; (iii) not to list or otherwise display or copy the object code
of any software product of the other party; and (iv) not to copy the software
products of the other party, develop any derivative works thereof or include any
portion thereof in any other software program; and (v) prior to disposing of any
materials, to destroy completely any Confidential Information contained therein.
2.3 Disclosure Required to Court or Government. If a party is required to
disclose Confidential Information of a the other party pursuant to court order
or government authority, that party shall provide reasonable notice where
feasible to such other party prior to such disclosure and shall cooperate with
such other party to obtain protection from such disclosure.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
3.1 Due Organization. Each party represents and warrants to the other party that
it is duly organized, validly existing, and in good standing under the laws of
the jurisdiction in which it is organized, it has the full power to enter into
this Agreement and to perform its obligations hereunder, and that the
performance by it of its obligations under this Agreement have been duly
authorized by all necessary corporate or other actions and will not violate any
provision of any corporate charter or bylaws.
3.2 No Conflicts. Each party represents and warrants to the other party that
neither the execution of this Agreement nor its performance hereunder, will
directly or indirectly violate or interfere with the terms of another agreement
to which it is a party, or give any governmental entity the right to suspend,
terminate, or modify any of its governmental authorizations or assets required
for its performance hereunder. Each party represents and warrants to the other
party that it will not enter into any agreement the execution and/or performance
of which would violate or interfere with this Agreement.
3.3 No Bankruptcy. Each party represents and warrants to the other party that
the party is not currently the subject of a voluntary or involuntary petition in
bankruptcy, does not currently contemplate filing any such voluntary petition,
and is not aware of any claim for the filing of an involuntary petition.
3.4 Exclusions; Disclaimers. THE WARRANTIES STATED ABOVE IN THIS ARTICLE 3 ARE
THE ONLY WARRANTIES MADE BY EITHER PARTY. ALL INFORMATION PROVIDED BY A PARTY TO
THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, MARKETING MATERIALS, ARE
PROVIDED ON AN "AS IS" BASIS. THE PARTIES DO NOT MAKE AND HEREBY DISCLAIM ALL
OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY
OPERATION OF LAW), INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OR CONDITIONS
OF MERCHANTABILITY OR FITNESS FOR A
Page 5
6
PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING OR
CUSTOM OF TRADE, AND ALL WARRANTIES OF TITLE AND NON-INFRINGEMENT.
ARTICLE 4. EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY
4.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY, OR ANY THIRD PARTY, UNDER ANY THEORY OF LIABILITY, HOWEVER
ARISING, FOR ANY COSTS OF COVER OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF USE, INTERRUPTION OF
BUSINESS, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, AND THE LIKE)
ARISING OUT OF THIS AGREEMENT EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
4.2 Limitation of Liability. EXCEPT FOR CLAIMS ARISING OUT OF A BREACH
OF ARTICLE 2, AND SECTION 1.5, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE
LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED FIVE THOUSAND DOLLARS ($5,000).
EITHER PARTY'S AGGREGATE LIABILITY FOR ALL MATTERS ARISING OUT OF A BREACH OF
ARTICLE 2, AND SECTION 1.5 OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL NOT EXCEED FIVE MILLION DOLLARS ($5,000,000). THIS LIMITATION
OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF A PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES, OR DAMAGES, AND
SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OTHER REMEDIES
POSSESSED BY THE OTHER PARTY, ITS CUSTOMERS, OR ANY THIRD PARTIES. THIS
LIMITATION OF LIABILITY REFLECTS AN AGREED ALLOCATION OF RISK BETWEEN HEALTHEON
AND COMPANY IN VIEW OF THE NATURE OF THIS TRANSACTION.
ARTICLE 5. INDEMNIFICATION
5.1 Indemnification by the Parties. Each party (as the "Indemnifying
Party") agrees to defend, indemnify, and hold harmless the other party (as the
Indemnified Party") from any loss, damage, or expense, arising directly and
proximately out of the Indemnifying Party's breach of any term of this
Agreement, or out of the Indemnifying Party's misrepresentation, fraud, or
negligence with respect to the parties relationship or the Indemnified Party's
products or services. To be entitled to defense by the Indemnifying Party
against a third-party claim under this Section 5.1: (a) the Indemnified Party
shall notify the Indemnifying Party of the claim immediately upon learning of
the assertion of the claim against the Indemnified Party; and (b) the
Indemnifying Party shall have the
Page 6
7
sole right to control the defense and/or settlement of the claim, in litigation
or otherwise, provided that (i) the Indemnified Party shall retain the right to
participate in any such defense to the extent it deems appropriate to protect
its interest, at its own expense; and (ii) the Indemnifying Party will not enter
into a settlement on behalf of the Indemnifying Party without the Indemnified
Party's prior written approval, such approval not to be unreasonably withheld.
ARTICLE 6. TERM AND TERMINATION
6.1 Initial Term and Renewals. The term of this Agreement shall
commence on the Effective Date and, unless earlier terminated as provided
herein, shall continue for two years (the "Initial Term"). Upon expiration of
the Initial Term, the term of this Agreement shall be automatically renewed for
successive one-year periods (individually, a "Renewal Term"), unless sooner
terminated in accordance with the provisions herein. Notice of non-renewal of
this Agreement after the Initial Term must be given in writing by a party to the
other party at least ninety (90) days prior to the commencement of any Renewal
Term.
6.2 Termination without Cause. Either party may terminate this
Agreement without cause upon no less than sixty (60) days prior written notice
to the other party.
6.3 Termination for Cause. Either party may terminate this Agreement
upon a material breach of the other party to perform its obligations hereunder
as follows: the terminating party shall give the other party written notice of
the basis for termination and the other party shall have sixty (60) days in
which to cure the default or make substantial progress toward curing the
default. If the default has not been cured within the 60-day period but
substantial progress toward a cure has been made, the defaulting party shall
provide the terminating party, during the 60-day period, with a detailed plan
that establishes the schedule and program for curing the default within the
succeeding 60 days. If the default is not cured within the 60-day period, or if
the defaulting party fails to make substantial progress toward a cure or to
provide a detailed plan for completion of the effort, the terminating party may
terminate the Agreement effective upon provision of written notice to the
defaulting party.
6.4 Effect of Termination.
6.4.1 No Effect on Customer Contracts. The termination of this
Agreement, whether with or without cause, shall not terminate either party's
rights or obligations under any Customer Contract or Customer Support and
Payment Contract, it being understood that such agreements shall be governed by
their own terms with respect to termination and survival or the parties'
respective payment and performance obligations thereunder.
6.4.2 Marks and Marketing Materials. Upon termination or expiration of
this Agreement, each party shall, except as authorized by a Customer Contract or
Customer
Page 7
8
Support and Payment Agreement, (i) immediately discontinue use of the other
party's Marks and Marketing Materials; (ii) immediately discontinue all
representations or statements from which it might be inferred that any marketing
relationship exists between Healtheon and the Company; (iii) will cease to
promote the services or products of the other; and (iv) refrain from acting to
damage the reputation or business interests of the other party.
6.4.3 Return of Materials. Within thirty (30) days after the expiration
or termination of this Agreement, (a) each party shall return to the other all
copies of all Marketing Materials, all tangible embodiments of the other party's
Confidential Information, and all other materials of the other party.
6.5 Survival. All rights and obligations of the parties hereunder shall
cease upon termination or expiration of this Agreement except the obligations in
Sections 1.5, 6.4, 6.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.13 and Articles 2, 3,
4, and 5 shall survive termination or expiration; together with any provisions
of this Agreement which by their terms survive expiration or termination of this
Agreement.
ARTICLE 7. MISCELLANEOUS
7.1 No Reimbursement. Unless expressly provided otherwise, in this
Agreement or in Customer Support and Payment Agreement, each party shall be
responsible for its own expenses and costs under this Agreement, and neither
party shall have any obligation to reimburse any expenses or costs incurred in
connection with the activities contemplated to this Agreement.
7.2 Force Majeure. If either party is unable to perform its obligations
under this Agreement due to circumstances beyond its reasonable control (other
than obligations for the payment of money or the maintenance of
confidentiality), including, but not limited to, acts of God, earthquakes, labor
disputes and strikes, riots, war, actions decrees of governmental bodies,
changes in applicable Laws, or communications line or power failures, such
obligations will be suspended so long as those circumstances persist, provided
that the delaying party notifies the other party promptly of the delay and its
causes and uses commercially reasonable efforts to recommence performance
without delay.
7.3 Assignment. Except as expressly permitted hereunder, neither party
shall assign, transfer, or otherwise delegate any of its rights, duties, or
obligations under this Agreement in whole or in party to any individual, firm or
corporation without the prior written consent of the other party, which consent
shall not be unreasonably withheld; except that either party may delegate any of
its rights, duties, or obligations under this Agreement to one or more of its
Subsidiaries. Any attempt to assign, transfer or otherwise delegate any of the
rights, duties, or obligations under this Agreement without the prior written
consent of the other party shall be void. Notwithstanding the foregoing, either
party may assign its rights, duties, and obligations hereunder without approval
of
Page 8
9
the other party to a party that succeeds to all or substantially all of its
assets (whether by sale, merger, operation of law or otherwise), provided that
such assignee or transferee agrees in writing to be bound by the terms and
conditions of this Agreement. Any assignment with consent does not release the
assignor from any of its obligations under the Agreement unless the consent so
states.
7.4 Independent Contractors. Nothing in this Agreement shall be
construed to create an agency, joint venture, partnership or other form of
business association between the parties. Neither party has the right or
authority to make any contract, representation, or binding promise of any nature
on behalf of the other party, whether oral or written, without the express
written consent of the other party. Each party shall be and remain solely
responsible for wages, hours, and all other conditions of employment of its own
personnel during the term of this Agreement.
7.5 No Waiver. The failure on the part of either party to exercise any
right or remedy hereunder will not operate as further waiver of such right or
remedy in the future or any other right or remedy.
7.6 Binding. This Agreement shall be binding on the parties, their
affiliated companies, subsidiaries, successors, and assigns (if any), and they
each warrant that the signatories hereto are authorized to execute this
Agreement on behalf of the respective party. This Agreement is also binding upon
the officers, directors, agents, employees, partners, and shareholders of the
parties and any other persons acting in concert with them.
7.7 Governing Law; Jurisdiction; Venue. The laws of the State of
California will govern this Agreement without reference to conflicts of law
principles. Jurisdiction and venue for all disputes relating to this Agreement
shall lie with the state and federal courts located in Santa Clara County,
California.
7.8 Headings. The headings in this Agreement are for purposes of
reference only and are not intended to affect the meaning or interpretation of
this Agreement.
7.9 Severability. If any provision in this Agreement is found to be
invalid, void, or unenforceable by a court of competent jurisdiction, the
remaining provisions will nevertheless continue in full force and effect, and if
the invalid, void or unenforceable provision is an essential part of the
Agreement, the parties shall immediately begin negotiations for its replacement.
7.10 No Bias. This Agreement shall be interpreted as written and
negotiated jointly by the parties. It shall not be strictly construed against
either party, regardless of the actual drafter of the Agreement.
7.11 Costs, Attorneys' Fees, and Experts' Fees. In the event any
obligation of this Agreement must be enforced, through litigation or otherwise,
the prevailing party will be
Page 9
10
entitled to recover reasonable costs and expenses incurred in enforcing the
obligation, including costs, reasonable attorneys' fees and experts' fees.
7.12 Counterparts. This Agreement may be executed in duplicate and
either copy or both copies are considered originals.
7.13 Notices. Any and all notices given under this Agreement shall be
in writing and may be effected by personal delivery, facsimile, commercial
overnight delivery, or mail, registered or certified, postage prepaid with
return receipt requested. Notices shall be sent to the parties at their
respective addresses set forth on the first page of this Agreement, with a copy
to such party's General Counsel or, in the case of the Company, to Bryan Cave
LLP, Two North Central Avenue, Suite 2200, Phoenix, Arizona 85004-4406,
Attention: Frank M. Placenti. Notices shall be deemed given on the date of
actual receipt (or refusal of delivery) when personally delivered, upon
confirmed transmission when sent by facsimile, one day after having been sent
when sent by commercial overnight delivery, and three days after having been
mailed when sent by certified or registered mail. Notwithstanding anything to
the contrary in this Section 10.13, any written notice will be effective no
later than the date actually received.
7.14 Adequacy of Consideration. Each party acknowledges that it enters
into this Agreement of its own accord, for and in consideration of the mutual
covenants set forth herein, and for other good and valuable consideration, the
adequacy of which is hereby acknowledged, and does not do so on the basis of,
and does not rely on, any representation, warranty or other provision except as
expressly provided herein. All conditions, warranties or other terms implied by
statute or common law are hereby excluded to the fullest extent permitted by
law.
7.15 Insurance. During the term of the Agreement, each party shall
maintain, either through external insurance coverage or internal self insurance,
such capability to bear risks associated with the performance of this Agreement
as is reasonable and prudent under the circumstances.
7.16 Publicity. The parties shall issue a public announcement and
mutually agreed upon press release regarding the parties' relationship and the
nature of this Agreement upon execution of this Agreement.
7.17 Entire Agreement. This Agreement (including any attached exhibits
which are hereby incorporated herein by reference) constitute the final and
entire agreement between the parties, and supersedes all prior written and oral
agreements, understandings, or communications with respect to the subject matter
of this Agreement (including without limitation any memorandums of
understanding, written proposals, and term sheets). This Agreement may not be
modified except in writing signed by a duly authorized representative of each
party. It is expressly understood and agreed that no employee, agent, or other
representative of Healtheon has any authority to bind Healtheon with respect to
any statement, representations, warranty, or other expression unless the same is
specifically set forth in this Agreement. It is also understood and agreed that
no
Page 10
11
usage of trade or other regular practice or method of dealing between the
parties hereto shall be used to modify, interpret, supplement, or alter in any
manner the terms of this Agreement. The parties agree that the terms and
conditions contained in this Agreement shall prevail over any terms and
conditions of any purchase order, acknowledgment form or other instrument.
7.18 No Third Party Beneficiaries. This Agreement is made and entered
into for the sole protection and benefit of the parties hereto, and no other
person or entity shall be a direct or indirect beneficiary of, or shall have any
direct or indirect cause of action or claim in connection with this Agreement.
7.19 Non-Solicitation. Neither Company nor Healtheon will, during the
initial term of this Agreement and for six (6) months thereafter, hire any
employee of the other engaged in activity directly related to this Agreement.
ARTICLE 8. GLOSSARY
8.1 "COMPANY PRODUCTS" means the products defined to be Company
Products in Exhibit B, and all updates, modifications, and improvements thereto.
8.2 "CONFIDENTIAL INFORMATION" of a party (the "Disclosing Party")
means information concerning its business, the business of its customers and
suppliers, inventions, confidential know-how, and trade secrets that is
disclosed in writing or other tangible or intangible form to the other party
(the "Receiving Party") by the Disclosing Party or a third party having an
obligation of confidence to the Disclosing Party and is designated as
proprietary or confidential by or on behalf of a Disclosing Party. Confidential
Information does not include any information that:
(a) was, as of the time of its disclosure, or thereafter becomes
part of the public domain through a source other than the
Receiving Party;
(b) the Receiving Party can demonstrate was known to the Receiving
Party as of the time of its disclosure;
(c) the Receiving Party can demonstrate was independently
developed by the Receiving Party without use of or reference
to any information, code, documentation or materials provided
by the Disclosing Party; or
(d) the Receiving Party can demonstrate was learned from a third
party not under a confidentiality obligation to the Disclosing
Party
8.3 "HEALTHEON SERVICES" means the services defined to be Healtheon
Services in Exhibit A, and all updates, modifications, and improvements thereto.
8.4 "MARKS" means trademarks, service marks, trade names, brands,
logos, and other such business identifiers.
Page 11
12
8.5 "NOTICE" means a communication to the other party in accordance
with Section 7.13.
8.6 "SUBSIDIARY" means any corporation, company or other entity with
regard to which (i) more than fifty percent (50%) of whose outstanding shares or
stock entitled to vote for the election of directors or similar managing
authority is, now or hereafter, directly or indirectly owned or controlled by a
party hereto, or (ii) which does not have outstanding shares or securities but
greater than fifty percent (50%) of whose ownership interest representing the
right to make the decisions for such entity is, now or hereafter, owned or
controlled, directly or indirectly, by a party hereto; provided, however, that
in each case such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists and exceeds fifty
percent (50%).
8.7 "Y2K COMPLIANT" means the ability of the software to calculate and
compare date data between the twentieth and twenty-first centuries (including
calendar dates for leap years), without impairment in the functioning of such
software, when used in accordance with its documentation, but only if all
associated systems necessary for the installation, operation, use and
maintenance of such software (e.g., computer hardware, computer software,
Internet connectivity, and communication systems) properly exchange date data
with such software.
[END OF TERMS AND CONDITIONS]
Page 12
13
Understood and Agreed:
FOR HEALTHEON FOR COMPANY
By: By: /s/ Robert F Theilmann
------------------------------- -------------------------------
Signature Signature
Robert F Theilmann, CFO
------------------------------- -------------------------------
Name and Title Name and Title
3/16/00
------------------------------- -------------------------------
Date Date
Page 13
14
EXHIBIT A
HEALTHEON SERVICES
HEALTHEON PRACTICE
Healtheon Co-Branded Practice is a Co-Branded, browser-based "Provider Portal"
service through which ambulatory and office-based providers communicate with
Customer to manage the business functions and clinical work of healthcare. The
service provides a browser-based view of information contained in Customer's
systems. It does this within a secure framework. It also provides the Healthcare
Provider access to external payers and labs that are connected to the Healtheon
Practice system for business and clinical transactions along with medical
reference information.
HEALTHEON ADMINISTRATIVE SERVICES
The Healtheon Administrative Service provides electronic data interchange (EDI)
to connect payers, managed care organizations, and providers to exchange
transactions and information including eligibility verification, referral
request processing, claims submission and claim status.
The Healtheon Administrative Service enables healthcare organizations to improve
medical management across a distributed provider network by providing timely
eligibility information, automating the referral and authorization process, and
processing claims electronically.
Page 14
15
EXHIBIT B
COMPANY PRODUCTS
QCSI PRODUCT OFFERINGS
QMACS(R) is a healthcare payor software application and the foundation of QCSI's
product offerings.
The QMACS product administers all lines of medical insurance or risk-based
business, including indemnity, managed care, Medicaid and Medicare. QMACS
applications integrate the business functions of premium billing, benefits
administration, referrals and authorizations, provider reimbursement, claims
adjudication and payment and reporting. QMACS facilitates payor business rules,
healthcare administration guidelines and required patient specific information,
thus improving workflow and effectively managing the care of a health plan
members.
aQDEN(TM) is a robust payor system for the dental care industry. aQDEN manages
all transaction relationships between the payor, its subscribers and the dental
providers. aQDEN is a state-of-the-art, object oriented, rules-based software
application which can manage multiple lines of business in dental care. aQDEN
applications integrate the business functions of premium billing, benefits
administration, referrals and authorizations, provider reimbursement, claims
adjudication and payment and reporting for dental payors.
aQHealth is an Internet-based offering which enables real-time healthcare
transactions to be completed using the Internet communication conduit by
combining QMACS and aQDEN software products. aQHealth is tailored to
specifically address the requirements of individual users including healthcare
professionals and their administration staff. Through aQHealth, payors can
enable providers secure access to a sponsoring payor's healthcare administration
information and proprietary business processes, giving them the ability to
rapidly view and transact via the Internet: enrollment, eligibility
verification, benefit plan details, referrals and prior authorization
submission, claims transmittal, claims adjudication, claims payment, reporting.
Page 15
16
Understood and Agreed:
FOR HEALTHEON FOR COMPANY
By: /s/ Stephen D. Smith By: /s/ Robert F. Theilmann
---------------------------- -----------------------------
Signature Signature
Stephen D. Smith SVP/Sales Robert F. Theilmann CFO
---------------------------- -----------------------------
Name and Title Name and Title
3/28/00 3/16/00
---------------------------- -----------------------------
Date Date
Confidential Page 13 3/16/00