\nExhibit A — Definitions-<\/p>\nExhibit II.B.2(a) — Automated Provider Contract Amendment Provisions*<\/p>\n
Exhibit II.B.2(b) — Automated Provider New Contract*<\/p>\n
Exhibit III.B.7 — Reports-<\/p>\n
Exhibit III.C-1 — Network Standards-<\/p>\n
Exhibit III.C-2 — Customer Support Standards-<\/p>\n
Exhibit IV.G — Average Revenue\/Requisition & Monthly
\n Average Number of Requisitions*<\/p>\n
Exhibit V.A. — Required Maintenance<\/p>\n
Exhibit V.B. — Year 2000 Warranties<\/p>\n
Exhibit VII.C-1 — Current Connectivity Arrangements**<\/p>\n
Exhibit VII.C-2 — Exclusions to Preferred Vendor Status<\/p>\n
<\/c><\/s><\/table>\n
* TO BE DELIVERED BY JANUARY 31, 1998.<\/p>\n
** TO BE DELIVERED BY JANUARY 15, 1998.<\/p>\n
EXHIBIT A<\/p>\n
DEFINITIONS<\/p>\n
“AAA” means the American Arbitration Association.<\/p>\n
“ActaLab Software” means the ActaLab Software as defined under the
\nLicense Agreement.<\/p>\n
[*] has the meaning set forth in Section XII.E.6 of the Services
\nAgreement. <\/p>\n
“ActaMed” means ActaMed Corporation, a Georgia corporation.<\/p>\n
“ActaMed Gateway shall have the meaning set forth in Section
\nII.A.1.<\/p>\n
“ActaMed Indemnitee” means ActaMed and its directors, officers,
\nemployees, affiliates and permitted assigns.<\/p>\n
“ActaMed Network” means the EDI system and network for electronic
\nTransmissions, which includes the Network Software and ActaMed’s gateway and
\nhardware and computer systems needed to operate that software.<\/p>\n
“ActaMed President” shall mean the President of ActaMed, presently
\nMichael K. Hoover, or should ActaMed be restructured in any manner, the officer
\nof ActaMed having top authority over ActaMed’s operations.<\/p>\n
“ActaMed Relationship Manager” shall have the meaning set forth in
\nSection XI.<\/p>\n
“ActaMed Site” means an Automated Provider utilizing the Network
\nfor Lab EDI Services located in a transferred Region that was an SBCL Site on
\nthe Transfer Date of the Region or is a New Site or [*].<\/p>\n
“Agreed Services” means all services to be rendered by ActaMed
\nunder this Services Agreement, including without limitation Lab EDI Services.<\/p>\n
“Anniversary” shall mean the anniversary date of the Region One
\nTransfer Date.<\/p>\n
“Audit Rights” means the right to, or to have representatives, <\/p>\n
(1) examine all books of account, records, reports and
\nother papers except to the extent that such action would, in the reasonable
\nopinion of counsel, constitute a waiver of the attorney\/client privilege or
\nviolate obligations of confidentiality to third parties,<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-1<\/p>\n
(2) make copies and take extracts from any thereof,
\nexcept for information which is subject to a written confidentiality agreement
\nwith a third party,<\/p>\n
(3) discuss the affairs, finances and accounts of the
\nparty being audited with such party’s officers and independent certified public
\naccountants (and by this provision such audited party hereby authorizes said
\naccountants to discuss with the auditing party and its representatives, the
\nfinances and accounts of such entity) and<\/p>\n
(4) visit and inspect, at reasonable times and on
\nreasonable notice during normal business hours, the properties of the other
\nparty;<\/p>\n
PROVIDED THAT, the foregoing audit rights are in addition to any rights of a
\nparty under the Georgia Business Corporation Code in the case of ActaMed, or the
\nDelaware General Corporation Law in the case of SBCL, and shall in no way limit
\nsuch rights; and <\/p>\n
PROVIDED FURTHER THAT, the expenses incurred in connection with any such
\ninspection shall be for the account of the auditing party, except that all
\nreasonable expenses incurred by the audited party, or any of its officers,
\nemployees, agents or independent certified public accountants, shall be
\nexpenses payable by the audited party and shall not be expenses of the auditing
\nparty. <\/p>\n
“Automated Provider” means a Provider [*] who or which, on or
\nafter the Transfer Date of the Region in which the Provider [*] is located,
\nuses the Network to send clinical laboratory test orders to an SBCL Lab or to
\nreceive test result reports from an SBCL Lab.<\/p>\n
“Changes” means any improvements, changes or additions to
\napplication software and documentation that improve existing functions, add new
\nfunctions, or improve performance through changes in the software or system
\ndesign or coding.<\/p>\n
“Claim” means any claim for indemnification under Section XIV of
\nthe Services Agreement.<\/p>\n
“Claims Notice” means a written notice of an indemnification claim
\ndelivered pursuant to Section XIV of the Services Agreement.<\/p>\n
“Confidential Information” means information that is (1)
\nconfidential to the business of a party, including without limitation, data
\nregarding the extent of the Agreed Services provided hereunder to, or
\nTransaction Fees, Fixed Fees or PIFs paid hereunder by, SBCL, (2) is designated
\nand identified as such by such party, and (3) is not a Trade Secret; provided,
\nhowever, that Confidential Information does not include any information which is
\nor becomes generally known to the public without any breach by the Receiving
\nParty of its duties to the Disclosing Party. Assuming that the foregoing
\ncriteria are met, Confidential Information also includes information which has
\nbeen disclosed to a Receiving Party by another person and which the Receiving
\nParty is obligated to treat as confidential.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-2<\/p>\n
“Customer Support Standards” has the meaning set forth in Section
\nIII.C of the Services Agreement.<\/p>\n
“Development Agreement” means the Development Agreement between
\nSBCL and ActaMed dated October 31, 1997 for the initial development of the
\nActaLab Software.<\/p>\n
“Disclosing Party” has the meaning set forth in Section X.C of the
\nServices Agreement.<\/p>\n
“Disease Management Business” shall have the meaning set forth in
\nSection VIII.D.<\/p>\n
“Dispute Notice” means a written notice by one party hereto
\nnotifying the other of the existence of a dispute, which notice shall delineate
\nthe disputed items and the factual basis for the dispute.<\/p>\n
“Disputing Party” has the meaning given in Section XV.B of the
\nServices Agreement.<\/p>\n
“EDI” means electronic data interchange.<\/p>\n
“Exclusive Developments” has the meaning set forth in Section
\nV.E.1.a of the Services Agreement.<\/p>\n
“First Variable Fee” has the meaning set forth in Section IV.C.1 of
\nthe Services Agreement.<\/p>\n
“Fixed Fee” means the amounts payable by SBCL pursuant to Section
\nIV.A of the Services Agreement.<\/p>\n
“Fixed Fee Sites” has the meaning set forth in Section IV.G of the
\nServices Agreement.<\/p>\n
“FTE” means “full time equivalent,” i.e., the equivalent number of
\nwork hours that would be worked by one person working on a full time basis,
\ntreating eight (8) hours worked per day as a full work day. <\/p>\n
“Indemnifying Party” means the Party obligated to provide
\nindemnification pursuant to Section XIV of the Services Agreement.<\/p>\n
“Indemnitee” means an ActaMed Indemnitee or an SBCL Indemnitee.<\/p>\n
“Integrity Agreement” means SBCL’s Corporate Integrity Agreement
\nwith the OIG.<\/p>\n
“Intellectual Property” means copyrights, trademarks, service
\nmarks, trade names, patents, applications therefor, technology rights and
\nlicenses, computer software (including, without limitation, any source or object
\ncodes therefor or documentation relating thereto), computer software licenses,
\ntrade secrets, franchises, know-how, inventions and intellectual property
\nrights.<\/p>\n
A-3<\/p>\n
“Key Performance Standards” shall mean the Performance Standards
\nunder the headings of [*]<\/p>\n
“Lab EDI Services ” means electronic connectivity services enabling
\nan Automated Provider to send Transmittal Information electronically to an SBCL
\nLab and\/or to receive electronically Transmittal Information from an SBCL Lab
\nutilizing the Network.<\/p>\n
“Liability” means any direct or indirect liability, indebtedness,
\nobligation, expense, claim, deficiency, guaranty or endorsement of or by any
\nperson (other than endorsements of notes, bills and checks presented to banks
\nfor collection or deposit in the ordinary course of business) of any type,
\nwhether accrued, absolute, contingent, matured, unmatured or other.<\/p>\n
“License Agreement” means the License Agreement between SBCL and
\nActaMed dated the date of the Services Agreement and described in the Preamble
\nto the Services Agreement.<\/p>\n
“Licensed Materials” means the software licensed pursuant to the
\nLicense Agreement.<\/p>\n
[*] has the meaning set forth in Section XII.E.4 of the Services
\nAgreement.<\/p>\n
“Losses” means any and all demands, claims, actions or causes of
\naction, assessments, losses, diminution in value, damages (including special and
\nconsequential damages), liabilities, costs, and expenses, including without
\nlimitation, interest, penalties, cost of investigation and defense, and
\nreasonable attorneys’ and other professional fees and expenses.<\/p>\n
[*] has the meaning set forth in Section XII.F of the Services
\nAgreement.<\/p>\n
“Network” means the SCAN Network and\/or the ActaMed Network.<\/p>\n
“Network Software” means ActaMed’s personal computer version of the
\nProviderLink and ActaLink presentation and network software programs, under
\nwhatever name marketed, and the SCAN Software and the ActaLab Software, and all
\nChanges to them, which are licensed to Automated Providers and which allow
\naccess to the Network for the transmission of laboratory test order entries and
\nreception of test result information, or other software program for use by
\nActaMed in the transmission of test order entries and reception of test result
\ninformation which is licensed to Automated Providers.<\/p>\n
“Network Standards” shall have the meaning set forth in Section
\nIII.C of the Services Agreement.<\/p>\n
“New Business Plan” shall mean the ActaMed business plan delivered
\npursuant to Section 5.1.8 of the Purchase Agreement.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-4<\/p>\n
“New Site” shall mean an ActaMed Site added to the Network on or
\nafter the Transfer Date of the Region in which the ActaMed Site is located and
\nwhich is not a Fixed Fee Site.<\/p>\n
“Office Space” has the meaning set forth in Section II.B.5 of the
\nServices Agreement.<\/p>\n
“OIG” means the Office of Inspector General, U.S. Department of
\nHealth and Human Services.<\/p>\n
“Other Lab” means a commercial laboratory other than an SBCL Lab.<\/p>\n
“Oversight Committee” has the meaning set forth in Section III.A of
\nthe Services Agreement.<\/p>\n
“Panel” has the meaning given it in Section XV.B of the Services
\nAgreement.<\/p>\n
“PC System” means the personal computer, modem, bar code readers,
\nbar code label printers, requisition and results printers and other hardware
\nperipherals required for a Provider to become an Automated Provider.<\/p>\n
[*] means an SBCL [*] or other [*].<\/p>\n
“Performance Standards” shall have the meaning set forth in Section
\nIII.C of the Services Agreement.<\/p>\n
“PIF Amount” has the meaning given it in Section IV.C.2 of the
\nServices Agreement.<\/p>\n
“PIF Number” has the meaning given it in Section III.B.3 of the
\nServices Agreement.<\/p>\n
“PIF Sites” has the meaning given it in Section III.B.3 of the
\nServices Agreement.<\/p>\n
[*] or “PIF” has the meaning given it in Section IV.M.1 of the
\nServices Agreement.<\/p>\n
“Provider” means a physician, clinic, hospital, or other provider
\nof clinical health care services other than [*].<\/p>\n
“Purchase Agreement” means the Asset Purchase Agreement between
\nActaMed and SBCL dated the date of the Services Agreement and described in the
\nPreamble to the Services Agreement.<\/p>\n
“Receiving Party” has the meaning given it in Section X.C of the
\nServices Agreement.<\/p>\n
“Region” means any one of Region One, Region Two, Region Three, or
\nRegion Four.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-5<\/p>\n
“Region Four” means the Region described on Schedule 2.2(d) to the
\nPurchase Agreement.<\/p>\n
“Region Four Transfer Date” has the meaning given in Section 2.3.4
\nof the Purchase Agreement.<\/p>\n
“Region One” means the Region described on Schedule 2.2(a) to the
\nPurchase Agreement.<\/p>\n
“Region One Transfer Date” means the date on which Region One is
\ntransferred to ActaMed pursuant to the Purchase Agreement.<\/p>\n
“Region Three” means the Region described on Schedule 2.2(c) to the
\nAssets Purchase Agreement.<\/p>\n
“Region Three Transfer Date” has the meaning given in Section 2.3.3
\nof the Purchase Agreement.<\/p>\n
“Region Two” means the Region described on Schedule 2.2(b) to the
\nPurchase Agreement.<\/p>\n
“Region Two Transfer Date” has the meaning given in Section 2.3.2
\nof the Purchase Agreement.<\/p>\n
“Regulation” means any statute, law, ordinance, regulation,
\nrequirement, order or rule of any federal, state, local government or other
\ngovernmental agency or body or of any other type of regulatory body, or any
\ngovernmental or administrative interpretation of any thereof, including, without
\nlimitation, (i) those covering health, safety, environmental, energy,
\ntransportation, bribery, record keeping, zoning, antidiscrimination, antitrust,
\nwage and hour, and price and wage control matters, (ii) requirements imposed by
\nany governmental or regulatory body which must be satisfied to qualify for
\nMedicare reimbursements, and (iii) any and all federal, state and local health
\ncare laws relating to or covering the methods and ways in which Lab EDI Services
\nand other related or incidental services or benefits, if any, are provided to
\nthe Automated Providers, including, but not limited to, the Stark law (42 U.S.C.
\nSection 1395nn) and the Clinical Laboratory Improvements Act of 1988, as
\namended.<\/p>\n
[*] has the meaning set forth in Section IV.G of the Services
\nAgreement.<\/p>\n
[*] has the meaning set forth in Section IV.G.2 of the Services
\nAgreement.<\/p>\n
“Representatives” means the ActaMed Relationship Manager and the
\nSBCL Relationship Manager.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-6<\/p>\n
“Requisition” shall mean an electronically transmitted clinical
\nlaboratory test order from an Automated Provider to SBCL which is entered
\nutilizing SCAN Software, the ActaLab Software or other program for electronic
\nlab order entry and results reporting and utilizing the Network, for one or
\nmore clinical laboratory tests for a single patient transmitted
\nelectronically at one time and the corresponding test results delivered
\nelectronically to an Automated Provider from SBCL at one or more times. The
\nterm “Requisition” shall include patient eligibility for third party payor
\nbenefits or reimbursement or claim status checking related to such order and
\navailable to ActaMed.<\/p>\n
“SBCL” means SmithKline Beecham Clinical Laboratories, Inc., a
\nDelaware corporation.<\/p>\n
“SBCL Access” has the meaning set forth in Section X.B.2 of the
\nServices Agreement.<\/p>\n
“SBCL Indemnitee” means SBCL and its directors, officers,
\nemployees, affiliates and permitted assigns.<\/p>\n
“SBCL Lab” means any location at which SBCL or its affiliates
\nprovide, or may in the future provide, clinical laboratory testing services,
\nregardless of the computer systems or software, if any, used by such lab for lab
\norder entry and results reporting.<\/p>\n
“SBCL President” shall mean the President of SBCL, presently
\nJohn B. Okkerse, Jr., Ph.D., or should SBCL be restructured in any manner, the
\nofficer of SBCL having top authority over SBCL’s operations.<\/p>\n
“SBCL Relationship Manager” has the meaning set forth in Section XI
\nof the Services Agreement.<\/p>\n
“SBCL Site” means an Automated Provider utilizing the SCAN Network
\nfor Lab EDI Services on the Transfer Date of the Region in which such Automated
\nProvider is located.<\/p>\n
“SCAN Assets” has the meaning set forth in the Purchase Agreement.<\/p>\n
“SCAN Developments” has the meaning set forth in the License
\nAgreement.<\/p>\n
“SCAN Network” means the SCAN Software and SBCL’s gateway and
\nhardware and computer systems needed to operate the SCAN Software, excluding
\n[*] which enables Providers or [*] to place laboratory test orders
\nelectronically to an SBCL Lab and\/or to receive test result reports
\nelectronically from an SBCL Lab.<\/p>\n
“SCAN PSC” means a PSC which utilizes the Network to enter
\nlaboratory test orders electronically and\/or to receive test result reports
\nelectronically.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-7<\/p>\n
“SCAN Site” means either an SBCL Site or an ActaMed Site that has
\ninstalled and is using SCAN Software for Lab EDI Services.<\/p>\n
“SCAN Software” means the SBCL SCAN-TM- software licensed to
\nActaMed pursuant to the License Agreement, and all Changes thereto after the
\ndate hereof.<\/p>\n
“Second Variable Fee” has the meaning set forth in Section IV.C.2
\nof the Services Agreement.<\/p>\n
[*] has the meaning set forth in Section XII.E.5 of the Services
\nAgreement.<\/p>\n
“SOP” means a standard operating procedure.<\/p>\n
“Termination Transition” has the meaning given it in Section XII.D
\nof the Services Agreement.<\/p>\n
“Third Party Claim” means any claim, suit or proceeding (including,
\nwithout limitation, a binding arbitration or an audit by any taxing authority)
\nthat is instituted against an Indemnitee by a person or entity other than an
\nIndemnitor and which, if prosecuted successful, would result in a Loss for which
\nsuch Indemnitee is entitled to indemnification hereunder.<\/p>\n
“TopLab” means SBCL’s proprietary laboratory systems which
\nfacilitate SBCL’s internal automated laboratory test processing and reporting,
\nincluding but not limited to SBCL’s Total Order Processing Laboratory system.<\/p>\n
“Trade Secrets” means information related to the Disclosing Party
\n(1) which derives economic value, actual or potential, from not being generally
\nknown to or readily ascertainable by other persons who can obtain economic value
\nfrom its disclosure or use, and (2) which is the subject of efforts by the
\nDisclosing Party that are reasonable under the circumstances to maintain its
\nsecrecy. Without limitation, for ActaMed, ProviderLink and the ActaLab Software
\nare Trade Secrets, and for SBCL, the SBCL Software, SCAN Developments and
\nTopLab are Trade Secrets.<\/p>\n
“Transaction Fee Amount” has the meaning set forth in Section
\nIV.C.1 of the Services Agreement.<\/p>\n
“Transaction Fees” has the meaning set forth in Section IV.B of the
\nServices Agreement.<\/p>\n
“Transfer Date” shall mean any one of, and “Transfer Dates” shall
\nmean more than one of the Region One Transfer Date, the Region Two Transfer
\nDate, the Region Three Transfer Date, and the Region Four Transfer Date.<\/p>\n
“Transferred Employees” shall have the meaning given such term in
\nthe Purchase Agreement.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
A-8<\/p>\n
“Transmission” means the electronic transmittal over the Network of
\nTransmittal Information in an approved document format.<\/p>\n
“Transmittal Information” means information which an Automated
\nProvider gives ActaMed for communication to SBCL over the Network, or which SBCL
\ngives ActaMed for communication to an Automated Provider over the Network,
\nincluding all copies of same, and including without limitation, data relating to
\nlaboratory records, clinical data, encounter data, test information, test codes
\nand provider identification numbers (other than UPINs)<\/p>\n
“Variable Fees” has the meaning given it in Section IV.C.2 of the
\nServices Agreement.<\/p>\n
A-9<\/p>\n
EXHIBIT II.B.2(a)<\/p>\n
LAB EDI SERVICE AGREEMENT AMENDMENT PROVISIONS<\/p>\n
III.B.2-1<\/p>\n
EXHIBIT II.B.2(b)<\/p>\n
LAB EDI SERVICE AGREEMENT<\/p>\n
III.B.7-1<\/p>\n
EXHIBIT III.B.7<\/p>\n
REPORTS<\/p>\n
A. REPORTS ACTAMED WILL PROVIDE TO SBCL<\/p>\n
The following reports will be provided to SBCL by ActaMed on the
\nindicated schedule.<\/p>\n
1. BILLING REPORTS<\/p>\n
a. [*] SUMMARY REPORTS (POST-ACTAMED GATEWAY):<\/p>\n
(1) Fixed Fee Sites<\/p>\n
(a) Total Sites<\/p>\n
(b) Total Requisitions<\/p>\n
(c) Average Requisitions per Site<\/p>\n
(2) Transaction Fee Sites<\/p>\n
(a) Total Sites<\/p>\n
(b) Total Requisitions<\/p>\n
(c) Average Requisitions per Site<\/p>\n
(3) PIF Sites<\/p>\n
(a) Total Sites charged for the [*] that [*]
\n (with appropriate supporting detail)<\/p>\n
(4) Label Printer Fees<\/p>\n
(a) Total Sites charged for the Label printer
\n equipment fee (with appropriate supporting
\n detail)<\/p>\n
b. [*] DETAILED FEES:<\/p>\n
(1) List of Fixed Fee sites by lab<\/p>\n
(2) List of Transaction Fee sites by lab<\/p>\n
III.B.7-1<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
(3) List of PIF Sites by lab<\/p>\n
(4) List of sites with bar code printer paid by SBCL by
\n lab<\/p>\n
c. CUSTOM DEVELOPMENT:<\/p>\n
(1) Monthly itemization and accounting for the hours
\n worked for any projects active under a Custom
\n Development Fee, and a project status report on each
\n item worked<\/p>\n
d. MONTHLY EXPENSE BILLINGS:<\/p>\n
(1) Personnel in non-transferred regions, with
\n supporting detail<\/p>\n
2. PERFORMANCE REPORTS<\/p>\n
a. All reports necessary to verify and measure the
\n Performance Standards, including, but not limited to, the
\n following: (i) [*] help desk REPORTS, as set forth
\n in Exhibit III.C-2 – Customer Support Standards showing
\n performance statistics against the Performance Standards
\n and the number of calls received by type of problem
\n (detail problem coded); (ii) [*] network reports, as
\n set forth in Exhibit III.C-1 – Network Standards; (iii)
\n Performance Metrics reports against the Performance
\n Standards described in Exhibit III.C-1 & 2, including
\n comparison of actuals to standard for current month and
\n rolling prior 12 months.<\/p>\n
b. Transfer BENCHMARK reports, as set forth in Exhibit
\n 2.3.1(a) of the Assets Purchase Agreement.<\/p>\n
c. Monthly Gateway reports (format to be mutually determined
\n once the ActaMed GATEWAY is active, but intended to be
\n generally similar to the SBCL November 1997 Gateway
\n Report).<\/p>\n
d. As APPROPRIATE from time to time, in light of
\n technological advances, market conditions or industry
\n standards or other facts and circumstances, a report
\n describing ActaMed’s plans to increase the performance
\n and capabilities of the Network and to improve Customer
\n Service beyond the minimum levels specified in Exhibits
\n III.C-1 and III.C-2.<\/p>\n
e. Monthly report of SBCL clients that have deinstalled
\n (discontinued to use) Lab EDI Services.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.B.7-2<\/p>\n
f. An ongoing data base (to be created, kept current and
\n available for reporting) report of the current list of
\n clients approved for installation including date
\n received, Lab, Client ID, Client demographics and
\n expected date of installation.<\/p>\n
3. SAS 70 REPORT<\/p>\n
ActaMed will provide a report produced in accordance with
\nstandards established by the American Institute of Certified Public Accountants’
\nStatement on Auditing Standards Number 70: Reports on the Processing of
\nTransactions by Service Organizations. ActaMed shall submit the first such
\nreport to SBCL by the end of 1998.<\/p>\n
B. REPORTS SBCL WILL PROVIDE TO ACTAMED<\/p>\n
1. BILLING REPORTS<\/p>\n
A. SBCL WILL MAKE AVAILABLE TO ACTAMED ACCESS TO DATA
\n RELATING TO:<\/p>\n
(1) Fixed Fee Sites<\/p>\n
(2) Total Sites (list of Fixed Fee Sites by Lab active
\n that month)<\/p>\n
(3) List of Transaction Fee sites by Lab<\/p>\n
B. FOLLOWING ACTAMED GATEWAY, MONTHLY EXPENSE BILLINGS (with
\n appropriate SUPPORTING detail):<\/p>\n
(1) Gateway 1-800 charges to ActaMed<\/p>\n
(2) Non-transferred local line charges<\/p>\n
(3) Service Fees for ongoing support of ActaMed Gateway,
\n if any<\/p>\n
(4) Service Fees for SBCL Gateway Services for
\n Transferred Sites, if any<\/p>\n
2. PERFORMANCE REPORTS<\/p>\n
a. Prior to the ActaMed Gateway, SBCL will continue to
\n provide ActaMed with copies of its standard monthly
\n Gateway report.<\/p>\n
b. Timely reports on changes in SBCL that affect ActaMed and
\n its PERFORMANCE hereunder, as set forth in Section IX.<\/p>\n
III.B.7-3<\/p>\n
3. STRATEGIC INFORMATION<\/p>\n
Quarterly information on major trends within SBCL as
\nappropriate that are relevant to ActaMed and its performance hereunder, such as
\nnew customers, lost customers, trends in lab requisition and result volumes,
\ncompliance related issues, etc.<\/p>\n
III.B.7-4<\/p>\n
EXHIBIT III.C-1<\/p>\n
NETWORK SUPPORT STANDARDS<\/p>\n
ACTAMED NETWORK AVAILABILITY<\/p>\n
The ActaMed Network will be available 24 hours a day, 7 days a week with the
\nexception of Planned Down Hours. “Planned Down Hours” means that time which is
\nreasonably required for maintenance and problem resolution as reasonably
\nrequired and notwithstanding any other provision herein shall only occur during
\nthe hours of [*] or on Federally recognized holidays.<\/p>\n
HARDWARE AND MODEM AVAILABILITY<\/p>\n
For each month, ActaMed shall maintain an “Availability Percentage” of at
\nleast [*]. Hardware systems and modems are operational and available for
\nreceiving\/accepting calls as measured by an ActaMed systems management and
\nmonitoring tool [*]. Hardware specifically includes the ActaMed host
\nmachines required to process Lab EDI Services transactions, ActaMed
\nprovisioned modems and circuit termination equipment servicing Automated
\nProviders using the ActaMed Network, and other third party provisioned
\ndial-in access service and devices relevant to the Lab EDI Services. <\/p>\n
The “Availability Percentage” for Lab EDI Services shall be calculated on [*]
\nand will be based on data gathered through an automated Systems Management
\nand Reporting tool [*]. Similar automated measurement and reporting will be
\nimplemented as soon as is practical for SCAN Sites transferred to the ActaMed
\nGateway, but not later than 180 days following such transfer of the first
\nSCAN Site to the ActaMed Gateway. The Availability Percentage is calculated
\nas set forth below:<\/p>\n
– Defined Hours are the total days in the month multiplied by 24
\n hours.<\/p>\n
– Unplanned Hours are the hours experienced during the month in
\n which the ActaMed Network is not operable or otherwise not properly
\n transmitting valid Transmission as provided in the Agreement
\n excluding Planned Down Hours.<\/p>\n
– Actual Hours are the Defined Hours minus the Unplanned Hours.<\/p>\n
– Availability Percentage is determined by dividing the Actual Hours
\n by Defined Hours and multiplying the result by 100.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.C-1-1<\/p>\n
SUCCESSFULLY DELIVERED CALLS<\/p>\n
For each month, ActaMed shall maintain a “Successfully Delivered Call
\nPercentage” of at least [*]. The “Successfully Delivered Call Percentage” is
\nthe total of all Successfully Delivered Calls divided by the total of attempted
\ncalls from all sources and multiplying the result by 100.<\/p>\n
A Successfully Delivered Call shall mean a call made to ActaMed’s premise
\nequipment from any source for the purpose of processing Lab EDI Services. as to
\nwhich ActaMed’s equipment successfully offers service, to be measured by the
\ncall service provider’s equipment facilities including:<\/p>\n
– calls delivered by an Interexchange Carrier (“IXC”), such as
\n Sprint, AT&T, Worldcom, etc., using toll-free dial-in service to
\n will be measured by the IXC carrier switch;<\/p>\n
– calls delivered by a third party dial-in access provider will be
\n measured by the management capabilities of that provider’s modem
\n pool; and<\/p>\n
– calls delivered by a local service provider or by dedicated
\n toll-free dial-in service will be measured by ActaMed’s
\n terminating premise equipment.<\/p>\n
MODEM CONNECTIVITY <\/p>\n
For each month, ActaMed shall maintain a “Modem Connectivity Percentage” of at
\nleast [*]. The “Modem Connectivity Percentage” is determined by dividing the
\ntotal number of Successfully Connected Calls by the total of Successfully
\nDelivered Calls and multiplying the result by 100.<\/p>\n
A Successfully Connected Call is a Successfully Delivered Call that establishes
\nand maintains successful modem connection as determined by the statistics
\ngenerated by the management and reporting functionality of the ActaMed
\nterminating modem bank and\/or third party dial-in access equipment.<\/p>\n
TRANSACTION PROCESSING <\/p>\n
ActaMed acknowledges and agrees that all Transactions meeting the
\nrequirements set forth next to one or both of the bullet points below
\n(“Proposed Transaction”) will be processed by the ActaMed Network. If
\nProposed Transactions are not being processed by the ActaMed Network, it will
\nbe treated as a Severity 1 problem. It is expected by the Parties that [*]
\nof connected and Proposed Transactions will be successfully processed within
\nActaMed Network. <\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.C-1-2<\/p>\n
– Any order transactions that are entered according to the applicable
\n specifications and edits of the Lab EDI software such as SCAN Software
\n or ActaLab Software or any other ordering software module approved by
\n ActaMed and SBCL that is connected to the ActaMed Network for the
\n purposes of entering lab orders and upon completion of the order entry
\n indicates to the operator that the order has been accepted for
\n Transmission to SBCL; and<\/p>\n
– Any result transactions transmitted by SBCL systems in accordance with
\n applicable specifications and containing sufficient information to allow
\n the ActaMed Network to determine the approved system to which the
\n transaction is to be delivered.<\/p>\n
[*]<\/p>\n
[*] The Parties agree that this is not a currently automated measurement and
\nis not included as a requirement of Section III.B.7, Reports.<\/p>\n
HISTORICAL DATA FOR RE-TRANSMISSION<\/p>\n
ActaMed will store all result transmission data on, and make it available in
\naccordance with the Services Agreement via, the ActaMed Gateway for a minimum of
\n[*].<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.C-1-3<\/p>\n
EXHIBIT III.C-2<\/p>\n
CUSTOMER SUPPORT STANDARDS<\/p>\n
ACTAMED HELP DESK<\/p>\n
The ActaMed Help Desk for all Lab EDI Services will be staffed Monday through
\nFriday 8:00 AM to 8:00 PM EST excluding federally recognized holidays. Issues
\nof any severity level can be reported during this time via any one of the
\nfollowing methods:<\/p>\n
– Telephone via ActaMed toll-free service (800 line);
\n – FAX;
\n – Internet e-mail to ActaMed help desk personnel; or
\n – Internet e-mail directly into the ActaMed Help Desk call tracking
\n system.<\/p>\n
In addition, <\/p>\n
– Internet web pages are being constructed to answer frequently asked
\n questions;
\n – By special arrangement, limited direct access to the ActaMed Help
\n Desk call tracking system is possible; and
\n – Using Internet e-mail and the assigned tracking number, the status
\n of calls can be retrieved at any time.<\/p>\n
There shall be after hours support, which is typically limited to issues that
\nare defined as Severity 1 or Severity 2 as further defined below. These are
\neither issues that involve multiple users and major communications or systems
\nfailures, or problems involving an outage of a single Automated Provider
\n(i.e. non-critical issues such as training questions, enhancement requests
\nand usage questions are usually handled during normal help desk hours.)
\nService is initiated by calling the main Help Desk 800 number and leaving a
\ndetailed message. Voice mail left after hours or on holidays will result in a
\npage to the appropriate on call analyst who will retrieve the message and
\nreturn the call and immediately initiate investigatory and corrective actions
\nas appropriate in accordance with Severity Levels.<\/p>\n
III.C-2-1<\/p>\n
CALL TRACKING<\/p>\n
Beginning at such time as the ActaMed SCAN help desk begins to accept client
\ncalls from ActaMed Sites, which shall occur at a date mutually agreed upon by
\nthe parties, all calls made to the ActaMed SCAN Help Desk will be logged into
\nActaMed’s “Support Magic” call tracking system, and will include at a minimum
\nthe following information:<\/p>\n
– Site ID (Machine ID)
\n – Site Name
\n – Caller Name
\n – Phone Number
\n – Local Lab
\n – Date of Call
\n – Time of Call
\n – Problem Code \/ Description
\n – Call Recipient \/ Analyst
\n – Problem Definition
\n – Call Status
\n – Solution Code \/ Clear Description of final resolution
\n – Severity Code
\n – Date and time of final resolution<\/p>\n
ActaMed shall be responsible only for calls related to ActaMed Sites. Calls
\nfrom all other SCAN sites will continue to be supported by SBCL and will
\ncontinue to be tracked by SBCL processes as in force at that time.<\/p>\n
SEVERITY CODES<\/p>\n
Help Desk calls will be logged and appropriate escalations will be made based
\nupon severity codes assigned to each call. It is the responsibility of the
\nanalyst handling the call to assign the severity level in accordance with the
\nseverity level definitions described below. The definition of each<\/p>\n
III.C-2-2<\/p>\n
severity level and the classification of call types into severity levels will
\ninitially be as set forth below, with more specific definitions to be
\ndetermined through negotiation between ActaMed and SBCL. The definitions may
\nbe reassessed and are subject to change by mutual consent of the Parties.
\nThe ActaMed Help Desk’s method of classifying calls into priority levels will
\nbe reviewed periodically with the Oversight Committee. SBCL will be
\nresponsible for defining additional situations and communicating to ActaMed
\nany requests on how to classify particular call situations.<\/p>\n
SEVERITY 1<\/p>\n
DEFINITION: A critical system or component is down or experiencing
\n degraded service causing SBCL or a customer’s business functions to be
\n halted. Severity I issues will typically involve major system outages
\n that affect the service provided to many users.<\/p>\n
REQUIRED ACTION: Immediate notification to those persons identified in
\n the Crisis Management document. [*] of Severity 1 issues should be
\n resolved within [*] with [*] updates between ActaMed and SBCL.<\/p>\n
SEVERITY 2 <\/p>\n
DEFINITION: A single user is down; a component is experiencing degraded
\n service; consumable supplies are unavailable and does not have a
\n critical impact on the business, but may restrict function to some users
\n and may impact normal business operations.<\/p>\n
REQUIRED ACTION: The help desk will asses the situation and verify that
\n setup or configuration problems are not the cause. After the original
\n assessment has been made, an ActaMed CIS representative will normally be
\n dispatched to correct or replace the failing component. In remote areas
\n where localized support is not available, a replacement component will
\n be shipped for next day delivery, and arrangements will be made to
\n provide assistance setting up or installing that component.
\n Arrangements will also be made to remove or arrange for the removal of
\n the failed component. [*] of Severity 2 calls should be resolved within
\n [*] with updates to the affected user every [*] or less.<\/p>\n
SEVERITY 3<\/p>\n
DEFINITION: A user’s system is still operating but is experiencing
\n difficulties or a specially requested deliverable is unavailable.<\/p>\n
REQUIRED ACTION: The Help Desk will make every attempt to resolve the
\n issue over the phone or using the tools available to them. If those
\n attempts are not successful, a ActaMed CIS representative might be
\n called upon to resolve the issue on site, but these issues will
\n typically have a lower priority than the Severity 2 issues listed above.
\n [*] of Severity 3 calls will be resolved within [*] with updates to
\n the affected user every [*] or less.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.C-2-3<\/p>\n
NEW SITE INSTALLATION<\/p>\n
In accordance with the agreed upon procedures for installing New Sites (or [*]
\nSites) that SBCL requests or approves for Lab EDI Services, ActaMed will:<\/p>\n
– If required, phone line installation and new service will be
\n ordered on behalf of the Provider or SBCL on average within [*] of
\n receipt of new site notification and,
\n – Provide installation and training, including any hardware required
\n under Section IV.L of the Services Agreement, to properly prepare
\n and set up the new client to use Lab EDI Services within [*] of
\n receipt of new site notification and phone line availability; or
\n – PIF Sites will be installed within [*] from the time the
\n notification is received and phone service is available.<\/p>\n
except that, (i) delays caused by the practice management system vendor or the
\nProvider, shall not be the responsibility of ActaMed; and (ii) SBCL and ActaMed
\nwill, when necessary, cooperate in the development of site installation
\nschedules to reflect periods of high volumes of new installations and remote
\ninstallations (usually requiring air travel).<\/p>\n
DE-INSTALLATIONS<\/p>\n
When required by the Assets Purchase Agreement or this Agreement, ActaMed
\nwill deinstall any Automated Provider within [*] of receipt of SBCL’s
\ndeinstallation request. Re-deployment of the deinstalled PC System for Lab
\nEDI Services will be in accordance with Section IV of the Services Agreement
\nand in accordance with the performance metrics of a New Site.<\/p>\n
RETAINING<\/p>\n
ActaMed will provide ongoing training support in a manner and at such frequency
\nas is reasonably required to maintain client satisfaction and ability to
\ncontinue to use Lab EDI Services effectively to process laboratory transactions.<\/p>\n
SCAN CONSUMABLE SUPPLIES<\/p>\n
ActaMed will provide, [*] consumable supplies required by all ActaMed Sites
\nfor use of Lab EDI Services including printer paper, toner cartridges, backup
\ntape cartridges and labels that meet SBCL label specifications. ActaMed will
\ndeliver or arrange for delivery of these as required for uninterrupted use of
\nLab EDI Services. Client requests for such supplies that prevent use of Lab
\nEDI Services will be considered a Severity [*] problem.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
II.C-2-4<\/p>\n
MEASUREMENTS AND REPORTING<\/p>\n
Measurement will begin when the problem is received by the ActaMed Help Desk at
\nwhich time it will be recorded into the computerized on-line problem management
\ntool. Measurement will end when the call is resolved satisfactorily and closed
\nby the ActaMed Help Desk representative. In the case of calls that have been
\nforwarded to an SBCL facility for questions or issues not covered by the ActaMed
\nHelp Desk, the ActaMed Analyst will, except in those cases where the problem
\ndetermination or resolution is clearly the responsibility of SBCL because of the
\nnature of the call, take ownership of that call and follow it through any other
\npath it may take. So long as SBCL provides the information needed to resolve
\nsuch a call, ActaMed will also be made to document that call and close it out
\nwith a detailed explanation of the final resolution. Where it is not possible
\nfor the ActaMed Analyst to remain “on the call”, it is the responsibility of the
\nSBCL personnel to notify the ActaMed Help Desk if the outcome is to be
\ndocumented in the help desk system.<\/p>\n
Other measurements that will be made available on a monthly basis will come from
\nthe ACD system. The variety of reports available based upon the call tracking
\nsystem and the ACD statistics will include:<\/p>\n
\n\n REPORT TARGET SERVICE LEVEL
\n —— ——————–<\/p>\n
\n
\n Number of calls by category N\/A, will vary<\/p>\n Calls by region N\/A, will vary<\/p>\n
Abandoned call rate *<\/p>\n
Average hold time [*] <\/p>\n
<\/c><\/s><\/caption>\n<\/table>\n
* since there is no currently available SBCL baseline to be used to set
\nreasonable standards, ActaMed will record these metrics from the beginning of
\nits operations of the help desk. After the first four months of help desk
\noperation, ActaMed and SBCL will evaluate performance and set mutually-agreeable
\nmetrics based on SBCL’s actual performance and generally accepted performance
\nstandards for similar services. In no case shall such metrics result in
\nstandards lower than those generally found in the industry for similar services.<\/p>\n
The percent of calls closed within the time frame objectives will be measured by
\ncalculating, by priority level, the volume of calls closed within the time frame
\nobjectives as a percentage of total calls opened.<\/p>\n
The ActaMed Help Desk will use best efforts to accommodate any requests for
\nadditional information as long as the collection of the information does not add
\nsignificant time and effort in logging the call. The ActaMed Help Desk
\nstatistics will be reported to SBCL on a monthly basis. The means of
\ndistribution is yet to be determined.<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
III.C-2-5<\/p>\n
SATISFACTION LEVELS<\/p>\n
For each year during the term of the Services Agreement, ActaMed will perform
\nclient satisfaction surveys assessing Automated Providers’ satisfaction with
\nActaMed’s Lab EDI Services. The format and content of the annual surveys shall
\nbe determined by ActaMed except that ActaMed will afford SBCL reasonable
\nopportunity to review and comment thereon prior to its use. The annual survey
\nwill be conducted at annual intervals.<\/p>\n
III.C-2-6<\/p>\n
EXHIBIT IV.I<\/p>\n
AVERAGE REVENUE\/REQUISITION & MONTHLY
\n AVERAGE NUMBER OF REQUISITIONS<\/p>\n
IV.I-1<\/p>\n
EXHIBIT V.A<\/p>\n
MAINTENANCE<\/p>\n
ActaMed will provide SBCL with the following hardware, network and application
\n(product) maintenance services which will be performed by ActaMed staff not
\ndedicated to SBCL enhancements. The cost of these maintenance services are
\nprovided as a part of the annual Fixed Fee and Transaction Fees, and include the
\nfollowing:<\/p>\n
PRODUCT MAINTENANCE<\/p>\n
– Maintenance of the Network through both emergency and routine bug fixes
\n and scheduled maintenance releases;<\/p>\n
– Such changes and modifications to the Network required to manage
\n scalability and capacity issues associated with increased transaction
\n volumes;<\/p>\n
– Provision of routine, updated application documentation and training
\n materials;<\/p>\n
– Provision of periodic product updates to improve usability and to
\n improve existing features and functionality.<\/p>\n
PERFORMANCE<\/p>\n
– Maintenance, monitoring and reporting of hardware, network and
\n communication systems regarding stability and performance as specified
\n in Exhibit III.C-1 Network Standards;<\/p>\n
– Changes required to maintain above service level commitments, including
\n changes and modifications required to manage scalability and capacity
\n issues associated with increased transaction volumes;<\/p>\n
– Technology upgrades to the Network (to include such things as fault
\n tolerance produces and services) will be included as part of ongoing
\n maintenance; and <\/p>\n
– Maintenance of appropriate connectivity to SBCL host systems to maintain
\n security provisions and the data integrity of Transmissions.<\/p>\n
IV.I-2<\/p>\n
EXHIBIT V.B<\/p>\n
YEAR 2000 WARRANTIES<\/p>\n
ActaMed warrants that the SCAN Software and ActaLab Software as compiled on any
\nhardware and operating system platform designated in its documentation
\n(“Platforms”) will satisfy all of the following:<\/p>\n
(a) Such software will properly process date-related information
\nfrom different centuries (19th through 21st). Results utilizing such software
\nwill be consistent and correct whether or not dates being processed span
\ndifferent centuries and will be given with the proper indication of century.<\/p>\n
(b) Data involving date information which will be generated from
\nuse of the software will be coded in a manner that captures, stores and displays
\ndate-related information so that the software will properly access and process
\nthe data regardless of the century involved.<\/p>\n
(c) The software will properly process date-related data which had
\nbeen generated by previous versions of thereof regardless of the century
\ninvolved.<\/p>\n
(d) The software interfaces with the operating system and other
\nsoftware, and with devices, will properly exchange and use date-related
\ninformation regardless of the century involved, so long as such other software,
\nsystems and devices provide date-related information in a compatible format. <\/p>\n
(e) The software will check any date-related information provided
\nby the user, and by any devices, systems or software with which the software
\ninterfaces, and will reject any date-related information which is not provided
\nin a format which the software will properly process. When data is rejected, the
\nsoftware will generate an explanatory error message.<\/p>\n
(f) The software will not have a feature which will cause it to
\nstop operating or to limit or alter its functions or performance because of a
\ndate or time extending beyond 11:59:59 p.m. on December 31, 1999.<\/p>\n
(g) The software will process information relating to years
\nbeginning with 2000 properly, including recognizing that the year 2000 and every
\nfourth year thereafter is a leap year.<\/p>\n
(h) The software (including but not limited to, runtime systems)
\nwill function correctly if executing at the moment when the year changes from
\n1999 to 2000. The software setup and updates will not be affected by the
\ncentury change.<\/p>\n
V.B-1<\/p>\n
EXHIBIT VII.C-1<\/p>\n
CURRENT CONNECTIVITY ARRANGEMENTS<\/p>\n
VII.C-1-1<\/p>\n
EXHIBIT VII.C-2<\/p>\n
EXCLUSIONS TO PREFERRED VENDOR STATUS<\/p>\n
The SBCL covenants and restrictions contained in Section VII of the Services
\nAgreement (Preferred LAB EDI Vendor) do not apply to any arrangements,
\nrelationships or initiatives by or between SBCL and any of the following parties
\nor for any of the following relationships:<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
VII.C-2-1<\/p>\n
AMENDMENT NO. 1 TO
\n SERVICES AGREEMENT<\/p>\n
This AMENDMENT NO. 1 TO SERVICES AGREEMENT (“Amendment No. 1”) is
\nmade and entered into this 15th day of May, 1998 by and between ACTAMED
\nCORPORATION, a Georgia Corporation (“ActaMed”) and SMITHKLINE BEECHAM
\nCLINICAL LABORATORIES, INC., a Delaware Corporation (“SBCL”).<\/p>\n
WHEREAS, ActaMed and SBCL entered into a Services Agreement on
\nDecember 31, 1997 (“Services Agreement”) and desire to amend same in connection
\nwith the merger a subsidiary of Healtheon Corporation with and into ActaMed,
\nwith the result that ActaMed will become a wholly-owned subsidiary of Healtheon.<\/p>\n
NOW THEREFORE, in consideration of the premises and the mutual
\npromises contained herein, the parties, intending to be legally bound, agree as
\nfollows:<\/p>\n
1 DEFINITIONS.<\/p>\n
Capitalized terms used in this Amendment No. 1 and not otherwise defined
\nherein have the meanings set forth in the Services Agreement.<\/p>\n
2 AMENDMENTS.<\/p>\n
2.1 [*] REMOVED FROM [*]. Section IV.C is replaced in its entirety as
\nfollows:<\/p>\n
“1. An amount (the “FIRST VARIABLE FEE”) equal to (i) [*]
\n minus the aggregate of the amount billed to SBCL pursuant to Section
\n IV.B. above, excluding amounts attributable to any Provider office with
\n ProviderLink that is subsequently installed with the Scan Software or
\n ActaLab Software (the “FIRST TRANSACTION FEE AMOUNT”) prior to the [*]
\n (ii) [*] minus the sum of (A) the First Transaction Fee Amount for the
\n period from the date hereof to the [*] and (B) the amount paid pursuant
\n to clause (i) above; and (iii) [*] minus the sum of (A) the First
\n Transaction Fee Amount for the period from the date hereof to the [*] and
\n (B) the amount paid pursuant to clauses (i) and (ii) above.<\/p>\n
2. An amount (the “SECOND VARIABLE FEE”) equal to (i)
\n [*] minus the aggregate of the amount paid plus amounts owed (whether or
\n not billed) pursuant to Section IV.M.1 below (the <\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
“PIF AMOUNT”) prior to the [*]; (ii) [*] minus the sum of (A) the PIF
\n Amount for the period from the date hereof to the [*] and (B) the amount
\n paid pursuant to clause (i) above; and (iii) [*] minus the sum of (A) the
\n PIF Amount for the period from the date hereof to the [*] and (B) the
\n amount paid pursuant to clauses (i) and (ii) above; PROVIDED THAT if the
\n PIF Amount with respect to an annual period (other than the last such
\n annual period) is at least [*] of the aforementioned dollar amount for
\n that annual period, no payment shall be due under this Section IV.C.2 for
\n such annual period.<\/p>\n
3. An amount (the “THIRD VARIABLE FEE” and together
\n with the First Variable Fee and Second Variable Fee, the “VARIABLE
\n FEES”) equal to (i) [*] minus the aggregate of the amount billed to SBCL
\n attributable to any Provider office with ProviderLink that is
\n subsequently installed with the Scan Software or ActaLab Software (the
\n “THIRD TRANSACTION FEE AMOUNT”) prior to the [*]; (ii) [*] minus the sum
\n of (A) the Third Transaction Fee Amount for the period from the date
\n hereof to the [*] and (B) the amount paid pursuant to clause (i) above;
\n and (iii) [*] minus the sum of (A) the Third Transaction Fee Amount for
\n the period from the date hereof to the [*] and (B) the amount paid pursuant
\n to clauses (i) and (ii) above.<\/p>\n
4. Subject to Section IV.D, the Variable Fees shall be
\n paid annually within thirty (30) days after invoice therefor from
\n ActaMed or Healtheon, which shall be (i) submitted to SBCL within [*]
\n (ii) detail the calculation thereof, and (iii) reflect the Variable Fees
\n payable in respect of the most recently completed annual period only.
\n SBCL shall have Audit Rights with respect to any disputed amount of the
\n Variable Fees.”<\/p>\n
2.2 CONDITIONS TO BUSINESS ASSURANCE PAYMENTS. Section IV.D.1 is
\nhereby replaced in its entirety as follows:<\/p>\n
“1. With respect to all Variable Fees, (i) such fees shall
\n cease to be payable if ActaMed shall fail to satisfy any of the Key
\n Performance Standards, or (ii) such fees (excluding the portion of the
\n First Variable Fee attributable to Transaction Fees generated from PIF
\n Sites) for the applicable year shall not be payable (but shall be
\n treated as paid for purposes of calculation of any amount payable in
\n the following year) if any of the following shall occur:<\/p>\n
a. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites;<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
-2-<\/p>\n
b. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites; and <\/p>\n
c. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites.<\/p>\n
2.3 CONDITIONS TO BUSINESS ASSURANCE PAYMENTS. Section IV.D is hereby
\nfurther amended by adding the following Subsection 3 at the end of such Section:<\/p>\n
“3. With respect to the Third Variable Fee, such fees also
\n shall not be payable (but shall be treated as paid for purposes of
\n calculating any amount payable in the following year) if any of the
\n following shall occur: <\/p>\n
a. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites;<\/p>\n
b. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites; and <\/p>\n
c. As of [*] ActaMed shall fail to have at least [*]
\n ActaMed Sites.<\/p>\n
2.4 [*] COSTS. Section IV.J is amended to insert at the end thereof:
\n“SBCL is not responsible for paying any [*] incurred by ActaMed or a Provider
\nrelating to the provision of Lab EDI Services, including without limitation,
\nany [*], [*] and [*].”<\/p>\n
2.5 REMOVAL OF [*] HARDWARE PURCHASES. Section IV.K.2.b is
\nreplaced in its entirety as follows:<\/p>\n
“b. In addition, ActaMed shall provide, prior to the [*] up to
\n [*] PC Systems for New Sites or Replacement Fixed Fee Sites in excess of
\n the [*] set forth in (a) above. Notwithstanding the above, this
\n obligation shall be reduced by each PC System the cost of which is
\n reimbursed to SBCL subject to Section IV.K.1 above.”<\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
-3-<\/p>\n
2.6 EXCLUSIVE DEVELOPMENTS AMENDED. Section V.E is replaced in its
\nentirety as follows:<\/p>\n
“E. DEVELOPMENT WORK REQUESTED BY SBCL.<\/p>\n
1. SBCL may at any time request that ActaMed perform
\n additional development work. Subject to the terms of this Section
\n V.E, SBCL shall pay ActaMed for development services the work product
\n from which constitutes an Exclusive Development at no higher than the
\n then industry standard rates for similar services.<\/p>\n
a. SBCL shall be entitled to request in writing
\n that ActaMed perform development services the resulting work from which
\n shall be for the exclusive benefit of SBCL (an “EXCLUSIVE DEVELOPMENT”);
\n provided that, except as provided in Section V.E.1.b, SBCL shall not be
\n entitled to more than [*] Exclusive Development [*]. If ActaMed, before
\n 9:00 AM (EST) of the [*] after the date on which such request is
\n received by ActaMed, delivers to SBCL [*] then, notwithstanding that
\n SBCL’s request specified that the work would be an Exclusive Development,
\n the work so requested by SBCL shall be a “COMMON DEVELOPMENT.” Under no
\n circumstances shall any SBCL requested development work that is required
\n for purposes of complying with Applicable Laws, Regulations or any
\n Regulatory Change constitute an Exclusive Development. Any SBCL
\n requested work that is (i) classified as a Common Development in
\n accordance with this Section V.E.1.a, or (ii) required to comply with
\n Applicable Laws, Regulations or any Regulatory Change, shall not be
\n counted for purposes of applying the limit on Exclusive Developments
\n under this Section V.E.1.a.<\/p>\n
b. SBCL may request in writing that ActaMed
\n provide additional development work at any time. Such work shall
\n result in either a Common Development or Exclusive Development
\n pursuant to price and terms agreed to by the parties in accordance
\n with Section V.E.1.e below. Any work classified as an Exclusive
\n Development in accordance with this Section V.E.1.b shall not be
\n counted for purposes of applying the limit on Exclusive Developments
\n under this Section V.E.1.a.<\/p>\n
c. ActaMed will not use or license the use of
\n any Exclusive Development (without regard to whether it constitutes a
\n SCAN Development or ActaLab Software) other than in support of Lab EDI
\n Services. Subject to the ownership and license rights under the
\n License Agreement, both <\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
-4-<\/p>\n
ActaMed and SBCL shall be entitled to make any use of a Common
\n Development. The terms of the foregoing two sentences shall survive
\n termination of this Agreement for any reason. ActaMed may charge SBCL
\n [*] the work product from which constitutes a Common Development. Any
\n such charge shall be [*] and shall be separately stated on invoices sent
\n to SBCL.<\/p>\n
d. For purposes of this Section V.E, Exclusive
\n Developments shall include any Changes made pursuant to Section V.C
\n and paid for by SBCL by reason of Section V.C.4, to be designated as
\n Exclusive Developments in accordance with the procedures set forth in
\n this Section V.E.1.<\/p>\n
e. Within [*] days after receiving SBCL’s request
\n pursuant to Sections V.E.1.a or V.E.1.b, ActaMed shall notify SBCL of
\n ActaMed’s prices and terms (including estimated completion date) for
\n performing such development work, which prices and terms SBCL shall not
\n unreasonably reject. Within twenty (20) days after receiving ActaMed’s
\n notice, SBCL shall accept or reject ActaMed’s prices and terms for
\n performing the development work. If SBCL provides notice accepting (i)
\n in respect of requests under Section V.E.1.a, ActaMed’s prices and
\n terms, or (ii) in respect of requests under Section V.E.1.b (A)
\n ActaMed’s prices and terms, and (B) ActaMed’s designation of the work as
\n an Exclusive Development or Common Development, then ActaMed shall
\n perform such work (or cause such work to be performed) on the accepted
\n terms, and shall integrate the developed work into the ActaLab Software
\n or SCAN Developments, as applicable, and offer it as an additional
\n feature or function of Lab EDI Services, as soon as is reasonably
\n practicable.<\/p>\n
If SBCL provides notice that it does not accept ActaMed’s prices and
\n terms, SBCL and ActaMed shall negotiate in good faith an alternative
\n arrangement to the mutual satisfaction of the parties. If within [*]
\n SBCL and ActaMed cannot reasonably agree upon such an alternative
\n arrangement, then SBCL may engage a third party to perform the
\n development services for such work, subject to Section V.E.1.f. Work
\n performed by such a third party shall be (i) an Exclusive Development
\n without regard to the frequency limitation of Section V.E.1.a, subject
\n to Section V.E.1.f below, (ii) integrated by ActaMed into the ActaLab
\n Software or SCAN Developments, as applicable, as soon as is reasonably
\n practicable, and (iii) offered by ActaMed as an additional feature or
\n function of Lab EDI Services, as soon as is reasonably practicable. <\/p>\n
SBCL and ActaMed shall cooperate in developing acceptance standards
\n and processes (the “ACCEPTANCE PROCESS”) pursuant to which work
\n prepared by a third party, in accordance with industry standard
\n practices, shall be (i) reviewed, tested and modified, as necessary,
\n to conform with ActaMed’s professional standards, <\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
-5-<\/p>\n
the Performance Standards and ActaMed’s compliance obligations under
\n Article VI, (ii) integrated into the ActaLab Software or SCAN
\n Developments, as applicable, and (iii) offered by ActaMed as an
\n additional feature or function of Lab EDI Services; provided, SBCL
\n shall reimburse ActaMed (at no higher than the then industry standard
\n rates for similar services) for any costs or expenses incurred by
\n ActaMed in any such testing, integration and offering of an additional
\n feature or function of Lab EDI Services under this Section V.E.1.e.<\/p>\n
f. Any contract between ActaMed and SBCL (or a
\n third party developer and SBCL) for development of an Exclusive
\n Development shall allocate ownership of and other rights with respect
\n to the Exclusive Development, as between ActaMed and SBCL, in the
\n manner contemplated by the License Agreement and Development
\n Agreement, including, without limitation, Sections 2.1.4 and 2.3.2 of
\n the License Agreement.<\/p>\n
2. If, at any time, SBCL chooses to contract with
\n ActaMed for a dedicated services team from ActaMed to handle
\n development of Changes to the Network, the Licensed Materials, or
\n SBCL’s proprietary systems which are not required to be performed by
\n ActaMed pursuant to Section V.C and which are not requested pursuant
\n to Section V.E, ActaMed may elect whether to provide the dedicated
\n team and, if it so elects, shall do so only on terms and conditions
\n agreed to in advance by SBCL.”<\/p>\n
2.7 EXCLUSIVITY PERIOD. Section XIII.C.2 is hereby replaced in its
\nentirety as follows:<\/p>\n
2. At any time prior to [*] ActaMed shall not provide services
\n to any Other Lab at the SBCL Sites transferred to ActaMed pursuant to
\n the Purchase Agreement, including without limitation, to install or be
\n instrumental in [*] located at such sites which [*] for services [*] or
\n otherwise provide [*]. A full calendar month shall be added to the date
\n set forth in the preceding sentence for each month after [*] in which
\n ActaMed, determined as of the first day of each succeeding month, has
\n failed to complete the development of a fully functional ActaLab
\n Software (as described in the Development Agreement) and deploy a fully
\n tested, accepted and operating version of such software at one or more
\n ActaMed Sites.<\/p>\n
3 MISCELLANEOUS.<\/p>\n
3.1 ENTIRE AGREEMENT. This Amendment No. 1 constitutes the entire
\nunderstanding between the parties with respect to amendment to the Services
\nAgreement and supersedes all proposals, communications and agreements between
\nthe parties relating to such subject matter. <\/p>\n
[*] CONFIDENTIAL TREATMENT REQUESTED<\/p>\n
-6-<\/p>\n
No amendment, change, or waiver of any provision of this Amendment No. 1 will
\nbe binding unless in writing and signed by both parties.<\/p>\n
3.2 GOVERNING LAW. This Amendment No. 1 will be governed by and
\nconstrued in accordance with the laws of the State of Georgia applicable to
\ncontracts made and performed therein.<\/p>\n
3.3 SERVICES AGREEMENT PROVISIONS. All provisions of the Services
\nAgreement not modified by this Amendment No. 1 shall remain in full force and
\neffect. Subsections D, E and F of Section XVI of the Services Agreement shall
\napply to this Amendment No. 1 as if fully set forth herein.<\/p>\n
3.4 COUNTERPARTS. This Amendment No. 1 may be executed in one or more
\ncounterparts, each of which shall be deemed an original, but all of which
\ntogether shall constitute one and the same instrument.<\/p>\n
[INTENTIONALLY LEFT BLANK]<\/p>\n
-7-<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1
\nto the Services Agreement as of the date set forth above.<\/p>\n
ACTAMED CORPORATION<\/p>\n
By: \/s\/
\n —————————————
\n Its: President & CEO
\n ————————————–<\/p>\n
SMITHKLINE BEECHAM CLINICAL LABORATORIES,
\n INC.<\/p>\n
By: \/s\/
\n —————————————<\/p>\n
Its: President
\n ————————————–<\/p>\n
-8-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7645,7750],"corporate_contracts_industries":[9510,9407],"corporate_contracts_types":[9613,9620],"class_list":["post-42773","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-glaxosmithkline-plc","corporate_contracts_companies-healtheon-corp","corporate_contracts_industries-technology__programming","corporate_contracts_industries-drugs__pharma","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42773","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42773"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42773"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42773"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42773"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}