{"id":42787,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/services-development-and-license-agreement-healtheon-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"services-development-and-license-agreement-healtheon-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/services-development-and-license-agreement-healtheon-corp-and.html","title":{"rendered":"Services, Development And License Agreement – Healtheon Corp. and Brown & Toland Physician Services Org."},"content":{"rendered":"
\n                    SERVICES, DEVELOPMENT AND LICENSE AGREEMENT\n\n\n     This Agreement made this 30th day of September, 1997 (the \"Effective \nDate\"), is by and between Healtheon Corporation, a Delaware corporation with \noffices at 87 Encina Ave., Palo Alto, CA 94301 (\"Healtheon\") and Brown & Toland Physician Services Organization, with offices at 1388 Sutter Street, \nSuite 400, San Francisco, CA 94109 (\"B&T\").\n\n     WHEREAS, the parties have agreed to form an alliance to address the \ninformation technology needs of B&T, develop new applications designed to \naddress the needs of physician practice groups, and pursue other ventures \nwhich may be of mutual interest to the parties. The parties hereby agree as \nfollows:\n\n1.   DEFINITIONS.\n\n     1.1    \"ADDITIONAL APPLICATIONS\" shall mean those applications which are \ndeveloped by Healtheon, but excluding the Developed Applications, which are \ndesigned to run on the Healtheon Platform.\n\n     1.2    \"BTH DIVISION\" shall mean the division of Healtheon which shall \nbe organized to perform the Services hereunder.\n\n     1.3    \"B&T SERVICE\" shall mean B&T's physician practice management \nservices, including the practice management services listed on Exhibit A.\n\n     1.4    \"DEVELOPED APPLICATIONS\" shall mean those applications and any \nimprovements thereto which are developed by Healtheon hereunder and which are \ndesigned to run on the Healtheon Platform.\n\n     1.5    \"DEVELOPMENT WORK\"  shall mean the work to be performed hereunder \nby Healtheon to develop the Developed Applications.\n\n     1.6     \"END USER\" shall mean any employee, partner, agent or other \nrepresentative of a Physician Group who is authorized to access and use the \nB&T Service.\n\n     1.7    \"HEALTHEON PLATFORM\" shall mean the Healtheon Platform Software, \nas well as certain industry standard software applications, tools, and \nprocesses which provides the operating environment which enables the use of \nHealtheon developed applications as part of an on-line service which is \naccessible through the Internet by using industry standard web browsers.\n\n     1.8    \"HEALTHEON PLATFORM SOFTWARE\" shall mean the proprietary \noperating system and other software which has been developed by Healtheon \nwhich is part of the operating system of the Healtheon Platform.\n\n     1.9    \"PHYSICIAN GROUPS\" shall mean those physician practice groups for \nwhich B&T provides the B&T Service.\n\n     1.10   \"SERVICES\" shall mean those information technology services \ndescribed on Exhibit B.\n\n                                         -1-\n\n\n2.   PERFORMANCE OF THE SERVICES AND THE DEVELOPMENT WORK\n\n     2.1    PERFORMANCE OF THE SERVICES.  Healtheon, through personnel assigned\nto its BTH Division, shall perform the Services at certain sites controlled by\nB&T and\/or Healtheon.  The initial scope of the Services is set forth as Exhibit\nB.  Exhibit B may be amended with the written consent of the parties.  Healtheon\nshall perform the Services in accordance with the guidelines set forth in\nExhibit B.\n\n     2.2    PERFORMANCE OF THE DEVELOPMENT WORK. Healtheon shall design,\ndevelop and complete the Developed Applications. The specifications for each\nDeveloped Application shall be developed jointly and mutually approved by the\nparties.  In conjunction with the development of each set of specifications, the\nparties shall jointly develop a mutually agreeable detailed project plan.  Such\nproject plan shall describe, in a degree of detail reasonably satisfactory to\nthe parties, all tasks and responsibilities required for the successful and\ntimely completion of the development and delivery of the applicable Developed\nApplications.\n\n3.   PROJECT MANAGEMENT\n\n     3.1    PERSONNEL RESOURCES. Healtheon shall commit the number of qualified\nand experienced personnel which are necessary to perform its obligations under\nthis Agreement and as further outlined in the project plan(s).  Healtheon shall\nhave the sole right and obligation to hire, supervise, manage, contract, direct,\nprocure, perform or cause to be performed all work to be performed by Healtheon\nand its personnel hereunder. Healtheon may engage third parties to render\nservices in connection with the performance of the Services and\/or Development\nWork contemplated hereunder.\n\n     3.2    MANAGEMENT BOARD.   The parties shall establish a project executive\ncommittee consisting of three (3) senior level employees from each party (the\n\"Management Board\").  The Management Board shall have overall project oversight\nresponsibility and management, shall establish appropriate project leadership,\nand shall be responsible for resolving any matters arising under this Agreement\nand the Services and Development Work contemplated hereunder.\n\n     3.3    STATUS MEETINGS. The parties shall conduct status meetings on a\nmonthly basis detailing the performance of the Services and Development Work\nduring the period and the work planned to be performed during the upcoming four\n(4) week period.\n\n     3.4    CHANGES TO SERVICES, DEVELOPMENT WORK AND PROJECT PLAN. The scope\nof the Services, the Development Work and the project plans shall not be changed\nin any material respect without the mutual written agreement of the parties,\nwhich agreement shall not be unreasonably withheld.\n\n4.   OWNERSHIP AND LICENSE RIGHTS.\n\n     4.1    OWNERSHIP. B&T acknowledges and agrees that all of the work product\nproduced or developed by Healtheon in connection with Healtheon's performance of\nthe Services and\/or Development Work  to be provided hereunder, including, but\nnot limited to, all technology of any nature whatsoever, all notes, records,\ndrawings, designs, inventions, improvements, developments, discoveries, trade\nsecrets and any copyrightable material, including but not limited, to the\nDeveloped Applications, and all patentable inventions, conceived, made or\ndiscovered by Healtheon, solely or in collaboration with others, during the\nperiod of this Agreement and which relate in any manner to the Services and\/or\nDevelopment Work to be performed hereunder or which Healtheon may be directed to\nundertake or investigate, or which Healtheon may become associated with in\nperforming the Services and\/or the\n\n                                         -2-\n\n\nDevelopment Work, including any derivative works of any of the foregoing\n(collectively the \"Work Product\"), is the sole property of Healtheon.  Subject\nonly to the license rights to be granted by Healtheon to B&T in Section 5.1,\nbelow, B&T acknowledges and agrees that Healtheon shall have all proprietary\nrights in and to the Work Product, including, without limitation, all\ncopyrights, patents and trade secret rights, all moral rights, all contract and\nlicensing rights, and all claims and causes of action of any kind with respect\nto any of the foregoing, whether now known or hereafter to become known, and\nthat Healtheon shall have the sole and exclusive right to use, modify and\nexploit the Work Product in any manner that Healtheon may choose.\n\n     4.2    PROPRIETARY NOTICES. B&T shall not remove or alter any trademark,\ntrade name, copyright, or other proprietary notices, legends, symbols, or labels\nappearing on or in materials pertaining to the Work Product.  Each portion of\nthe Healtheon documentation reproduced by B&T shall include the intellectual\nproperty notice or notices appearing in or on the corresponding portion of such\nmaterials as delivered by Healtheon hereunder.\n\n5.   LICENSE AND SERVICE RIGHTS.\n\n     5.1    LICENSE RIGHTS. Healtheon grants to B&T a nonexclusive and\nnontransferable, fully-paid, right and license, exercisable at B&T's operational\nsite(s), to: (i) use the Developed Applications, in object code form, as part of\nB&T's physician practice management services which are offered to the Physician\nGroups; and (ii) use the Work Product (excluding the Developed Applications)\ndelivered to B&T hereunder in conjunction with the operations of B&T's physician\npractice management services.  B&T shall not use, sublicense or otherwise\ndistribute the Work Product, including the Developed Applications, in any other\nmanner except as expressly stated herein. Notwithstanding the foregoing, nothing\nherein shall be construed so as to limit or interfere with B&T's ability to use\nthe Developed Applications as part of the B&T Service to be offered to Physician\nGroups, and to enable access and use by End Users in conjunction with the B&T\nService.\n\n     5.2    OPTION TO LICENSE HEALTHEON PLATFORM SOFTWARE. Healtheon hereby \nagrees to grant to B&T a nonexclusive and nontransferable, right and license, \nexercisable at B&T's operational site(s), to use the Healtheon Platform \nSoftware as part of the Healtheon Platform to be deployed at B&T's primary \noperational site(s) to run the Developed Applications (and any Additional \nApplications which may be licensed from Healtheon), as part of the B&T \nService to be offered to Physician Groups, and to enable access and use by \nEnd Users in conjunction with the B&T Service. The applicable one-time, \nup-front fees for such license(s) shall be [*] net of any third-party royalty \nobligations.  B&T shall not have the right to use, sublicense or otherwise \ndistribute the Healtheon Platform Software in any other manner except as \nexpressly stated herein. Notwithstanding the foregoing, nothing herein shall \nbe construed so as to limit or interfere with B&T's ability to use the \nDeveloped Applications (and any Additional Applications which may be licensed \nfrom Healtheon) as part of the B&T Service to be offered to Physician Groups, \nand to enable access and use by End Users in conjunction with the B&T \nService.  B&T shall be solely responsible for the costs associated with \nacquiring all third-party hardware and software and implementation services \nnecessary to deploy the Healtheon Platform at B&T's sites.\n\n     5.3    OPTION TO LICENSE ADDITIONAL APPLICATIONS. Healtheon hereby agrees\nto grant to B&T a nonexclusive and nontransferable, right and license,\nexercisable at B&T's primary operational site(s), to use the Additional\nApplications as may be licensed at the option of B&T, as part of the B&T Service\nto be offered to Physician Groups, and to enable access to End Users in\nconjunction with the B&T Service.\n\n[*] CONFIDENTIAL TREATMENT REQUESTED\n\n                                         -3-\n\n\nThe one-time up-front fee(s) for such license(s) shall be [*] to each such \nAdditional Application as may be licensed by B&T, net of any third-party \nroyalty obligations.  B&T shall not use, sublicense or otherwise distribute \nthe Additional Applications in any other manner except as expressly stated \nherein. Notwithstanding the foregoing, nothing herein shall be construed so \nas to limit or interfere with B&T's ability to use the Additional \nApplications which may be licensed from Healtheon as part of the B&T Service \nto be offered to Physician Groups, and to enable access and use by End Users \nin conjunction with the B&T Service.\n\n     5.4    OPTION TO USE HEALTHEON SERVICE.  If, following the completion of\nthe Developed Applications, B&T does not elect to exercise its license rights\nunder Section 5.1, Healtheon hereby agrees to enter into a Healtheon Service\nAgreement with B&T whereby Healtheon shall provide B&T and its Physician Groups\nwith access to an on-line service which includes the Developed Applications.\nHealtheon shall offer such service to B&T and its Physician Groups at [*].\n\n6.   THIRD-PARTY TECHNOLOGY AND LICENSE RIGHTS\n\n     6.1    THIRD-PARTY TECHNOLOGY AND LICENSE RIGHTS.  In order to perform the\nServices and\/or Development Work contemplated hereunder, Healtheon may need to\nhave access to the third-party technology and software listed on Exhibit C (the\n\"Third-Party Technology and Software\") which is licensed and\/or deployed by B&T.\nB&T hereby agrees to use its best efforts to obtain, at its own expense, all\nnecessary consents, licenses and\/or assignment which may be necessary in order\nfor Healtheon to perform the Services and\/or Development Work, as contemplated\nhereunder.  In the event that B&T fails to obtain any such necessary consent,\nlicense or assignment, B&T shall promptly notify Healtheon in writing and the\nparties will work together to attempt to find a reasonable accommodation to\nallow Healtheon to proceed with the work contemplated hereunder without\nviolating any third party rights.  In the event that the parties cannot find a\nreasonable accommodation, neither party shall have any obligation to proceed\nwith any work which would infringe any third-party proprietary rights.\nHealtheon shall use reasonable efforts to cooperate with B&T to assist B&T in\nobtain any necessary consents, licenses and\/or assignments.\n\n     6.2    B&T TECHNOLOGY AND LICENSE RIGHTS.  B&T hereby grants to Healtheon\na right and license to use, modify and copy all technology and software owned by\nB&T which is necessary for Healtheon to perform its obligations hereunder.\n\n7.   FEES AND PAYMENT\n\n     7.1    FEES AND EXPENSES, PAYMENT. B&T shall pay Healtheon the Fees and\nExpenses, as set forth in Exhibit D for the Services and the Development Work to\nbe performed hereunder (the \"Fees\").  Healtheon shall submit invoices to B&T on\na monthly basis for the Fees when due. Invoices shall be due and payable within\nten (10) days after receipt.  The Fees may be changed with the written consent\nof the parties.\n\n     7.2    OTHER EXPENSES. Healtheon shall have sole responsibility for\npayment of compensation to its personnel and shall pay and report, for all\npersonnel assigned to perform services hereunder, federal and state income tax\nwithholding, social security taxes, and unemployment insurance applicable to\nsuch personnel. Healtheon shall bear sole responsibility for any health or\ndisability insurance, retirement benefits, or other welfare or pension benefits\n(if any) to which its own personnel may be entitled.\n\n[*] CONFIDENTIAL TREATMENT REQUESTED\n\n                                         -4-\n\n\n     7.3    THIRD-PARTY HARDWARE AND SOFTWARE.  In the event that it is\nreasonably necessary for Healtheon to purchase or license any third-party\nhardware and\/or software in order to perform the Services and\/or the Development\nWork, the Management Board shall determine whether such third-party hardware\nand\/or software should be purchased and\/or licensed by B&T or Healtheon and how\nthe cost shall be allocated between the parties.\n\n     7.4    TAXES.  All Fees and payments are exclusive of all taxes, duties or\nlevies, however designated or computed.  B&T shall be responsible for and pay\nall taxes upon payments due under this Agreement including, but not limited to,\nsales, use, or value-added taxes, duties, withholding taxes and other\nassessments now or hereafter imposed on or in connection with this Agreement,\nexclusive of taxes based upon Healtheon's net income, except as noted in Section\n7.2.\n\n8.   CONFIDENTIALITY\n\n     8.1    CONFIDENTIAL INFORMATION.  The parties acknowledge that in the\ncourse of performing under this Agreement, each party may be exposed to or\nacquire information which is proprietary to or confidential to the other party,\nits suppliers or customers. Any and all such information of one party in any\nform obtained by the other party or its employees, agents, or representatives in\nthe performance of this Agreement shall be deemed to be confidential and\nproprietary information of such party. The parties agree to hold such\ninformation in strict confidence, to only permit use of such information by its\nemployees and agents having a need to know in connection with performance under\nthis Agreement, and not to copy, reproduce, sell, assign, license, market,\ntransfer, give or otherwise disclose the confidential information of the other\nparty to third parties or to use such information for any purposes whatsoever,\nwithout the express written permission of the other party and to advise each of\ntheir employees, agents, and representatives of their obligations to keep such\ninformation confidential. All such confidential and proprietary information\ndescribed herein in whatever form, including but not limited to the Work\nProduct, is hereinafter collectively referred to as \"Confidential Information.\"\nWork Product shall be deemed to be the Confidential Information of Healtheon.\nB&T hereby agrees that it will not disclose any Confidential Information of\nHealtheon to any person or entity who is not an employee of B&T, without\nHealtheon's prior written consent and subject to such third party entering into\na confidentiality agreement with Healtheon in a form acceptable to Healtheon.\n\n     8.2    EXCEPTIONS TO CONFIDENTIAL INFORMATION.  Notwithstanding the\nobligations set forth in Section 8.1 above, the confidentiality obligations of\nHealtheon and B&T shall not extend to information that (i) was, as of the time\nof its disclosure, or thereafter becomes part of the public domain through a\nsource other than receiving party; (ii) the receiving party can demonstrate was\nknown to the receiving party as of the time of its disclosure; (iii) the\nreceiving party can demonstrate was independently developed by the receiving\nparty without use of the Confidential Information; or (iv) the receiving party\ncan demonstrate was subsequently learned from a third party not under a\nconfidentiality obligation to the providing party.  In the event that a\nreceiving party is required to disclose certain Confidential Information of a\ndisclosing party pursuant to court order or government authority, the receiving\nparty shall provide reasonable notice to the disclosing party prior to such\ndisclosure and shall cooperate with the disclosing party to obtain protection\nfrom such disclosure.\n\n9.   REPRESENTATIONS AND WARRANTIES\n\n     9.1    WARRANTIES FOR SERVICES AND THE DEVELOPMENT WORK. Healtheon hereby\nrepresents and warrants that (i) each person assigned to perform the Services\nand\/or the Development Work shall have\n\n                                         -5-\n\n\nthe proper skill, training and background so as to be able to perform the such\nServices and\/or  Development Work in a competent and professional manner and\n(ii) all Services and\/or Development Work and any work product and other\nmaterials or documentation delivered under this Agreement shall have been\ncompleted in a thorough and professional manner.  In the event of a breach of\nHealtheon's representations and warranties under this Section 9.1, Healtheon's\nsole obligation shall be to promptly correct any defects identified by B&T,\nprovided that B&T provides Healtheon with written notice within thirty (30) days\nof becoming aware of the defective work.\n\n     9.2    THIRD-PARTY TECHNOLOGY.  B&T hereby represents and warrants that it\nwill use its best effort to obtain all necessary consents, licenses and\/or\nassignments with respect to the third-party technology software which is\nlicensed and\/or deployed by B&T and which are necessary in order for Healtheon\nto perform the Services and Development Work to be performed hereunder.  In the\nevent that B&T has failed to obtain any necessary consent, license or\nassignment, B&T shall have notified Healtheon in writing.\n\n     9.3    AUTHORITY.  Healtheon and B&T each hereby represents and warrants\nto the other that it is duly organized and validly existing under the laws of\nthe jurisdiction in which it is organized, in good standing therein, and has the\npower to enter into this Agreement and to perform its obligations hereunder and,\nfurthermore, that the performance by it of its obligations under this Agreement\nhas been duly authorized by all necessary corporate or other action and will not\nviolate any provision of law or regulation or of any corporate charter or\nbylaws.\n\n     9.4    NO IMPLIED WARRANTIES.  THE WARRANTIES STATED ABOVE IN THIS SECTION\n9 ARE THE ONLY WARRANTIES MADE BY EITHER PARTY. HEALTHEON DOES NOT MAKE AND\nHEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT\nLIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.\nB&T ACKNOWLEDGES THAT COMPLEX COMPUTER SOFTWARE AND SERVICES, SUCH AS THE\nDEVELOPED APPLICATIONS AND THE SERVICES, ARE RARELY FREE OF DEFECTS OR ERRORS\nAND HEALTHEON DOES NOT WARRANT THE SAME.\n\n10.  LIMITATION OF LIABILITY\n\n     10.1   EXCLUSION OF CERTAIN DAMAGES. [*] UNDER NO CIRCUMSTANCES AND \nUNDER NO LEGAL THEORY SHALL EITHER PARTY HAVE ANY LIABILITY FOR LOSS OF \nPROFITS, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF \nSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.\n\n     10.2   LIMITATION OF LIABILITY.  [*] IN NO EVENT SHALL EITHER PARTY'S \nAGGREGATE LIABILITY FOR ANY MATTER ARISING OUT OF THE SUBJECT MATTER OF THIS \nAGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF THE \nFEES PAID FOR THE PARTICULAR SERVICES OR DEVELOPMENT WORK WHICH GAVE RISE TO \nSUCH CLAIM UNDER THIS AGREEMENT. The remedies provided herein are the \nparties' sole and exclusive remedies.\n\n[*] CONFIDENTIAL TREATMENT REQUESTED\n\n                                         -6-\n\n\n11.  INDEMNIFICATION\n\n     11.1   INDEMNIFICATION.  Healtheon agrees to hold harmless and defend B&T\nfrom and against any and all claims, actions, or proceedings, arising out of any\nactual or alleged infringement by Healtheon of any copyright or any U.S. patent,\ntrademark, or trade secret right or other proprietary right, with respect to the\nWork Product, as delivered by Healtheon hereunder and used by B&T in accordance\nwith the terms of this Agreement.  B&T agrees to hold harmless and defend\nHealtheon from and against any and all claims, actions, or proceedings, arising\nout of any actual or alleged infringement by Healtheon of any copyright or any\nU.S. patent, trademark, or trade secret right or other proprietary right which\narises out of B&T's failure to obtain any necessary consents, licenses, or\nassignments with respect to any third-party technology or software which has\nbeen licensed and\/or deployed by B&T and which is necessary in order for\nHealtheon to perform its obligations hereunder (\"B&T Third-Party Technology\nRights\").\n\n     11.2   LIMITATIONS.  Healtheon shall have no indemnity obligation for\nclaims resulting from or alleged to result from (i) development work performed\nby Healtheon in compliance with B&T's specifications where Healtheon's method of\ncompliance has been compelled by the terms of B&T's specifications; or (ii)\nB&T's use of the Work Product in combination with any hardware or software not\nfurnished by or authorized by Healtheon hereunder, if such combination is the\ncause of such claim, or any modifications which have been made by B&T.  In\naddition, Healtheon shall have no indemnity obligation for claims of\ninfringement resulting or alleged to result from B&T's failure within a\nreasonable time frame to implement any replacement or modification which\nconforms to the requirements of Section 11.4 herein. B&T shall have no indemnity\nobligations for claims resulting from or alleged to result from Healtheon's\nbreach of any B&T Third-Party Technology Rights where appropriate consents,\nlicenses and\/or assignments were obtained and Healtheon failed to adhere to the\nterms of applicable consents, licenses and\/or assignments.\n\n     11.3   PAYMENT AND COOPERATION. Subject to the limitations set forth in\nSection 11.2 above, the Indemnifying Party shall pay all damages settlements,\nexpenses, costs and reasonable attorney's fees, incurred by the Indemnified\nParty arising out of the matters set forth in Section 11.1 provided that such\npayment shall be contingent on: (i) prompt notice to the Indemnifying Party in\nwriting of such claim to enable it to defend or mitigate the same; (ii)\ncooperation by the Indemnified Party with the Indemnifying Party in the defense\nand or settlement thereof, at the Indemnifying Party's  expense; and (iii)\nallowing the Indemnifying Party to control the defense and all related\nsettlement negotiations.\n\n     11.4   REMEDY.  If, in the event of an infringement action pertaining to\nthe Work Product and B&T's use of the Work Product is disrupted, Healtheon\nshall, at its option, (i) provide B&T with access to software which is\nfunctionally equivalent to the infringing elements of the Work Product, without\nadditional charge; (ii) modify the infringing portions of the Work Product to\navoid the infringement; or (iii) obtain a license for B&T to continue use of the\nWork Product for the term of this Agreement and pay for any additional fee\nrequired for such license, subject to B&T's approval, which shall not be\nunreasonably withheld.\n\n     11.5   LIMITATIONS.  SECTION 11 SETS FORTH THE PARTIES' SOLE OBLIGATION,\nAND THE SOLE RECOURSE AGAINST THE OTHER PARTY IN THE EVENT OF ANY CLAIM OF\nINFRINGEMENT OF THIRD PARTY  INTELLECTUAL PROPERTY RIGHTS.\n\n                                         -7-\n\n\n12.  TERM AND TERMINATION\n\n     12.1.  TERM.  This Agreement shall continue for a fixed term of three (3)\nyears from the date hereof unless terminated earlier under the provisions of\nthis Section 12 or by the mutual written agreement of the parties.\nNotwithstanding the foregoing, the licenses granted in Section 5.1 shall\ncontinue for a term of [*] from the Effective Date and shall renew\nautomatically for successive additional [*] terms unless terminated earlier\npursuant to Section 12.3 or 12.4, or by the mutual written consent of the\nparties.\n\n     12.2   TERMINATION FOR CONVENIENCE. Either party may terminate this\nAgreement upon one hundred twenty days (120) prior written notice to the other\nfor any reason.\n\n     12.3   TERMINATION BY EITHER PARTY FOR DEFAULT.  If either party defaults\nin the performance of any material provision of this Agreement, then the\nnon-defaulting party may give written notice to the defaulting party that if the\ndefault is not cured within thirty (30) days of such notice the Agreement will\nbe terminated.  If the non-defaulting party gives such notice and the default is\nnot cured during the thirty (30) day period, then the Agreement shall\nautomatically terminate at the end of that period.\n\n     12.4   INSOLVENCY.  Either party may terminate this Agreement by written\nnotice to the other, and may regard the defaulting party as in default of this\nAgreement, if the defaulting party becomes insolvent, makes a general assignment\nfor the benefit of creditors, suffers or permits the appointment of a receiver\nfor its business or assets, becomes subject to any proceeding under any\nbankruptcy or insolvency law whether domestic or foreign, or has wound up or\nliquidated, voluntarily or otherwise.\n\n     12.5   EFFECT OF TERMINATION. The provisions of Sections 7(with respect to\nFees and other payments which were due and payable as of the date of\ntermination), 4, 8, 10, 11, and 13 (to the extent applicable) shall survive the\ntermination of this Agreement for any reason.  All other rights and obligations\nof the parties shall cease upon termination of this Agreement.  In the event of\na termination, neither party shall be entitled to any refund of the fees paid or\ncost incurred for the development performed hereunder. Provided that this\nAgreement is not terminated pursuant to Section 12.4 pursuant to B&T's\ninsolvency, upon termination, Healtheon shall deliver to B&T a copy of (i) each\nDeveloped Application which has been completed as of the date of termination, in\nobject code form, and the related user documentation, and (ii) all portions of\nDeveloped Applications which were under development but not yet completed as of\nthe date of termination, in object code form, and the related user\ndocumentation, if any.  Materials delivered pursuant to Section 12.5(ii) shall\nbe delivered on an \"as-is\" basis.\n\n     12.6   RETURN OF MATERIALS. Within thirty (30) days after the termination\nof this Agreement, each party shall return to the other, all Confidential\nInformation, and other material of any kind which is the property of the other\nparty.\n\n13.  GENERAL\n\n     13.1   NO EXCLUSIVITY OR RESTRICTION ON OTHER ACTIVITY.  Except as\nexpressly set forth in this Agreement, nothing herein shall preclude either\nparty from entering into agreements to obtain similar services or development\nwork from third parties or from providing similar services or development work\nto third parties.\n\n[*] CONFIDENTIAL TREATMENT REQUESTED\n\n\n                                         -8-\n\n\n     13.2   RELATIONSHIP OF PARTIES.  The relationship of the parties shall be\nthat of independent contractors. Neither party will represent that it has any\nauthority to assume or create any obligation, express or implied, on behalf of\nthe other party, or to represent the other party as agent, employee, or in any\nother capacity, except as specifically provided herein.\n\n     13.3   BINDING EFFECT; ASSIGNMENT.  This Agreement shall be binding on and\ninure to the benefit of the respective parties and their permitted successors\nand assigns. Neither party shall not transfer, assign, sublicense or subcontract\nany right or obligation hereunder, except as expressly provided herein.\n\n     13.4   NO WAIVER.  Either party's failure to exercise any right under this\nAgreement shall not constitute a waiver of any other terms or conditions of this\nAgreement with respect to any other or subsequent breach, nor a waiver by such\nparty of its right at any time thereafter to require exact and strict compliance\nwith the terms of this Agreement.\n\n     13.5   NOTICES.  All notices or other communications which are required or\npermitted to be given hereunder shall be in writing and shall be sent to the\naddress of the recipient set forth below or such other address as the recipient\nmay designate by notice given in accordance with the provisions of this Section\nwith copies to:\n\nIn the case of Healtheon:               In the case of B&T:\n\n     Healtheon Corporation              Brown & Toland\n     87 Encina Avenue                   1388 Sutter Street, Suite 400\n     Palo Alto, California 94302        San Francisco, CA 94109\n     Attn: President                    Attn: President\n     Copy to: General Counsel           Copy to: General Counsel\n\nAny such notice shall be delivered by either (i) first class registered or\ncertified airmail, postage prepaid, and shall be deemed to have been served\nforty-eight (48) hours after posting; or (ii) express courier service, service\nfee prepaid, and shall be effective upon delivery.\n\n     13.6   APPLICABLE LAW.  This Agreement shall be governed by and construed\nin accordance with the laws of the State of California.\n\n     13.7   SEVERABILITY.  The invalidity of one or more phrases, sentences,\nclauses or articles contained in this Agreement shall not affect the remaining\nportions of this Agreement or any part thereof; and in the event that one or\nmore phrases, sentences, clauses or articles shall be declared void or\nunenforceable this Agreement shall be amended to include only such portions of\nsuch phrases, sentences, clauses or articles that are not invalid, void or\nunenforceable.\n\n     13.8   ENTIRE AGREEMENT; AMENDMENTS.  This Agreement, along with the\nExhibits attached hereto, sets forth the entire agreement between the parties\nand supersedes any other prior proposals, agreements and representations between\nthem related to its subject matter, whether written or oral.  No modifications\nor amendments to this Agreement shall be binding upon the parties unless made in\nwriting and duly executed by authorized officials of both parties.\n\n\n                                         -9-\n\n\n\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed\nas of the day and year first written above.\n\n\n       Healtheon Corporation                 Brown & Toland Physician\n                                             Services Organization\n\n\n\nBy: \/s\/                                    By: \/s\/\n   ---------------------------------          -------------------------------\n\nTitle: President and CEO                   Title: President\n      ------------------------------             ----------------------------\n\nDate:                                      Date:\n      ------------------------------             ----------------------------\n\n\n                                         -10-\n\n\n\n                                     EXHIBIT A\n\n                                    B&T SERVICE\n\n\"B & T Services\" shall mean B & T's physician practice, physician group\npractice, and IPA management services which include, but not be limited to, the\nfollowing services:\n\n-    Claims processing, adjudication, eligibility, and encounter data\n-    Risk pool management\n-    Utilization management\n-    Authorization and referral management\n-    Care management including inpatient and outpatient case management\n-    Inpatient physician program management\n-    Disease management and wellness programs\n-    Provider credentialling\n-    Health plan member marketing\n-    Provider relations\n-    Health plan and provider contracting\n-    Quality management\n-    Practice management including office management, billing and collections\n-    Financial services including accounting, audit, budget, financial\n     reporting, and taxes\n-    Medical group and IPA administration\n-    Capitation management\n-    Health Plan Member services\n\nwhich are offered to \"Physician Groups.\n\n\n                                         -11-\n\n\n\n                                     EXHIBIT B\n\n                                      SERVICES\n\n\n-    Operate, maintain and enhance B&T applications\n-    Operate and maintain B&T hardware and software infrastructure, network and\n     desktop environment\n-    Provide technical support to internal and external B&T users\n-    Provide support for B&T new site implementations\n       -    project planning and management\n       -    solution design\n       -    installation of hardware and software\n       -    user technical support and training\n\n\n                                         -12-\n\n\n                                      EXHIBIT C\n\n                         Third-Party Technology and Software\n\n\n                                         -13-\n\n\n\n                                     EXHIBIT D\n\n                                 FEES AND EXPENSES\n\n\n1.   Fee and Expenses for Services\n\nB&T will pay [*] of all \"cost\" (as defined below) incurred by Healtheon in\nperforming the Services.\n\n2.   Fee and Expenses for Development Work\n\nB&T will pay [*] of all \"cost\" (as defined below) incurred by Healtheon in\nperforming the Development Work.\n\n\nDEFINITION OF COST\n\nCost will include Healtheon's \"fully loaded\" cost (which include payroll,\nbenefit, support services, corporate overhead and other appropriate expenses)\nfor all full time employees assigned to the BTH Division, and all direct\nexpenses (consultants, contractors, recruiting expenses and fees, outside\nservices, travel, etc.).  For Healtheon's employees that are not assigned full\ntime to the Division, they will charged their time performing or supporting the\nServices based on a set rate, which is subject to change based on the cost\nstructure of Healtheon.  The initial rates are:-\n\nLevel 1   [*] per hour\nLevel 2   [*] per hour\nLevel 3   [*] per hour\n\nFor Healtheon's employees that are not involved in this project, they will\ncharge their time providing short term consulting services to this project or\nB&T based on [*].  The current rates are :-\n\nLevel 1   [*] per hour\nLevel 2   [*] per hour\nLevel 3   [*] per hour\n\nCost for additional capital equipment or computer processing needed to perform\nthe Services or Development Work will be paid by B&T.\n\n[*] CONFIDENTIAL TREATMENT REQUESTED\n\n                                         -14-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7750],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42787","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-healtheon-corp","corporate_contracts_industries-technology__programming","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\/42787","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=42787"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42787"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42787"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42787"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}