{"id":42826,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-sale-license-and-development-agreement-empower-health.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-sale-license-and-development-agreement-empower-health","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-sale-license-and-development-agreement-empower-health.html","title":{"rendered":"Software Sale, License and Development Agreement &#8211; Empower Health Corp. and HealthMagic Inc."},"content":{"rendered":"<pre>\n               SOFTWARE SALE, LICENSE AND DEVELOPMENT AGREEMENT\n\nThis is a Software Sale, License and Development Agreement (\"Agreement\") dated\nas of January 20, 1999, (the \"Effective Date\") by and between Empower Health\nCorporation (\"EHC\"), a Texas corporation having a place of business at 8920\nBusiness Pass Drive, Austin, Texas 78759 and HealthMagic, Inc. (\"HMI\"), a\nDelaware corporation having a principal place of business at 1444 Wazee Street,\nSuite 210, Denver, Colorado 80202 (individually a \"party\" and collectively, the\n\"parties\").\n\n     In consideration of the obligations stated in this Agreement, and other\ngood and valuable consideration received by each of the parties, the parties\nagree as follows:\n\n--------------------------------------------------------------------------------\nPART I.   PURPOSE AND SCOPE OF AGREEMENT; DEFINITIONS\n\n1.   PURPOSE AND SCOPE OF AGREEMENT\n\nA.   HMI is a corporation engaged in developing, marketing and providing\ninnovative Internet-enabled health information technology systems and\napplications including, without limitation, the Lifelong Health Record or \"LHR\"\n(as further defined below).  EHC is a corporation engaged in the business of\ndeveloping, marketing and maintaining an integrated suite of Internet enabled\nconsumer oriented software applications and services including, but not limited\nto, Dr. Koop's Personal Medical Record System or \"PMR\" (as further defined\nbelow), Dr. Koop's Community and advertising and promotional services on the\nInternet at the web site http:\/\/www.drkoop.com (the \"EHC Web Site\").  The\n                         ---------------------                           \nparties have entered into this Agreement under which:  (i) EHC will sell Dr.\nKoop's Personal Medical Record System to HMI; (ii) HMI will further develop its\nexisting Web-Based LHR and develop a Client-Based LHR using PMR as a starting\npoint; (iii) HMI will grant EHC the right to \"frame\" or \"embed\" the Web-Based\nLHR into the EHC Web Site; (iv) HMI will grant EHC the right to use certain\nsoftware tools; and (v) HMI will grant EHC the right to use and distribute LHR\nin association with EHC Web Site.\n\n     The execution, delivery and effectiveness of this Agreement are contingent\nupon the simultaneous execution and delivery of:  (i) that certain Investment\nAgreement by and among Adventist Health System Sunbelt Healthcare Corporation\n(\"Adventist\"), EHC and HMI dated January 20, 1999; and (ii) that certain Master\nCommunity Partner Program Agreement by and between Adventist and EHC dated\nJanuary 20, 1999.\n\n2.   DEFINITIONS\n\n     Capitalized terms used in this Agreement shall have the meanings given\nbelow or in the context in which the term is used, as the case may be.\n\n______________________\n\nConfidential treatment has been requested for portions of this exhibit.  The\ncopy filed herewith omits the information subject to the confidentiality\nrequest.  Omissions are designated * * *.  A complete version of this exhibit\nhas been filed separately with the Securities and Exchange Commission.\n\n                                       1\n\n\n \nA.   \"Affiliate\" shall mean, with respect to a party to this Agreement, any\nentity that directly or indirectly controls, or is under common control with, or\nis controlled by, such party.  As used above, \"control\" (including, with its\ncorrelative meanings, \"controlled by\" and \"under common control with\") means\npossession, directly or indirectly, of the power to direct or cause the\ndirection of management or policies (whether through ownership of securities or\npartnership or other ownership interests, by contract or otherwise).\n\nB.   \"Acquired Assets\" shall mean the Acquired Product, the Acquired\nDocumentation and the Acquired Intellectual Property Rights in such Acquired\nAssets.\n\nC.   \"Acquired Documentation\" shall mean any and all documentation relating to\nor associated with the Acquired Product that EHC owns, to the best of EHC's\nknowledge, on the Effective Date.\n\nD.   \"Acquired Intellectual Property Rights\" shall mean all of the following as\nthey relate to the Acquired Assets:\n\n     (1)  All right, title and interest, under the laws of any country, in\npatents and applications for patents and any other government-issued indicia of\ninvention ownership;\n\n     (2)  All right, title and interest in all trade secret rights arising under\nthe laws of any country;\n\n     (3)  All rights of copyright and all other literary property and author\nrights (including moral rights) whether or not copyrightable, under the laws of\nany country, and all right, title and interest in all copyright registrations or\napplications for copyright registration;\n\n     (4)  All right, title and interest in all technical data (excluding data of\nEHC end users), whether or not protectable by patent, copyright or trade secret\nlaws; and\n\n     (5)  All right, title and interest in all causes of action arising under\nthe patent, copyright, trade secret or other laws of any jurisdiction, which\ncauses of action have not been asserted as of the Effective Date.\n\nE.   \"Acquired Product\" shall mean Dr Koop's Personal Medical Record System\n(\"PMR\") (including all present and predecessor versions thereof and all works in\nprogress relating to its correction, enhancement or modification), including\nboth source code and object code versions and all supplements, enhancements and\nmodifications thereto created by EHC or otherwise, and all audio and\/or visual\nelements.  In addition, Acquired Product includes the framework used for the\ndevelopment of PMR, whether stand-alone or web based.  HMI hereby acknowledges\nthat the PMR has not been completed and is not a fully functional software\nprogram.\n\nF.   \"Certifying Authority\" shall mean HMI or such other trusted third-party\ncentral administrator:  (i) willing to verify the identities of those to whom it\nissues certificates and their association with a given key; (ii) that have a\ntrustworthy public key (that is either publicized or provided with a certificate\nfrom a higher level Certifying Authority attesting to the validity of its public\nkey); (iii) whose subject identification requirements (e.g., driver's license,\nnotarized form, fingerprints) engender a high level of confidence to the\ncertified name-key binding; and (iv) that are capable of issuing Digital\nCertificates (including, without limitation, signing the Digital Certificate) to\nauthenticate the binding between the subject (end user's) name and the subject's\npublic key.\n\n                                       2\n\n\n \nG.   \"Client-Based Lifelong Health Record\" or \"Client-Based LHR\" shall mean\nHMI's proprietary client-based version of LHR made up of:  (i) proprietary\ninteractive web-browser compatible pages, or other programs, which are installed\nand executed locally on an end user's computer and contain functionality\nenabling end users to retrieve, document, track and populate their own personal\nhealth information; and (ii) a local \"Repository\" that is installed and executed\nlocally on the end user's computer and stores that end user's health data and\nsuch other information as mutually agreed upon by the parties within ninety (90)\ndays of the Effective Date (or failing mutual agreement through the binding\narbitration procedure described in Part VII.11.D).  The Client-Based LHR\nincludes any Updates, Releases, new Versions, modifications or derivative works\nof the Client-Based LHR produced by HMI or on HMI's behalf.\n\nH.   \"Digital Certificate\" shall mean a digital certificate as defined by the\nInternational Telecommunications Union (\"ITU-T\") X.509 standard, version 3.  As\na general matter, a Digital Certificate:  (i) is a document attesting to the\nbinding of a public key to an individual or other entity; (ii) enables the\nverification of a claim that a specific public key does in fact belong to a\nspecific individual; and (iii) contains information including version, serial\nnumber, signature algorithm ID, issuer name (i.e., the Certifying Authority that\nissued the Digital Certificate), validity period, subject (user) name, subject\npublic-key information, issuer unique identifier, subject unique identifier,\nextensions and the signature of the Certifying Authority that issued the Digital\nCertificate on the foregoing.  Digital Certificates are stored on the subject's\n(end user's) computer.\n\nI.   \"Dr. Koop's Personal Medical Record\" or \"PMR\" shall mean EHC's proprietary\ndesktop application which includes, but is not limited to the Electronic Medical\nRecord module.\n\nJ.   \"End Users\" shall mean any hospitals, insurance companies or other entities\n(including their consumers) and individuals visiting the EHC Web Site.\n\nK.   \"End-User Data\" shall mean the information provided by end users or on\nbehalf of end users, with their authorization, in the process of using LHR.\nOwnership of End-User Data shall in no way be altered by this Agreement.\n\nL.   \"Health Talk Tool\" shall mean HMI's proprietary underlying infrastructure\nthat supports the construction of secure health applications that enable the\nsharing of sensitive information on the public Internet and World Wide Web.  Key\nfeatures enable a trusted identity for every person accessing sensitive\ninformation, the specification of security policies independent of the\napplication, the optional generation of the applications that enforce the\nsecurity policies, and the decentralized assignment of roles to employees of\nproviders and health plans.  Software deliverables include:  (i) the Visual\nHealthTalk Studio that enables the entry of meta-data; (ii) the generator\nitself; (iii) a tool for building implementations; (iv) Test Suite 98; (v) an\nAdministration Console; (vi) Charter Editor; and (vii) a Batch Enroller.  The\nHealth Talk Tool includes any and all Updates, Releases, new Versions,\nmodifications or derivative works of the Health Talk Tool produced by HMI or on\nHMI's behalf.\n\nM.   \"Health Vectors\" shall mean, for any particular LHR end user, collections\nof health-related data that profiles such end user in his or her role as a\nhealth care consumer which data is generated through the use of the Health\nVector software embedded in the LHR.  Different kinds of Health Vectors include,\nbut are not limited to:  (i) health and illness data (e.g., health status,\nsymptoms, important diagnoses, most recent encounters, medications, recent\ntreatments); (ii) interests and needs data (i.e., information used and requested\nby the consumer); (iii) demographic data (e.g., name, mailing address, gender,\nage, race); (iv) registration data (e.g., plan identification, member\nidentification and enrollment information); \n\n                                       3\n\n\n \nand (v) transaction data (i.e., a summary of the transactions encountered within\nthe service by the end user).\n\nN.   \"Health Vectors Tool\" shall mean HMI's proprietary software development\ntool which enables the tailoring of user\/computer interactions based on the\nuser's profile.  As of the Effective Date the profile includes age, gender and\nhealth interests but the Health Vectors Tool is architected to profile many\ndifferent dimensions each called a vector.  Based on the specific health profile\nthat is comprised of various health data, screens are assembled that contain\narticles, Weblinks and Preventive Guidelines tailored to the individual for\nvarious sections of a Web service.  Software deliverables include: (i) Content\nAttribute Studio; (ii) Active X DLL that represents the application; (iii)\nHealth Vector Publisher; and (iv) the associated data base schema. The Health\nVectors Tool includes any and all Updates, Releases, new Versions, modifications\nor derivative works of the Health Vectors Tool produced by HMI or on HMI's\nbehalf.\n\nO.   \"Health Tool Application\" shall mean any application created using the\nHealth Talk Tool or the Health Vectors Tool.\n\nP.   \"Lifelong Health Record\" or \"LHR\" shall mean the Web-Based LHR, EHC LHR (as\ndefined in Part IV.3.B) and the Client-Based LHR.\n\nQ.   \"Personal Medical Record\" shall have the meaning provided in Exhibit D to\nthis Agreement.\n\nR.   \"Release Number\" shall mean the second decimal place in the number assigned\nto any software by the supplier of such software (e.g., the Release Number of\nXYZ 6.1.23 would be 1).  A new \"Release\" means a software upgrade that adds new\nfeatures, corrects bugs or defects and in which the Release Number is\nincremented while the Version Number remains unchanged (e.g., XYZ 6.2.0 would be\na new Release as compared to XYZ 6.1.23).\n\nS.   \"Update Number\" shall mean the third decimal place in the number assigned\nto any software by the supplier of such software (e.g. the Update Number of XYZ\n6.2.23 would be 23).  A new \"Update\" means a software upgrade that provides bug\nfixes or other minor corrections in which the Version Number and Release Number\nremain unchanged and, if the number assigned to the software by the supplier,\nthe Update Number is incremented (e.g. XYZ 6.1.24 would be a New Update as\ncompared to XYZ 6.2.23).\n\nT.   \"Version Number\" shall mean the first decimal place in the number assigned\nto any software by the supplier of such software (e.g., the Version number of\nXYZ 6.2.23 would be 6).  A new \"Version\" means a major software upgrade that\nadds substantial new features or other significant changes in which the Version\nNumber is incremented (e.g., XYZ 7.0.0 would be a new Version as compared to XYZ\n6.2.23).\n\nU.   \"Web-Based Lifelong Health Record\" or \"Web-Based LHR\" shall mean:  (i) HMI\nproprietary interactive Internet-enabled pages which reside on HMI servers, that\nare accessible from HMI licensed web sites containing links to such pages\nthrough a digital certification process (\"LHR Enabled Sites\") (the EHC Web Site\nwill be an example of such a web site), and contain functionality enabling end\nusers to retrieve, document, track and populate their own personal health\ninformation in a secure fashion from any LHR Enabled Site; and (ii) HMI's\nproprietary database or \"Repository\", housed on HMI's servers, that stores each\nend user's Health Vectors.  The Web-Based LHR includes any and all Updates,\nReleases, new Versions, modifications or derivative works of the Web-Based LHR\nproduced by HMI or on HMI's \n\n                                       4\n\n\n \nbehalf. Supported Versions (as defined in Part IV.3.C(3)) of Web-Based LHR shall\nreside on servers specifically designated to HMI at a Third-Party Secured Site\n(as defined in Part IV.2.B).\n\n--------------------------------------------------------------------------------\nPART II.  SALE OF ACQUIRED ASSETS\n\n1.   SALE, ASSIGNMENT AND TRANSFER OF ACQUIRED ASSETS TO HMI\n\nA.   EHC hereby irrevocably sells, assigns and transfers to HMI all of EHC's\nright, title and interest in and to the Acquired Assets.  This exclusive grant\nof rights shall include, but is not limited to, the rights to (i) offer, market,\npublish, reproduce, distribute, transmit, adapt, maintain, prepare derivative\nworks, sell, license or otherwise make use of the Acquired Assets (including,\nwithout limitation, all subsequent editions, revisions, supplements to, and\nversions of the Acquired Assets, regardless of length, nature or state of\ndevelopment) throughout the world in any form or medium and in any language, and\n(ii) to license or otherwise transfer to others the rights commensurate herewith\nin connection with the Acquired Assets.\n\nB.   As of the Effective Date, HMI shall have the right to obtain and hold in\nits own name any intellectual property rights in and to the Acquired Assets and\nall copies and derivative works made therefrom (which shall include, but not be\nlimited to, the right to file patent, copyright and trademark applications in\nthe U.S. and throughout the world for the Acquired Assets in the name of HMI).\nEHC hereby agrees that HMI may act as attorney-in-fact to execute any documents\nthat HMI deems necessary to record this grant with the U.S. Patent and Trademark\nOffice, the U.S. Copyright Office or elsewhere.  EHC agrees that it will execute\nany documents or take any other actions as may reasonably be necessary, or as\nHMI may reasonably request, to establish, confirm and defend HMI's ownership of,\nand intellectual property rights in and to, the Acquired Assets and all copies\nand derivative works made therefrom.  The cost of recording and registering\nownership rights in the Acquired Assets shall be borne solely by HMI.\n\nC.   As of the Effective Date, EHC shall deliver to HMI a complete set of all\ncomplete and partial copies of the Acquired Assets in all forms (including,\nwithout limitation, source code and object code for software components).  The\nsource code for the Acquired Product delivered shall contain such code,\nlibraries and other source components so that, when compiled, linked and\notherwise manipulated to create the runtime\/executable image for the Acquired\nProduct, creates a complete and fully operational run-time\/executable version of\nthe Acquired Product.  Notwithstanding the foregoing, EHC shall not be required\nto deliver any third party software development tools and third party components\nused in the creation of the Acquired Assets.\n\nD.   EHC reserves the right to request HMI to complete development of PMR in a\ncommercially reasonable manner, pursuant to a client opportunity.  In the event\nHMI elects to complete development of PMR pursuant to EHC's request, upon\ncompletion of development of PMR, HMI shall license use of PMR to EHC under the\nsame terms as LHR under this Agreement (including, without limitation, the\nrevenue sharing provisions set forth in Part VI which shall apply to PMR in the\nsame manner as they apply to LHR).  In the event HMI elects not to accept EHC's\nrequest, then HMI shall grant a license in and to PMR to EHC under commercially\nreasonable terms to complete PMR and use PMR, provided that such license shall\nbe subject to revocation in the event EHC does not proceed in a commercially\nreasonable manner to meet the client opportunity.\n\n                                       5\n\n\n \n2.   REPRESENTATIONS AND WARRANTIES BY EHC\n\n     Except as otherwise disclosed in Exhibit C.  EHC represents and warrants to\nHMI, as of the Effective Date, as follows:\n\nA.   EHC is the sole and exclusive legal and equitable owner of and holds good,\nclear and marketable right and title to the Acquired Product and Acquired\nDocumentation including, without limitation, all Acquired Intellectual Property\nRights in the Acquired Product and Acquired Documentation.  The Acquired Assets\nare not subject to a license (other than the licenses contained in this\nAgreement) and are not subject to any lien, security interest, royalty\nobligation or other interest or claim of any kind.  EHC has the sole right to\nbring actions for infringement of any Acquired Intellectual Property Rights in\nthe Acquired Product and Acquired Documentation.  Except for this Agreement,\nneither the Acquired Product, nor any Acquired Documentation are subject to any\nescrow.\n\nB.   EHC is a corporation duly organized and validly existing under the laws of\nTexas and the execution of this Agreement by EHC and the transactions\ncontemplated by this Agreement have been authorized by all necessary corporate\naction on the part of EHC and neither the execution of this Agreement by EHC,\nnor the transactions contemplated by this Agreement, nor compliance by EHC with\nany of its provisions, violates any judgment or order of any court, arbitrator,\nor administrative agency applicable to EHC or any of its properties or assets.\n\nC.   To the best of EHC's knowledge, there are no pending or threatened disputes\nor controversies with EHC's suppliers, customers, consultants, distributors and\nothers having business relations with EHC relating to the Acquired Assets, nor\nany valid basis for a dispute.\n\nD.   To the best of EHC's knowledge, there are no suits, proceedings, or\ninvestigations pending or threatened against EHC before any court, arbitrator or\nagency based upon or challenging the ownership or use of the Acquired Assets,\nincluding claims for breach of warranty or products liability.  There is no\njudgment or order entered against EHC which might have a material adverse effect\non the value of the Acquired Assets to HMI.  No third party is asserting the\ninvalidity of this Agreement or seeking to prevent any of the transactions\ncontemplated by this Agreement.\n\nE.   Neither the execution by EHC of this Agreement, nor compliance by EHC with\nits terms and conditions will (a) conflict with, or result in a breach or\nviolation of any provision in the documents under which EHC is incorporated, any\naward of any arbitrator in a matter as to which EHC is a party, or any other\nagreement or U.S. Government regulations relating to prohibitions on transfer or\nexport of technology to which EHC is subject, or (b) result in the creation of\nany lien upon the Acquired Assets.  EHC is not a party to, or otherwise subject\nto any provision contained in any agreement which restricts or otherwise limits\nthe transfer of the Acquired Assets (including, but not limited to, any loan\nagreement).  EHC is not a party to any license (other than the licenses\ncontained in this Agreement), joint venture or similar affiliation involving the\nAcquired Assets.\n\nF.   To the best of EHC's knowledge:  (a) The Acquired Assets (including all\nAcquired Intellectual Property Rights) and the marketing, reproduction or use of\nthe Acquired Assets do not infringe upon any patent, copyright, trademark, trade\nsecret or other proprietary right of any third party; (b) no proceedings have\nbeen instituted, are pending or are threatened which challenge the rights of EHC\nunder or the validity of the Acquired Intellectual Property Rights; (c) none of\nthe Acquired Intellectual Property Rights is being infringed upon by others; and\n(d) without regard to EHC's knowledge, none of the Acquired Intellectual\nProperty Rights is subject to any outstanding order or judgment.  EHC has taken\nall steps reasonably necessary to protect the Acquired Intellectual Property\nRights in the Acquired Assets, \n\n                                       6\n\n\n \nincluding, but not limited to, utilization of the proper statutory form of\ncopyright notice on all copies of the Acquired Product and Acquired\nDocumentation commercially distributed prior to the Effective Date. The\nrepresentations and warranties set forth in this Part II.2.F (a) shall survive\ntermination or expiration of this Agreement for injuries which arose prior to\ntermination or expiration.\n\nG.   (a)  No source code included in the Acquired Product or Acquired\nDocumentation has been disclosed to any third party by EHC or any EHC\nrepresentative, agent or partner; and (b) any EHC employee, who has been\ndirectly involved in the development of the Acquired Product and Acquired\nDocumentation has executed a confidentiality and nondisclosure agreement\ncovering the source code and other non-public information contained in the\nAcquired Product and Acquired Documentation.\n\nH.   The set of materials provided to HMI by EHC pursuant to Part II.1.C\nconstitutes a complete set of all full and partial copies of the Acquired Assets\nin all forms (including, without limitation, source code and object code for\nsoftware components) that EHC owns, to the best of EHC's knowledge, as of the\nEffective Date.\n\n--------------------------------------------------------------------------------\nPART III. LICENSE TO HMI PRODUCTS\n\n1.   LICENSE\n\nA.   Except as set forth in Part VI.1, HMI hereby grants EHC a * * *,\nnonexclusive, nontransferable, world-wide and fully paid-up right and license\ncommencing on the Effective Date:  (i) to use, copy, as well as offer and\ndistribute to End Users under HMI's standard license, solely in conjunction and\nintegrated with EHC's software medical applications and services, the Client-\nBased LHR (including the Client-Based EHC LHR and upon their initial release);\n(ii) to use, copy and display in a manner \"framed\" by or \"embedded\" within the\nEHC Web Site content, as well as offer and distribute to End Users under HMI's\nstandard license terms, solely in conjunction and integrated with EHC's Web\nSite, the Web-Based LHR (including the Web-Based EHC LHR and upon their  initial\nrelease); and (iii) to use internally in its own business, copy, (as well as use\nto develop, offer and distribute, under EHC's standard license, Health Tool\nApplications), the Health Talk Tool and the Health Vectors Tool; provided,\nhowever, EHC may not develop or contract for the creation of Health Tool\nApplications that, in the reasonable discretion of HMI, compete with the Health\nTalk Tool or the Health Vectors Tool.  HMI hereby grants to EHC the same\nlicenses to the manuals related to LHR, solely for use with the  LHR (the \"LHR\nDocumentation\").  This license includes any and all Updates, Releases and new\nVersions of LHR, Health Talk Tool and Health Vector Tool that may be provided to\nEHC from time to time.\n\nB.   HMI shall submit the standard licenses for EHC End Users referenced in Part\nIII.1.A (i) and (ii) to EHC for review and approval, which approval shall be not\nunreasonably withheld or delayed.  EHC shall submit its standard license\nreferenced in Part III.1.A (iii) to HMI for review and approval, which approval\nshall be not unreasonably withheld or delayed.\n\nC.   EHC acknowledges and agrees that HMI represents that the LHR, Health Talk\nTool, Health Vectors Tool, and related materials (\"HMI Materials\") are owned by\nand shall remain the sole property \n\n__________________________\n\n* * * Certain information on this page has been omitted and filed separately\n      with the Securities and Exchange Commission. Confidential treatment has\n      been requested with respect to the omitted portions.\n\n                                       7\n\n\n \nof, HMI, that the HMI Materials contain, embody and are based on patented or\npatentable inventions, trade secrets, copyrights and other intellectual property\nrights (collectively, \"IP Rights\") owned or controlled by HMI and that HMI shall\ncontinue to be the sole owner of all IP Rights in and to the HMI Materials,\nincluding, without limitation, any derivative works of the HMI Materials\nproduced by HMI or on HMI's behalf. EHC agrees that it will provide all\nreasonable cooperation and assistance to HMI, at HMI's expense, in taking any\naction necessary or appropriate to establish, confirm and defend HMI's IP\nRights, including, without limitation, the preparation, filing and prosecution\nof patent, copyright and trademark applications and the offering of testimony\nand other support in connection with any legal proceedings brought by or against\nHMI relating to HMI's IP Rights.\n\nD.   EHC agrees not to modify, translate, reverse engineer, decompile,\ndisassemble or extract, as applicable, any ideas, algorithms or procedures from\nthe whole or any part of the HMI Materials for any reason and shall include this\nrestriction in all relevant agreements with third parties, (including but not\nlimited to license agreements and consulting agreements) relating to the HMI\nMaterials.\n\nE.   EHC agrees to reproduce and include HMI's copyright, trademark, and other\nproprietary rights notices on any copies of the HMI Materials and the LHR\nDocumentation, including partial copies and copied materials in derivative\nworks.\n\n2.   HMI WARRANTIES AND REMEDIES FOR BREACH OF WARRANTY\n\nA.   HMI represents and warrants to EHC, as of the Effective Date, as follows:\n\n     (1)  HMI is a corporation duly organized and validly existing under the\nlaws of Delaware; and the execution of this Agreement by HMI, and the\ntransactions contemplated by this Agreement have been authorized by all\nnecessary corporate action on the part of HMI and neither the execution of this\nAgreement by HMI, nor the transactions contemplated by this Agreement, nor\ncompliance by HMI with any of its provisions violates any judgment or order of\nany court, arbitrator, or administrative agency applicable to HMI or any of its\nproperties or assets.\n\n     (2)  To the best of HMI's knowledge, there are no pending or threatened\ndisputes or controversies with HMI's suppliers, customers, consultants,\ndistributors and others having business relations with HMI relating to the LHR,\nHealth Talk Tool and Health Vectors Tool, nor any valid basis for a dispute.\n\n     (3)  To the best of HMI's knowledge, there are no suits, proceedings, or\ninvestigations pending or threatened against HMI before any court, arbitrator or\nagency based upon or challenging the ownership or use of the LHR, Health Talk\nTool and Health Vectors Tool, including claims for breach of warranty or\nproducts liability.  There is no judgment or order entered against HMI which\nmight have a material adverse effect on the value of the license rights granted\nto EHC pursuant to this Agreement.  No third party is asserting the invalidity\nof this Agreement or seeking to prevent any of the transactions contemplated by\nthis Agreement.\n\n     (4)  Neither the execution by HMI of this Agreement, nor compliance by HMI\nwith its terms and conditions will (a) conflict with, or result in a breach or\nviolation of any provision in the documents under which HMI is incorporated, any\naward of any arbitrator in a matter as to which HMI is a party, or U.S.\nGovernment regulations relating to prohibitions on transfer or export of\ntechnology to which HMI is subject.\n\n                                       8\n\n\n \nB.   Subject to Part III.2.E below, HMI warrants that, during the thirty (30)\ndays immediately following the delivery of LHR (the \"Warranty Period\"):  (i)\nperformance of LHR as delivered will not deviate materially from its\nspecifications as set forth in the LHR Documentation (the \"LHR Specifications\");\nand (ii) any date sensitive software components (i.e., software components the\nfunctionality of which includes processing, providing and\/or receiving date\ndata) of LHR will be year 2000 compliant (i.e., will, when used in accordance\nwith associated documentation be capable of correctly processing, providing\nand\/or receiving date data from, into, within or between the twentieth and\ntwenty-first centuries).  For purposes of Part III.2.A (ii) the Warranty Period\nshall be from the initial delivery of LHR until December 31, 2000.  If EHC\nbelieves there has been a breach of this warranty and so notifies HMI in writing\nwithin the Warranty Period, then HMI will promptly investigate the matter to\ndetermine the nature of the suspected breach.  If it is determined that there\nhas been a breach of this warranty, then HMI's sole obligation, and EHC's\nexclusive remedy, will be for HMI to correct or modify LHR to make it perform as\nwarranted.  With respect to the year 2000 warranty, HMI will additionally use\ncommercially reasonable efforts to reconstitute and\/or repair any LHR-stored\ndata files damaged as a result a year 2000 compliance failure caused by LHR.\n\nC.   Subject to Part III.2.E below, HMI warrants that LHR shall not:  (a)\nconstitute, or contain material that would constitute, libel, defamation or\nslander; or (b) constitute, or contain material that would constitute, an\ninvasion of the rights to publicity of any third party or other similar right.\nExcept as set forth in Part VII.2.C, to the extent the breach of this Part\nIII.2.C is due to content not developed or owned by HMI, HMI's exclusive\nliability and EHC's sole remedy for breach of this Part III.2.C shall be for HMI\nto remove any content which is the subject of the warranty claim in a\ncommercially reasonable timely fashion.\n\nD.   Subject to Part III.2.E below, HMI warrants that the LHR, Health Talk Tool\nand the Health Vectors Tool do not infringe any third party copyrights, patents\nor trademark or misappropriate any trade secrets rights of a third party.  If a\nthird party brings an action against EHC making allegations which, if true,\nwould constitute a breach of this warranty for which HMI is responsible, or if\nHMI anticipates such an action, HMI shall have the option, at its expense, to:\n(i) modify the infringing item(s) to be noninfringing without materially\nchanging the functionality of such item(s); or (ii) obtain for EHC a license to\ncontinue using such item(s).  This Part III.2.D and Part VII.2.C state HMI's\nentire obligation to EHC and EHC's sole remedy with respect to any claim of\nintellectual property infringement with respect to LHR, the Health Talk Tool and\nthe Health Vectors Tool.\n\nE.   HMI is not responsible for any claimed breaches of the foregoing warranties\nset forth in Part III.2 caused by:  (i) Acquired Assets furnished to HMI by EHC\npursuant to Part II.1.C of this Agreement, (ii) modifications made to the HMI\nMaterials by anyone other than HMI and its authorized personnel working at HMI's\ndirection; (iii) the combination, operation or use of the HMI Materials with any\nthird-party equipment or software or other items that HMI did not supply to EHC\n(including, without limitation, any EHC provided or developed equipment or\nsoftware); or (iv)  failure to use any new or corrected versions of HMI\nMaterials made available by HMI.\n\nF.   HMI does not warrant that the HMI Materials will be error-free or that its\noperation will be uninterrupted. The obligations set forth in this Part III.2.C\nand Part III.2.D (and related other sections) shall survive termination or\nexpiration of this Agreement for injuries which arose prior to termination or\nexpiration.\n\n                                       9\n\n\n \n3.   ENGAGING APPLICATIONS\n\nA.   EHC Engaging Applications.\n     --------------------------\n\n     (1)  EHC may create applications that are designed to engage the consumer\nin the management of their health that utilize LHR, and that are separate from\nLHR, but which interact with LHR, provide data or other input to LHR, or use\ndata or other output generated by LHR (\"Engaging Applications\"). HMI\nacknowledges that the Engaging Applications created by EHC are owned by and\nshall remain the sole property of EHC. * * * EHC shall, subject to Part\nIII.3.A (2) below, and in consideration of the revenue sharing scheme set forth\nin Part VI.1.F, offer to HMI * * *, nonexclusive, nontransferable, world-wide\nright and license to copy, reproduce, modify, translate and distribute\n(including sublicensing and marketing) copies of, and to prepare, have prepared,\n* * *, and to perform, display and use such EHC Engaging Applications * * * for\nHMI's internal use and in conjunction with LHR. This license includes any and\nall Updates, Releases and new Versions of the Engaging Applications that may be\nprovided to LHR from time to time. EXCEPT FOR THE WARRANTY PROVIDED IN PART\nIII.3.C, EHC PROVIDES THE EHC ENGAGING APPLICATIONS SOLELY ON AN \"AS-IS\" BASIS.\n\n     (2)  During each twelve (12) month period following the Effective Date, EHC\nshall, with respect to any EHC Engaging Application the development of which is\ncompleted during such twelve (12) month period, and at the time of such\ncompletion, be entitled to designate to HMI (via a written notice) * * *;\nprovided that EHC has not already, during such twelve (12) month period,\ndesignated more than one (1) other EHC Engaging Application as a Protected\nEngaging Application. EHC shall deliver any such EHC Engaging Applications which\nare not Protected Engaging Applications to HMI within six (6) months from its\ngeneral release to EHC customers.\n\n     (3)  Should HMI create any Engaging Applications for general release to\nHMI's customers (\"HMI Engaging Applications\"), (i) EHC acknowledges that the\nEngaging Applications created by HMI are owned by and shall remain the sole\nproperty of HMI; * * * HMI shall, in consideration of the revenue sharing scheme\nset forth in Part VI.1.F, offer to EHC a * * *, nonexclusive, nontransferable,\nworld-wide right and license to use and copy, as well as offer and distribute to\nEnd Users under HMI's standard license terms (pursuant to Part III.1.B), such\nHMI Engaging Applications solely for EHC's internal use and in conjunction with\nEHC's Web Site. In addition, EHC may sublicense HMI Engaging Applications to\nthird parties under commercially reasonable terms; provided that such terms will\nbe at least as protective of HMI's intellectual property (and intellectual\nproperty and other proprietary rights therein) as is the license to LHR granted\nto EHC in Part III.1 above. Should HMI be permitted to sublicense any third-\nparty Engaging Applications to EHC, HMI may offer EHC the opportunity to\npurchase a sublicense to such third-party Engaging Applications. HMI shall\ndeliver any such HMI Engaging Applications to EHC upon such HMI Engaging\nApplications general release to other HMI customers.\n\nB.   The license grant set forth in Part III.3.A(3) includes any and all\nUpdates, Releases and new Versions of the HMI Engaging Applications that may be\nprovided to EHC from time to time.  EXCEPT FOR THE WARRANTY PROVIDED IN PART\nIII.3.C, HMI PROVIDES THE HMI ENGAGING APPLICATIONS SOLELY ON AN \"AS-IS\" BASIS.\n\n____________________________\n\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       10\n\n\n \nC.   Each party warrants that its Engaging Applications licensed to the other\nparty do not infringe any third party copyrights, patents or trademarks or\nmisappropriate any trade secrets rights of a third party.  If a third party\nbrings an action against the licensee party making allegations which, if true,\nwould constitute a breach of this warranty, or if the licensor party anticipates\nsuch an action, the licensor party shall have the option, at its expense, to:\n(i) modify the Engaging Application to be noninfringing; or (ii) obtain for the\nlicensee party a license to continue using the Engaging Application.  This Part\nIII.3.C and Part VII.2.C (in the case of HMI) and Part VII.2.B (in the case of\nEHC) state the licensor party's entire obligation to the licensee party and the\nlicensee party's sole remedy with respect to any claim of intellectual property\ninfringement for Engaging Applications.  The obligation of each party set forth\nin this Part III.3.C (and related other sections) shall survive termination or\nexpiration of this Agreement for injuries arising prior to termination or\nexpiration.\n\n4.   SOURCE CODE ESCROW\n\nA.   HMI agrees that it will deliver (subject to the terms and conditions of\nthis Part III.4) within thirty (30) days after (i) the delivery of PMR to HMI,\none (1) copy of the source code, (if any) for PMR (the \"PMR Source Code\"); (ii)\nthe Effective Date, one (1) copy of the source code for each of such Tools (the\n\"Health Tools Source Code\"); (iii) the initial release of the Web-Based LHR or\n(with respect to Web-Based LHR) within 180 days of the Effective Date (whichever\nis shorter), one (1) copy of the source code for the Web-Based LHR, including\nthe EHC version thereof; and (iv) the initial release of the Client-Based LHR,\none (1) copy of the source code for the Client-Based LHR, including the EHC\nversion thereof (the source code for Web-Based LHR and Client-Based LHR are\ncollectively referred to as the \"LHR Source Code\") to Data Securities\nInternational, Inc. (\"DSI\"), 9555 Chesapeake Drive, Suite 200, San Diego, CA\n92123.  HMI and the EHC shall, promptly following the Effective Date, negotiate\nand execute a three party Technology Escrow Agreement with DSI governing the\nterms of the escrow arrangement and such Technology Escrow Agreement shall be\nattached and incorporated as Exhibit F to this Agreement.  The source code\ndelivered into escrow under this Part III.4.A means a copy of the code,\nlibraries and other source components so that, when compiled, linked and\notherwise manipulated to create the runtime\/executable image for the delivered\nsoftware, creates a complete and fully operational run-time\/executable version\nof the delivered software.\n\nB.   The Technology Escrow Agreement shall provide the events under which EHC\nmay exercise its rights to obtain access to all or any part of the Health Tools\nSource Code, the PMR Source Code and\/or the LHR Source Code, however such\nconditions shall be limited as follows:\n\n     (1)  EHC may exercise its rights under the Technology Escrow Agreement and\nobtain access to Web-Based LHR Source Code, including the EHC version thereof,\nupon, subject to Part III.4.B(5) below:  * * *\n     \n     (2)  EHC may exercise its rights under the Technology Escrow Agreement and\nobtain access to Client-Based LHR Source Code, including the EHC version\nthereof, upon, subject to Part III.4.B(5) below:  * * *\n\n-----------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n  \n\n                                       11\n\n\n \n     (3)  EHC may exercise its rights under the Technology Escrow Agreement and\nobtain access to the PMR Source Code upon termination of this Agreement for\ncause by EHC, subject to Part III.4.B(5) below, pursuant to Part VII.10.A,\npursuant to Part VII.10.B or termination of this Agreement by HMI pursuant to\nPart VII.5.\n\n     (4)  EHC may exercise its rights under the Technology Escrow Agreement and\nobtain access to the Health Tools Source Code upon, subject to Part III.4.B(5)\nbelow:  (i) termination of this Agreement for cause by EHC pursuant to Part\nVII.10.A based upon a breach of Part III.2.B, Part III.4.A, Part III.4.C, Part\nIV.4.B, Part IV.4.C, Part IV.3.C(1) or (3), or Part VII.6; (iii) breach by HMI\nof the document which shall be developed pursuant to Part VII.7.A; (iv)\ntermination of this Agreement by EHC pursuant to Part VII.10.B; or (v)\ntermination of this Agreement by HMI pursuant to Part VII.5.\n  \n     (5)  EHC may not exercise its rights, for any reason, under this Part\nIII.4.B, except under Part III.4.B(3), with respect to a specific Source Code,\nfor a period of * * * after the initial deposit of such Source Code into escrow.\nAfter such * * * period, EHC's exercise of its rights under pursuant to items\n(1) through (4) of this Part III.4.B, and access to the applicable Source Code,\nshall be subject to HMI first being provided commercially reasonable time to\nresolve * * * issues, as defined by the parties under Part IV.3.C(1), plus an\nadditional * * * cure period in which to resolve the condition triggering\nEHC's exercise of rights under this Part III.4.B, during which the applicable\nSource Code will not be released from escrow and at the end of which the\napplicable source code shall remain in escrow if the condition has been\nresolved.\n\nC.   If and to the extent HMI makes available Updates, Releases or new Versions\nof LHR, the Health Talk Tool or the Health Vectors Tool, HMI shall:  (i) deposit\nwith DSI source code of such Updates or Releases on a semi-annual basis; and\n(ii) deposit with DSI source code of such new Versions within ten (10) days of\nthe release of such new Versions, so the escrow account remains current.  All\naccount renewal costs shall be borne by HMI, except that EHC will be responsible\nfor paying the annual beneficiary fee.\n\nD.   License to Source Code Upon Release.\n     ----------------------------------- \n\n     (1)  Upon EHC obtaining access to the Web-Based LHR Source Code pursuant to\nPart III.4.B, HMI grants EHC a non-terminable, worldwide, non-exclusive, fully\npaid-up right and license to use such LHR Source Code for any purposes relating\nto maintaining, enhancing, preparing derivative works of and supporting Web-\nBased LHR and finishing development of Web-Based LHR if initial release has not\nyet been achieved.  All right, title and interest in and to derivative works\nmade by EHC pursuant to this Part III.4 shall vest in EHC.\n  \n     (2)  Upon EHC obtaining access to the Client-Based LHR Source Code pursuant\nto Part III.4.B, HMI grants EHC a non-terminable, worldwide, non-exclusive, full\npaid up right and license to use such LHR Source Code for any purposes relating\nto maintaining, enhancing, preparing derivative works of and supporting Client-\nBased LHR and finishing development of Client-Based LHR if initial release has\nnot yet been achieved. All right, title and interest in and to derivative works\nmade by EHC pursuant to this Part III.4 shall vest in EHC.\n\n----------------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       12\n\n\n \n     (3)  Upon EHC obtaining access to the PMR Source Code pursuant to Part\nIII.4.B, HMI grants EHC a non-terminable, worldwide, non-exclusive right, fully\npaid up and license to use such PMR Source Code for any purposes relating to\nmaintaining, enhancing, preparing derivative works of and supporting PMR, and\nfinishing development of an initial release of PMR if not yet achieved. All\nright, title and interest in and to derivative works made by EHC pursuant to\nthis Part III.4 shall vest in EHC.\n\n     (4)  Upon EHC obtaining access to the Health Tools Source Code pursuant to\nPart III.4.B, HMI grants EHC a non-terminable, worldwide, non-exclusive, fully\npaid up right and license to use such PMR Source Code for the any purposes\nrelating to maintaining, enhancing, preparing derivative works of and supporting\nthe Health Talk Tool and the Health Vectors Tool. All right, title and interest\nin and to derivative works made by EHC pursuant to this Part III.4 shall vest in\nEHC.\n\nE.   EHC acknowledges that the LHR Source Code, the PMR Source Code and the\nHealth Tools Source Code constitute highly sensitive HMI Confidential\nInformation.  If EHC obtains access to the LHR Source Code, the PMR Source Code\nor the Health Tools Source Code as provided herein, it agrees to treat such\nSource Code as HMI Confidential Information pursuant to Part VII.6 and otherwise\nwith at least the same degree of care as it treats the source code to its own\nproprietary programs, and further agrees that:\n  \n     (1)  Such Source Code will be used solely for EHC's internal purposes as\nexpressly permitted in Part III.4.D(1), and will not be made available to third\nparties for any reason;\n  \n     (2)  Access to the such Source Code shall be strictly limited to employees\nof EHC who have a need to access such Source Code and who have been advised of\nthe confidential proprietary nature of the such Source Code;\n\n     (3)  In the event EHC's access to such Source Code occurs outside of a\ntermination of this Agreement by EHC pursuant to Part VII.10.A (for cause) or\npursuant to Part VII.10.B or by HMI pursuant to Part VII.5, HMI's ongoing\nobligations under this Agreement with respect to such Source Code and the\nproducts such Source Code underlies (i.e., LHR, PMR or Health Talk Tool and the\nHealth Vectors Tool, as applicable) shall cease.  Without limiting the\ngenerality of the foregoing, such obligations include:  (i) in the case of LHR,\nthose contained in Part III.4, Part IV.1, Part IV.2.A, Part IV.2.B (if breach of\nPart IV.2.B was the event upon which EHC exercised its right to obtain access to\nthe Web-Based LHR Source Code) and Part IV.3; and (ii) in the case of the Health\nTalk Tool and the Health Vectors Tool, those contained in Part IV.4.\n  \n     (4)  In the event EHC's access to such Source Code occurs in the context of\na termination of this Agreement by EHC pursuant to Part VII.10.A (for cause) or\npursuant to Part VII.10.B or by HMI pursuant to Part VII.5, EHC shall continue\nto be bound by the terms of Part III.1 of this Agreement with respect to any\ncopies of LHR, PMR and the Health Talk Tool and the Health Vectors Tool in EHC's\npossession for as long as such products are in EHC's possession.\n\n     (5)  The revenue sharing provisions set forth in Part VI.1 shall cease to\napply with respect to the products such Source Code underlies.\n\n                                       13\n\n\n \n     (6)  The * * * provisions set forth in Part V.2 shall cease to apply with\nrespect to the products such Source Code underlies.\n\n-------------------------------------------------------------------------------\nPART IV.  DEVELOPMENT AND MAINTENANCE OF LHR\n\n1.   EHC SERVICES\n\nA.   In conjunction with this Agreement, EHC shall provide to HMI a project\nmanager on a full time basis and an architect, Mr. Lou Scalpati, on a half-time\nbasis (the \"EHC Employees\").  Such EHC Employees shall provide consulting,\nsoftware development and other professional services to HMI for the purposes of\nassisting in developing, maintaining and enhancing the Acquired Product, the\nClient-Based LHR and the Web-Based LHR consistent with the EHC Employees roles\nas an architect and project manager (collectively, \"Services\").\n\nB.   The EHC Employees shall execute HMI standard consulting agreement, a copy\nof which is attached hereto as Exhibit A (except that no payment shall be due to\nEHC or the EHC Employees under such agreement) and the HMI standard\nconfidentiality agreement, a copy of which is attached hereto as Exhibit B.\n\n2.   COMPLETION OF WEB-BASED LHR\n\nA.   Process.  The currently existing Web-Based LHR will be further developed by\n     -------                                                                    \nHMI with the assistance of the EHC Employees.  HMI shall assign the equivalent\nof two full time employees (the \"HMI EHC Resources\") to assist in the\ndevelopment of the EHC LHR, including EHC Features (as defined below); provided\nthat during the period before the initial release of the Web-Based LHR, the HMI\nEHC Resources shall assist in the development of such initial release of the\nWeb-Based LHR.  Furthermore, as agreed by the parties, during the period before\nthe initial release of the Web-Based LHR, EHC and HMI shall meet to review the\ndirection (technical and otherwise) of the Web-Based LHR.  During the Term of\nthis Agreement, EHC shall have a reasonable opportunity to provide comment on\nand approve, (such approval shall not be unreasonably withheld), the direction\nof the Web-Based LHR, in a timely manner, during the course of such meetings and\nduring the development of the Web-Based LHR; however, HMI will retain final\ncontrol over all aspects of the Web-Based LHR.\n\nB.   Third Party Secured Site.\n\n     (1)    Before the release of the initial Web-Based LHR to EHC, HMI and EHC\nwill mutually select a commercially reasonable third-party secured site provider\n(the \"Third-Party Secured Site\"), and HMI shall enter into a commercially\nreasonable agreement with such Third-Party Secured Site, at which to host LHR on\nHMI servers (i.e., servers specifically designated for HMI). Within sixty (60)\ndays of LHR first being hosted at such Third-Party Secured Site, the parties\nshall negotiate in good faith a set of commercially reasonable service levels\n(e.g., availability of LHR on the host server) (\"Service Levels\") which shall be\nincorporated into this Agreement in the form of Exhibit E attached to this\nAgreement. HMI shall be responsible for all costs associated with the Third\nParty Secured Site.\n\n-------------------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       14\n\n\n \n     (2)  Should a breach of this Agreement by HMI * * * occur that would not\nhave occurred but for: (i) the hosting of LHR at the Third-Party Secured Site;\nor (ii) the associated services ancillary to the hosting of LHR at the Third-\nParty Site (e.g., telecommunications to and from the Third-Party Secured Site),\nthen HMI shall have a reasonable period of time (not to exceed thirty (30) days)\nin which to work with the Third-Party Secured Site to identify and resolve the\nfactors contributing to such breach. If such breach persists (or in HMI's\nopinion is likely to persist) following such period, HMI's sole obligation to\nEHC * * * under this Agreement shall be * * *.\n\n\n\n3.   FUTURE DEVELOPMENTS AND MAINTENANCE OF LHR\n\nA.   Future Development of LHR.  HMI, at its sole discretion may provide\n     -------------------------                                          \nUpdates, Releases or new Versions of LHR.  As agreed by the parties, EHC and HMI\nshall meet to review the direction (technical and otherwise) of LHR.  After the\ninitial release of LHR, EHC shall have a reasonable opportunity to provide\ncomment on and approve, (such approval shall not be unreasonably withheld), the\ndirection of such Updates, Releases or new Versions of EHC's version of LHR, in\na timely manner, when HMI seeks input during the development process; however,\nHMI will retain final control over all aspects of LHR.\n\nB.   EHC LHR.  After the initial release of Web-Based LHR EHC may request that\n     -------                                                                  \ncertain EHC Features (as defined herein) be added to LHR to create  a \"Web-Based\nEHC LHR\" (the EHC versions of the Web-Based LHR and the Client-Based LHR are\ncollectively referred to as the \"EHC LHR\").  Upon the initial release of Web-\nBased LHR, and at EHC's request, the EHC Employees and the HMR Resources shall\nbe used  to assist in the creation of the EHC LHR as well as future Updates,\nReleases or new Versions of the EHC LHR.  The EHC LHR and all EHC Features shall\nbe and remain the property of HMI.  \"EHC Features\" means a feature, data element\nor function not part of the then-current Version of LHR (or the EHC LHR, as\napplicable):  (i) which is an original concept suggested by EHC; or (ii) which\nis a feature or function which HMI does not agree to incorporate as a Suitable\nPriority as part of LHR pursuant to this Part IV.3.B.\n\nEHC shall provide its requested features and functions for LHR during the normal\ncourse of project planning for LHR.  HMI shall in a reasonably timely manner\ndecide to reject or incorporate such suggested features and functions into the\nnext Version of LHR, or assign such features and functions a priority level for\nincorporation into the a future Version of LHR.  If a feature or function is of\na  priority level which, in EHC's reasonable judgment, is too low for\nincorporation into LHR, the feature and function will be not of \"Suitable\nPriority\", for purposes of Part IV.3.B (ii).  Notwithstanding the foregoing, HMI\nshall not have the right to reject an EHC Feature which will be incorporated\ninto the EHC LHR, unless the EHC Feature, in HMI's reasonable discretion would\nresult in a breach of any of the warranties contained in Part III.2, and HMI may\nalso limit the programming resources used to develop an EHC Feature to the HMI\nEHC Resources.  If the parties cannot agree that an EHC Feature is an \"original\nconcept\" under of Part IV.3.B (i), then the parties shall resolve this issue\nthrough the binding arbitration procedures described in Part VII.11.D.\n\n     (1)  The parties shall use commercially reasonable efforts to maintain as\nmuch compatibility as is practicable between LHR and the EHC LHR.\n\n--------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       15\n\n\n \n     (2)  For a period of * * * following such time as any EHC Feature has been\nincorporated, but in no event longer than * * * after the EHC Feature has been\nmade available for incorporation, into any new Update, Release or Version of the\nEHC LHR (\"EHC Exclusivity Period\"), * * *.  By way of clarification, this\nprovision in no way restricts HMI from offering, licensing\/distributing or\notherwise providing a Client-Based LHR or Web Based LHR (or any new Updates,\nReleases or Versions thereof) to the extent that the Client-Based LHR or Web\nBased LHR does not include any EHC Features that are still within their EHC\nExclusivity Period.\n\nC.   Support.\n     ------- \n\n     (1)  The parties shall mutually agree to support provisions, subject to\nPart IV.3.C(3), relating to LHR that HMI will provide to EHC during the term of\nthis Agreement and commencing upon the initial release of the LHR, or failing\nmutual agreement, the parties shall define such support provisions through the\nbinding arbitration procedure described in Part VII.11.D.\n\n     (2)  HMI agrees that it will offer to EHC's end users, commercially\nreasonable end user support for the EHC LHR, subject to Part IV.3.C(3), at a\ncommercially reasonable price. HMI shall offer the terms of such end user\nsupport for EHC's approval, which approval shall not be unreasonably withheld or\ndelayed.\n\n     (3)  At any given time during the term of this Agreement, HMI shall, with\nrespect to any particular Version of EHC LHR, provide support to EHC for such\nVersion if and to the extent * * * have elapsed since the time such Version was\nthe current (i.e., most recent)Version of the EHC LHR (each such Version for\nwhich HMI will provide support to EHC are hereinafter referred to as a\n\"Supported Version\").\n\n4.   FUTURE DEVELOPMENTS, TRAINING AND TECHNICAL SUPPORT FOR THE HEALTH TALK AND\n     HEALTH VECTOR TOOLS\n\nA.   HMI, at its sole discretion may provide Updates, Releases or new Versions\nof the HealthTalk Tool and\/or the Health Vector Tool.\n\nB.   HMI shall provide to EHC, at no cost to EHC, a total of three (3) days of\ntraining on the HealthTalk Tool and the Health Vector Tool at HMI's facilities,\nwhich may be used by EHC up to one (1) year after the Effective Date.  HMI shall\nprovide additional training as reasonably requested by EHC; provided that EHC\nwill reimburse HMI for the direct costs incurred by HMI in providing such\ntraining to EHC (along with any reasonable out-of-pocket expenses incurred by\nHMI in providing such training to EHC).\n\nC.   HMI shall provide technical support to EHC for the current Versions of the\nHealth Talk Tool and the Health Vectors Tool (and for the prior Version of such\nTools for a commercially reasonable period of time following the release of the\ncurrent Version of such Tools).  EHC will reimburse HMI for the direct costs\nincurred by HMI in providing such technical support to EHC (along with any\nreasonable out-of-pocket expenses incurred by HMI in providing such technical\nsupport to EHC).\n\n------------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       16\n\n\n \n-------------------------------------------------------------------------------\nPART V.   MARKETING AND QUALITY CONTROL; NONCOMPETITION; TRADEMARKS\n\n1.   MARKETING AND GENERAL QUALITY CONTROL\n\nA.   Marketing of LHR. EHC shall use commercially reasonable efforts to\n     ----------------                                                  \nadvertise, promote and market the LHR to its end users and potential customers.\n\nB.   General Quality Control.\n     ----------------------- \n\n     (1)  It is anticipated that EHC will \"frame\" or \"embed\" LHR in the EHC Web\nSite as a mechanism for accessing LHR. EHC warrants that any non-HMI content\ndisplayed or appearing to the end user in a \"frame\" or other similar mechanism\nincluding, without limitation, advertisements and the content accessed by\nselecting such advertisements, in conjunction with EHC's use of LHR shall not:\n(a) constitute, or contain material that would constitute, libel, defamation or\nslander; (b) constitute, or contain material that would constitute, an invasion\nof the rights to publicity of any third party; or (c) infringe upon the IP\nRights of any third party. Except as set forth in Part VII.2.B, EHC's exclusive\nliability and HMI's sole remedy for breach of this Part V.1.B(1) shall be for\nEHC to remove any content which is the subject of the warranty claim in a\ncommercially reasonable timely fashion.\n\n     (2)  EHC shall not modify, edit, abbreviate, censor or limit LHR's content\ntransmitted to EHC for display on the EHC Web Site through the LHR user\ninterface, including HMR Marks in LHR, except for the specific \"framing\"\ncontemplated in this Agreement.\n\n     (3)  Each party shall conduct its business in a fair and ethical manner,\nreflecting favorably upon the other party's software and the reputation,\ngoodwill, image and the credibility of the other party.\n\n2.   ***\n\nA.   HMI agrees * * *\n\nB.   Within the United States and within any other country in which HMI does\nbusiness and\/or in which LHR (or any portion thereof) is marketed and\/or\nlicensed, EHC shall * * *.\n\nC.   Within the United States and any within any other country in which EHC does\nbusiness and\/or in which the EHC Web Site is marketed and\/or licensed, HMI shall\n* * *\n\nD.   *** \n\nE.   ***\n\nF.   Each party acknowledges and agrees that the * * * covenants placed on such\nparty in this Part V.2 are reasonable and necessary to protect the legitimate\ninterests of the other party and that any violation of such * * * covenants will\nresult in irreparable injury to the other party.  Each party hereby\n\n-----------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n \n\n                                       17\n\n\n \nirrevocably waives any right to challenge or otherwise attempt to invalidate any\nof the restrictive covenants that such party is subject to, or any part(s)\nthereof. Each party agrees that, in the event it violates any of the restrictive\ncovenants to which it is subject, the other party shall be entitled to\npreliminary and permanent injunctive relief as well as an equitable accounting\nof all earnings, profits and other benefits arising from such violation, which\nrights shall be cumulative and in addition to any other rights or remedies to\nwhich such other party may be entitled at law or in equity. If it is determined\nthat any of the * * * covenants set forth in this Part V.2, or any part(s)\nthereof, are illegal or unenforceable, it is the parties' intent that the scope\nof the covenant be reduced to conform to the requirements of law.\n\nFor so long as EHC remains a licensee of LHR and\/or PMR in any form, and except\nas expressly set forth in this Agreement, both parties' obligation under this\nPart V.2 shall survive the termination of this Agreement for any reason.\n\n3.   HMI TRADEMARKS\n\nA.   Trademark License Grant.\n     ----------------------- \n\n     (1)  HMI is the owner of the \"Health Magic\" trade name, \"Health Talk\" mark,\nU.S. Trademark Application Number 75\/323223, the \"Compass Man Design\", U.S.\nTrademark Application Number 75\/459701, as well as the rights to marks\nassociated with the LHR developed by HMI specifically for use with LHR as LHR is\npresented on a customer's web site, whether a word, graphic, animated or sound\nmark (the \"HMI Marks\").  During the Term of this Agreement, HMI grants to EHC a\nnon-exclusive license to use the HMI Marks in conjunction and integrated with\nEHC's software medical applications and services (the \"Licensed Activities\").\nEHC will use the HMI Marks solely in connection with the Licensed Activities.\nHMI does not grant EHC the right to use the HMI Marks in connection with any\nproducts, services and\/or business other than the Licensed Activities.\n\n     (2)  EHC will always use the HMI Marks on and in connection with the\nLicensed Activities in a style or size of print distinguishing it from\naccompanying wording or text. EHC will display the symbol \"TM\" to the right and\nslightly above the last letter of the HMI Marks identified by HMI as requiring a\n\"TM\" when displayed on promotional and other materials used in advertising and\nrendering the Licensed Activities.\n\n     (3)  Except as contemplated by this Agreement, the license to use the HMI\nMarks granted by Part V.3.A(1) of this Agreement may not be assigned or\notherwise transferred by EHC. HMI does not grant, and nothing in this Agreement\nwill be construed as granting, EHC the right to license, sublicense or authorize\nothers to use the HMI Marks.\n\nB.   Quality Control.\n     --------------- \n\n     (1)  EHC's use of the HMI Marks and the nature and quality of the Licensed\nActivities promoted and marketed by EHC under the HMI Marks will at all times\ncomply with HMI's written standards and specifications as provided to EHC.  EHC\nwill permit HMI to reasonably inspect any\n\n----------------\n***   Certain information on this page has been omitted and filed separately\n      with the Securities and Exchange Commission. Confidential treatment has\n      been requested with respect to the omitted portions.\n \n\n                                       18\n\n\n \nmaterials used by EHC in the promotion and marketing of the Licensed Activities\nunder the HMI Marks and all other records relating to the quality of such\nactivities.\n\n     (2)  EHC will provide HMI with \"proofs\" or draft \"web pages\" of all\nmaterials used in the identification and or promotion of the Licensed Activities\nunder the HMI Marks for approval by HMI prior to their use which approval shall\nnot be unreasonably withheld or delayed. Materials used in the identification\nand\/or promotion of the Licensed Activities will include, but are not limited\nto, business cards, stationery, letterhead, web pages and promotional materials.\n\n     (3)  If HMI notifies EHC in writing that the Licensed Activities and\/or any\nmaterials used by EHC in the promotion and marketing of the Licensed Activities\ndo not meet the quality standards of HMI as reasonably determined by HMI, EHC\nwill cease use the HMI Marks in any manner or in connection the Licensed\nActivities and materials in question.  If, within sixty (60) days after\nreceiving the above written notification from HMI, EHC cures or otherwise\ncorrects to HMI's reasonable satisfaction the failure to meet the quality\nstandards of HMI, EHC will be entitled to resume its use of the HMI Marks in\nconnection with the promotion and marketing of the Licensed Activities.\n\nC.   Trademark Ownership.\n     ------------------- \n\n     (1)  EHC acknowledges that, as between HMI and EHC, that HMI's rights in\nthe HMI Marks are valid, that each is the exclusive property of HMI, and can\nlawfully be used only with the express license or consent of HMI. Specifically,\nas between HMI and EHC, EHC acknowledges HMI's common law rights in the HMI\nMarks. EHC will not at anytime do, or cause to be done any act or thing\ncontesting or in any way impairing or intending to impair the validity of and\/or\nHMI's rights, title and interest in and to the HMI Marks.\n\n     (2)  EHC will not in any manner represent that it owns the HMI Marks. EHC\nwill not register or apply to register the HMI Marks either alone or in\ncombination with any other word(s) and\/or design(s), in any country, state or\njurisdiction.\n\n     (3)  EHC acknowledges that its use of the HMI Marks will not create any\nrights, title, or interest in or to said mark in EHC's favor, but that all use\nof the HMI Marks by EHC will inure to the benefit of HMI.\n\n--------------------------------------------------------------------------------\nPART VI.  FINANCIAL STRUCTURE\n\n1.   REVENUE SHARING\n\n     Revenues shall be shared in accordance with the allocations described\nbelow, or as mutually agreed to by the parties from time to time.  As used\nherein, \"Revenue\" shall mean gross revenue less reasonable amounts paid for\ncommissions reasonable in light of industry standards and consistent with\nindustry standards for third-party commissions (EHC's current internal sales\ncommission is * * *), and other reasonable direct costs.\n\n---------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       19\n\n\n \nA.   Advertising.  Any advertising Revenue generated by the EHC Web Site's use\n     -----------                                                              \nof the LHR pages, including without limitation, advertisements framing LHR, or\n\"pop-up\" advertising, shall be shared between EHC and HMI with * * * of such\nRevenues allocated to EHC and * * * of such Revenues to HMI.  Such advertising\ncan be sold either by HMI and shared with EHC or it can be part of EHC's\nadvertising inventory and shared with HMI.\n\nB.   Sponsorship.  Any Revenues generated through sponsorship related to LHR or\n     -----------                                                               \nLHR pages shall be shared between EHC and HMI with * * * of such Revenues\nallocated to EHC and 70% of such Revenues to HMI.\n\nC.   Electronic Data Interchange (EDI).  Any Revenues generated through EDI\n     ---------------------------------                                     \nagreements reasonably related to LHR shall be shared between EHC and HMI with \n* * * of such Revenues allocated to EHC and * * * of such revenues to HMI.  The\nRevenue split for EDI shall be equitably adjusted to the extent that HMI\nmaintains and administers less than all of the additional programs, services and\nsupport required to connect to the EDI exchange partner.  As used herein, \"EDI\"\nshall mean any arrangements which causes data to be transmitted in or out of LHR\nrepository to a third party (other than a consumer) without the use of the\nconsumer-oriented LHR front-end application.\n\nD.   Clinical Research Organizations (CRO).  Any Revenues generated through CRO\n     -------------------------------------                                     \nTransaction reasonably related to LHR shall be shared between EHC and HMI with \n* * * of such Revenues allocated to EHC and * * * of such Revenues to HMI.  As\nused herein, a \"CRO Transaction\" shall occur where any individual selects a\nstudy (research) offer on the EHC Web Site where the study offer was directed to\nthe individual based on information found in the individual's LHR record.\n\nE.   Electronic Commerce (EC).  The parties agree to negotiate in good faith the\n     ------------------------                                                   \nsharing of revenues generated through EC opportunities reasonably related to LHR\nas such opportunities arise.\n\nF.   Engaging Applications.  Any revenues generated by either party through an\n     ---------------------                                                    \nHMI or EHC Engaging Application shall be shared between EHC and HMI with * * *\nof such revenues allocated to the party who developed the Engaging Application\nand * * * of such revenues to the other party; provided, however, that HMI shall\nnot be required to share revenue pursuant to this Part VI.1.F for HMI Engaging\nApplications if HMI was responsible for generating such revenue; provided that\nthe HMI Engaging Application is not a derivative work of an EHC Engaging\nApplication.  If and to the extent revenues generated by an EHC Engaging\nApplication are subject to sharing pursuant to this Part VI.1.F and any other\nrevenue sharing provisions in this Part VI.1, such revenues shall be shared\npursuant to such other revenue sharing provisions, with the sharing of any\nrevenues generated by such EHC Engaging Application which are not subject to\nsuch other revenue sharing provisions being determined by this Part VI.1.F.\n\nG.   Health Tool Applications. EHC shall, with respect to any Health Tool\n     ------------------------                                            \nApplication created by EHC which is not reasonably related to LHR and which is\nnot \"framed\" by or \"embedded\" within any EHC web site content, pay to HMI a\nportion of the revenue received by EHC pursuant to any transaction of which the\nlicensing of such Health Tool Application to a third party is a part, in a\nmanner and to an extent that equitably reflects the relative value of each\nparty's contribution to the transaction (with\n\n------------------\n***  Certain information on this page has been omitted and filed separately with\n     the Securities and Exchange Commission. Confidential treatment has been\n     requested with respect to the omitted portions.\n\n                                       20\n\n\n \nHMI's contribution being the extent to which the Health Vectors Tool and\/or the\nHealth Talk Tool enabled the development of such Health Tool Application). In\nlight of the foregoing, such portion shall be as mutually agreed upon by the\nparties.\n\nH.     * * *\n\n2.     AUDITS\n\n       Each party shall maintain sufficient records to track the revenues\ngenerated under Part VI.1.  Either party shall have the right to audit, on a\nreasonable basis, the other party's records and agreements to confirm the\naccuracy of the revenues reported by such party and compliance with the other\nterms and conditions of this Agreement.  Such audits shall be at the requesting\nparty's expense, unless the audit reflects a discrepancy of * * * percent or\nmore in favor of the other party , in which case, the audited party  shall\nreimburse the other party for the costs of the audit.  In the event of a\nunderpayment,  the audited party, within a reasonable period of time, shall pay\nthe discrepancy together with interest at a rate of the lesser of (i) one-and-\none-half percent (1 1\/2%) per month from the date the discrepancy occurred; or\n(ii) the maximum amount allowed by applicable law.  In the event of an\noverpayment, the auditing party shall, within a reasonable period of time,\nrefund the amount over paid.\n\n3.     OPPORTUNITIES FOR REVENUE SHARING\n\n       In instances where EHC derives revenue from any product or services it\nmarkets, offers or provides in which there is a component made up entirely or in\npart of products or services (or a group of products or services) for which\nrevenue sharing applies under this Part VI.1, if a group of such products and\nservices are priced together, or if one or more of the products and services are\ngiven to an End User free of charge (or at a significant discount) as part of a\ndeal where the End User buys some products or services and gets some products or\nservices for free (or at a significant discount), then the portion of the\nrevenue received by EHC that is allocated to the revenue sharing product or\nservice will be determined by looking at EHC's separate suggested retail prices\nof all products and services that are \"bundled\" together, and determining what\nproportion the suggested retail price of each revenue sharing product or service\nbear to the total suggested retail prices of all the products or services\nbundled together; and then that proportion of the total amount received would be\nallocated to such revenue sharing product or service.\n\n4.     REVENUE SHARING PROCEDURES\n\n       The procedures for the reporting, invoicing and payment of revenues shall\nbe mutually agreed to by the parties under commercially reasonable terms and\nconditions.\n\n________________________\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       21\n\n\n \n5.     * * * STATUS\n\n       * * *\n\n6.     * * * REVENUES TO HMI\n\n       Until HMI has received a cumulative amount of * * * in Revenues from the\nrevenue sharing opportunities under Part VI.1, HMI shall receive * * * from such\nopportunities* * *\n\n7.     BINDING ARBITRATION FOR RESOLUTION OF REVENUE SHARING DISPUTES\n\nShould the informal dispute resolution procedure fail to resolve a dispute\nbetween the parties with regard to the provisions of this Part VI, including\nwithout limitation the amount and character of such revenue sharing, such\ndispute shall be resolved by binding arbitration as described in Part VII.11.D.\n\n8.     COST OF PERFORMANCE\n\n       Except as otherwise set forth herein, neither party shall be obligated to\npay any taxes of the other or any other expenses which the other party may be\nliable for based upon or in connection with the transactions contemplated by\nthis Agreement.\n\n9.     SURVIVAL OF REVENUE SHARING\n\nA.     For so long as EHC remains a licensee of LHR and\/or PMR in any form, and\nexcept as expressly set forth in this Agreement,  both parties' obligations\nunder this Part VI shall survive the termination of this Agreement for any\nreason.\n\n________________________________________________________________________________\nPART VII. COMMON TERMS AND CONDITIONS\n\n1.     WARRANTY DISCLAIMER\n\nA.     THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT BY EACH PARTY ARE IN\nLIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,\nTHE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,\nAND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF\nPERFORMANCE OR USAGE OF TRADE.\n\n2.     GENERAL INDEMNIFICATION\n\nA.     If, as a result of HMI's negligence or intentional tortious conduct, EHC\nor EHC's employees suffer personal injury or damage to tangible property, HMI\nwill reimburse EHC for that portion of any claims EHC actually pays for which\nHMI is legally liable. If, as a result of EHC's negligence or intentional\ntortious conduct, HMI or HMI's employees suffer personal injury or damage to\ntangible\n\n__________________________\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       22\n\n\n \nproperty, EHC will reimburse HMI for that portion of any claims HMI actually\npays for which EHC is legally liable.\n\nB.     EHC agrees that, in the event a third party brings an action against HMI\nbased upon a:  (i) claimed breach of any of the representations and warranties\nbeing provided by EHC in Part II.2 of this Agreement; (ii) breach of its\nobligations pursuant to Part V.1.B of this Agreement; (iii) breach of its\nsecurity and other obligations with respect to End User Data pursuant to Part\nVII.7; (iv) breach of its confidentiality obligations pursuant to Part VII.6 of\nthis Agreement or (v) breach of the warranties being provided by EHC in Part\nIII.3.C or Part V.1.B (to the extent that content developed and owned by EHC is\nresponsible for the breach of Part V.1.B) of this Agreement, EHC will indemnify,\nhold harmless, and defend HMI from and against any and all damages, costs,\nlosses, claims, causes of action and lawsuits and expenses, including reasonable\nattorneys' fees.  * * *\n\nC.     HMI agrees that, in the event a third party brings an action against EHC\nbased upon a:  (i) claimed breach of any of the representations and warranties\nbeing provided by HMI in Part III.2.A of this Agreement; (ii) claim that the\nexecution by HMI of this Agreement or compliance by HMI with its terms and\nconditions conflicts with or causes a breach or violation of any other\nagreement; (iii) an error or omission in LHR; (iv) breach of its security and\nother obligations with respect to End User Data pursuant to Part VII.7; (v)\nbreach of its confidentiality obligations pursuant to Part VII.6 of this\nAgreement; or (vi) breach of the warranties being provided by HMI in Part\nIII.2.C, (to the extent that content developed and owned by HMI is responsible\nfor the breach of Part III.2.C), Part III.2.D or Part III.3.C of this Agreement,\nHMI will indemnify, hold harmless, and defend EHC from and against any and all\ndamages, costs, losses, claims, causes of action and lawsuits and expenses,\nincluding reasonable attorneys' fees.\n\n3.     INDEMNIFICATION PROCEDURES\n\nA.     Notice.  Promptly after receipt by any entity entitled to indemnification\n       ------                                                                  \nunder this Agreement of notice of the commencement or threatened commencement of\nany civil, criminal, administrative, or investigative action or proceeding\ninvolving a claim in respect of which the indemnitee will seek indemnification\npursuant to the appropriate provision of this Agreement, the indemnitee shall\npromptly notify the indemnitor of such claim in writing.  No failure to so\nnotify an indemnitor shall relieve it of its obligations under this Agreement\nexcept to the extent that it can demonstrate damages attributable to such\nfailure.  Within fifteen (15) days following receipt of written notice from the\nindemnitee relating to any claim, but no later than ten (10) days before the\ndate on which any response to a complaint or summons is due, the indemnitor\nshall notify the indemnitee in writing if the indemnitor elects to assume\ncontrol of the defense and settlement of that claim (a \"Notice of Election\").\nThe indemnitor shall reimburse the indemnitee for all costs and expenses\nincurred by the indemnitee in responding to such action or proceeding during the\nperiod between when the indemnitee has notified the indemnitor of the claim in\nwriting and when the indemnitor delivers a Notice of Election in response or the\nexpiration of the required notice period for the Notice of Election to be\ndelivered, whichever comes first.\n\nB.     Procedure Following Notice of Election.  If the indemnitor delivers a\n       --------------------------------------                               \nNotice of Election relating to any claim within the required notice period, the\nindemnitor shall be entitled to have sole control over \n\n___________________________\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       23\n\n\n \nthe defense and settlement of such claim; provided that (i) the indemnitee shall\nbe entitled to participate in the defense of such claim and to employ counsel at\nits own expense to assist in the handling of such claim, and (ii) the indemnitor\nshall obtain the prior written approval of the indemnitee before entering into\nany settlement of such claim or ceasing to defend against such claim. After the\nindemnitor has delivered a Notice of Election and has assumed its obligations\nunder this Part VII.3 relating to any claim in accordance with the preceding\nparagraph, the indemnitor shall not be liable to the indemnitee for any legal\nexpenses incurred by the indemnitee in connection with the defense of that\nclaim. In addition, the indemnitor shall not be required to indemnify the\nindemnitee for any amount paid or payable by the indemnitee in the settlement of\nany claim for which the indemnitor has delivered a timely Notice of Election if\nsuch amount was agreed to without the written consent of the indemnitor.\n\nC.     Procedure Where No Notice of Election Is Delivered. If the indemnitor\n       --------------------------------------------------\ndoes not deliver a Notice of Election relating to any claim within the required\nnotice period, the indemnitee shall have the right to defend the claim in such\nmanner as it may deem appropriate, at the cost and expense of the indemnitor.\nThe indemnitor shall promptly reimburse the indemnitee for all such costs and\nexpenses.\n\n4.     LIMITATION OF LIABILITY\n\n       To the maximum extent permitted by applicable law, each party's entire\nliability and the other party's exclusive remedy for damages from any event or\nclaim arising under or relating to this Agreement, for any cause whatsoever, and\nregardless of the form of action, whether in contract or in tort or any other\ntheory of liability (including, without limitation, breach of warranty and\nnegligence), will be limited as follows:\n\nA.     Each party will be liable for direct damages only, * * *\n\nB.     In no event will either party be liable for any lost profits, loss of\nbusiness, loss of use, lost savings or other consequential, special, incidental,\nindirect, exemplary or punitive damages, even if advised of the possibility of\nsuch damages.\n\nC.     The foregoing limitations shall not apply to:  (i) claims that are the\nsubject of indemnification pursuant to Part VII.2; or (ii) claims arising out of\nthe breach of Part V.2, Part VI.1 (but only to the extent of unpaid revenues\nplus accrued interest), or Part VII.6.\n\nD.     Each party shall have a duty to mitigate damages for which the other\nparty is responsible.\n\nE.     The remedies expressly stated in this Agreement are the sole and\nexclusive remedies of either party. The limitations of liability set forth in\nthis Part VII.4 will survive the failure of any limited or exclusive remedy set\nforth in this Agreement and the expiration or termination of this Agreement.\n\n5.     FORCE MAJEURE\n\n       Neither party will be deemed in default of this Agreement to the extent\nthat performance of its obligations, or attempts to cure any breach, are delayed\nor prevented by reason of any act of God, cause\n\n______________________\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       24\n\n\n \noutside of the party's reasonable control or other force majeure; provided that,\nsuch party promptly gives to the other party written notice of the condition and\nundertakes commercially reasonable efforts to circumvent the cause of the delay\nor minimize the extent of the delay. In any such event, the time for performance\nor cure will be extended for a period equal to the duration of the delay, not to\nexceed four (4) weeks. If the notifying party does not resume performance of\nsuch obligations or cure such breach before the end of such four (4) week\nperiod, the other party will be entitled to terminate the Agreement immediately\nwithout any obligation or liability to the delayed party for doing so.\n\n6.     NONDISCLOSURE\n\nA.     Each party acknowledges that it may be furnished with or may otherwise\nreceive or have access to non-public information which relates to past, present\nor future research, development, improvements, inventions, processes, software,\ntechniques, designs or other technical data, contact lists or other compilations\nfor marketing or development, or regarding administrative, management, financial\nor marketing activities of HMI, EHC or other third parties which have provided\ninformation to HMI or EHC.  \"Confidential Information\" is all information (i)\nidentified in written, graphic electronic or oral format by the Disclosing Party\nas confidential, trade secret or proprietary information, or (ii) or by its\nnature or the circumstances surrounding its disclosure should reasonably be\nregarded as Confidential Information.  \"Disclosing Party\" is the party\ndisclosing Confidential Information. \"Receiving Party\" is the party receiving\nConfidential Information. Without limiting the generality of the foregoing,\nConfidential Information shall be deemed to include End-User Data and data about\nend users contained in Health Vectors, and the terms and conditions of this\nAgreement.\n\nB.     All Confidential Information furnished or otherwise disclosed to either\nparty in the course of performing this Agreement shall remain the property of\nand be deemed proprietary and confidential to the Disclosing Party (with the\nexception of End-User Data which shall be deemed, for the purposes of protecting\nthe confidentiality of such End-User Data under this Agreement, to be\nconfidential to the Disclosing Party).  Without limiting the foregoing, the\nReceiving Party agrees: (a) to the extent permitted by applicable law, to hold\nsuch Confidential Information in strict confidence and in trust for the\nDisclosing Party; (b) to use the same degree of care in protecting the\nConfidential Information for which it protects its own such confidential\ninformation of like nature, but in no instance with less than reasonable care\nto protect such Confidential Information against unauthorized use or disclosure;\nand (c) to restrict disclosure of such Confidential Information to its employees\nwho (i) are directly participating in the performance of this Agreement; (ii)\nhave a need to know such Confidential Information; and (iii) have, upon the\nrequest of the Disclosing Party as a prerequisite to the release of Confidential\nInformation, executed an employee nondisclosure agreement in a form mutually\nacceptable to the Disclosing Party and the Receiving Party.\n\nC.     The Receiving Party further agrees that, with regard to Confidential\nInformation which it has received or itself generated, it will not disclose or\nallow to be disclosed any such Confidential Information to any third party,\nincluding, without limitation, any subsidiary, Affiliate, joint venture, any\nother contractual, cooperative, or affiliated entity of the such third party, or\nany independent entity without the express prior written consent of the\nDisclosing Party, which consent the Disclosing Party may give or withhold in its\nsole discretion unless disclosure of such Confidential Information is required\nby applicable law.  If a Disclosing Party consents to the disclosure of such\nConfidential Information to any such third party, such disclosure shall not be\nmade until Receiving Party, the Disclosing Party and the third party have\nentered into a non-disclosure agreement in a form acceptable to the Disclosing\nParty.\n\n                                       25\n\n\n \nD.     The Receiving Party shall not reproduce, disclose or use Confidential\nInformation, except for the sole purpose of performing its obligations under\nthis Agreement or in accordance with applicable law.  Without limiting the\ngenerality of the preceding sentence, the Receiving Party may not use\nConfidential Information which it has received, collected or itself generated\nfor purposes other than performing its obligations under this Agreement without\nthe prior written consent of the Disclosing Party.\n\nE.     The limitations on reproduction, disclosure, or use of Confidential\nInformation shall not apply to, and neither party shall be liable for,\nreproduction, disclosure, or use of any particular Confidential Information of\nthe other that:\n\n       (1)   was developed independently by the Receiving Party prior to the\nreceipt of any Confidential Information under this Agreement, as evidenced by\nwritten documents prepared or received by such party prior to the receipt of any\nConfidential Information under this Agreement;\n\n       (2)   was received without any obligation of confidentiality from a third\nparty that was rightfully in possession of such information and had the right to\ndisclose it to the Receiving Party without an obligation of confidentiality;\n\n       (3)   has been published or otherwise disclosed to others by the\nDisclosing Party without restrictions, or has come within the public knowledge\nor become generally known to the public without breach of this Agreement;\n\n       (4)   is a derivative of End-User Data (or data about end users contained\nin Health Vectors) that is of a statistical\/demographic nature and provided in\nan anonymous form, as an aggregate of the similar information of multiple end\nusers that does not individually identify specific end users (e.g., the number\nof LHR end users who are males between the ages of 25 and 40 reporting a\nparticular condition); or\n\n       (5)   is legally required to be disclosed pursuant to a judicial order\n(provided that, prior to such disclosure, the party ordered to make such a\ndisclosure promptly informs the other of the order).\n\nThe party seeking the protection of any of items (1) through (5) above shall\nbear the burden of proof with respect to any such exception.  Immediately upon\nreceipt by the Receiving Party of any request to release, disclose or use\nConfidential Information, where such release, disclosure or use is required by\napplicable law and is otherwise in contravention to the terms and conditions of\nthis Agreement, Receiving Party shall provide Disclosing Party written notice of\nsuch request.  Such notice shall be calculated to be sufficiently descriptive\nand in advance of any such release, disclosure or use so as to allow Disclosing\nParty the opportunity to raise any appropriate objections.  Disclosing Party\nshall be solely responsible for raising such objections and shall bear all\ncosts, including legal costs, associated with such objections.  Confidential\nInformation may be disclosed on a need to know basis to the accountants and\nattorneys of the Receiving Party without the consent of the Disclosing Party.\n\nF.     Should the Receiving Party receive information with uncertain status, the\nReceiving Party agrees to treat such information as Confidential Information\nuntil it receives written verification from the Disclosing Party that such\ninformation is not Confidential Information.\n\nG.     Neither the execution of this Agreement, nor the furnishing of any\nConfidential Information by the Disclosing Party or the Receiving Party shall be\nconstrued as granting to either party expressly, by implication, by estoppel or\notherwise, any license under any trademark, copyright, invention or other\nproprietary right now or hereafter owned or controlled by the party furnishing\nsuch information.\n\n                                       26\n\n\n \nH.     Except as otherwise set forth in this Agreement, upon termination or\nexpiration of this Agreement for any reason, the Receiving Party shall, at the\nDisclosing Party's option, either return or destroy all Confidential\nInformation, and shall destroy all analyses, compilations, forecasts, studies\nand other documents based upon or derived from such Confidential Information,\nand in each case shall retain no copies and shall cause an officer of the\nReceiving Party to certify in writing that it has complied fully with its\nobligations under this Part VII.6.H.\n\nI.     With regard to Confidential Information which either party has received\nor itself generated, in the event either party becomes aware of any release,\ndisclosure or use of such Confidential Information which has not been authorized\nby this Agreement, it will promptly, at its sole expense, (i) notify the\nDisclosing Party in writing; (ii) take such actions as may be necessary or\nreasonably requested by the Disclosing Party to minimize such unauthorized\nrelease, distribution or use and any damage to the Disclosing Party resulting\ntherefrom; and (iii) to the extent permitted by applicable law, cooperate in all\nreasonable respects with the Disclosing Party to minimize any such release,\ndistribution, use and damage. The Receiving Party shall be considered to have\ncured its breach of this Part VII.6 provided that: (i) the Receiving Party has\ntaken commercially reasonable efforts to modify its nondisclosure procedures and\neducate its personnel to reduce the likelihood of similar breaches of this Part\nVII.6; and (ii) the Receiving Party has made commercially reasonable efforts to\nlimit further disclosures by the person(s) or entity(ies) to whom unauthorized\ndisclosure was made.\n\nJ.     The provisions of this Part VII.6 shall survive the termination or\nexpiration of this Agreement for any reason for a period of five (5) years;\nprovided, however, that such provision shall continue to apply:  (i) to End-User\nData; (ii) to the LHR Source Code, PMR Source Code, EHC Engaging Applications\nSource Code and Health Tools Source Code; and (iii) as necessary to comply with\nany applicable laws, regulations, ordinances and codes.\n\n7.     RIGHTS IN DATA; SECURITY\n\nA.     Within ninety (90) days of the Effective Date, the parties shall in good\nfaith commence negotiations to mutually agree upon a set of standards to govern:\n(i) the location of particular elements or types of End-User Data, as between\nLHR and the EHC Web Site; (ii) the presentation of derivatives of End-User Data\nto third parties; (iii) physical and logical security measures to safeguard\nagainst the unauthorized alteration of access to, or destruction or loss of, End\nUser Data; (iv) use of End-User Data that is specific to a particular end user\nbut provided in a \"blinded\" fashion that does not reveal identifying data about\nsuch end user) and (v) other security policies related to HMI's and EHC's uses\nof End User Data (items (i) through (iv) collectively, the \"End-User Data\nStandards\").  Such Standards will be based on, or take into account standards or\nguidelines promulgated by:  (i) federal or applicable state or local\ngovernmental organizations; and (ii) industry recognized groups\/organizations.\nIf the parties are unable to agree upon the End-User Data Standards within a\nreasonable time frame, the parties shall mutually agree on one expert to resolve\n(in a binding manner) the differences between the parties preventing such\nagreement.  If the parties cannot agree on an expert, the expert shall be\nnominated by the arbitration panel identified in Part VII.11.D.\n\nB.     Once established and agreed upon, each party shall be bound by and comply\nwith such End-User Data Standards.\n\nC.     Notwithstanding Part VII.7.A and Part VII.7.B above, HMI shall have:  (i)\nthe right to provide market research or data analysis on the whole of LHR (i.e.,\non all End User Data contained in LHR including, without limitation, the EHC\nSourced End-User Data aggregated with end user data from other \n\n                                       27\n\n\n \nLHR customers) to third parties as specified in Part VI.1.H; and (ii) ongoing\naccess to EHC Sourced End-User Data as necessary to perform its obligations\nunder this Agreement including, without limitation, the ongoing maintenance,\nsupport and enhancement of LHR (or the EHC LHR as the case may be).\n\n8.     DIGITAL SECURITY\n\n       To restrict access to LHR to authorized end users whose identity has been\nverified, and to secure transmission of information over the Internet between\nsuch end users and HMI, when using LHR, access to, and use of, LHR is protected\nby a Digital Certificate based public-key encryption process.  Accordingly,\nprior to using LHR, end users shall be required to present a Digital Certificate\nto HMI from an HMI approved Certifying Authority.  Upon end user request, HMI\nwill serve as the Certifying Authority and issue an HMI Digital Certificate to\nthe end user.  If the end user elects to obtain the Digital Certificate from an\nHMI approved Certifying Authority (as opposed to HMI), the end user will be\nresponsible for any costs associated with acquiring such Digital Certificate.\n\n9.     INSURANCE\n\n       Each party will have and maintain in force the following insurance\ncoverages:\n\nA.     Comprehensive or Commercial General Liability Insurance, including\nProducts, Completed Operations Liability and Personal Injury, Blanket\nContractual Liability and Broad Form Property Damage Liability coverage for\ndamages to any property * * *\n\nB.     Employee Dishonesty and Computer Fraud coverage for loss arising out of\nor in connection with any fraudulent or dishonest acts committed by the\nemployees or agents of the insured party, acting alone or in collusion with\nothers, including the property and funds of others in their care, custody or\ncontrol* * *\n\nC.     Errors and Omissions Liability Insurance covering the liability for\nfinancial loss due to error, omission, negligence of employees and machine\nmalfunction * * *\n\nD.     Software Errors and Omissions Liability Insurance covering the liability\nfor financial loss due to software errors and omissions * * *\n\nEach party shall cause its insurers to issue certificates of insurance\nevidencing that the coverages and policy endorsements required under this\nAgreement are maintained in force and that not less than thirty (30) days\nwritten notice shall be given to the other party prior to any modification,\ncancellation or non-renewal of the policies.\n\n10.    TERMINATION\n\nA.     If either party believes that the other party has failed in any material\nrespect to perform its obligations under this Agreement, then that party may\nprovide written notice to the breaching party \n\n_____________________\n* * *  Certain information on this page has been omitted and filed separately\n       with the Securities and Exchange Commission. Confidential treatment has\n       been requested with respect to the omitted portions.\n\n                                       28\n\n\n \ndescribing the alleged failure in reasonable detail. If the breaching party does\nnot, within thirty (30) calendar days after receiving such written notice,\neither (i) cure the material failure or (ii) if the breach is not one that can\nreasonably be cured within thirty (30) calendar days, develop a plan to cure the\nfailure and diligently proceed according to the plan until the material failure\nhas been cured, then the non-breaching party may terminate this Agreement for\ncause by providing written notice to the non-breaching party. Termination of\nthis Agreement will be in addition to, and not in lieu of, other remedies\navailable to the terminating party under this Agreement.\n\nB.     Either party may terminate this Agreement by giving the other party prior\nwritten notice and designating a date upon which such termination shall be\neffective if the notifying party makes a general assignment for the benefit of\ncreditors, files a voluntary petition of bankruptcy, suffers or permits the\nappointment of a receiver for its business or assets, becomes subject to any\nproceeding under any bankruptcy or insolvency law, whether domestic or foreign,\nthat is not dismissed within one hundred and twenty (120) days, or has wound up\nor liquidated, voluntarily or otherwise.\n\nC.     Within thirty (30) days after the expiration or termination of this\nAgreement for any reason:  (i) EHC shall cease all use of and, at HMI's\nelection, return to HMI or destroy the original and all copies (including\npartial copies) of all software, documentation, all HMI Confidential\nInformation, and any other products or materials licensed or otherwise provided\nto EHC under this Agreement  (including, without limitation, LHR, the Acquired\nAssets, PMR, the Health Talk Tool and the Health Vectors Tool and HMI or third-\nparty Engaging Applications) for which EHC does not possess a valid license that\nexpressly by its terms survives the expiration or termination of this Agreement\n(\"HMI Items\"); (ii) all rights granted to EHC in and to such HMI items shall\nterminate; (iii) HMI shall cease all use of and, at EHC's election, return to\nEHC or destroy all EHC Engaging Applications licensed or otherwise provided to\nHMI pursuant to this Agreement, as well as return to EHC or destroy the original\nand all copies (including partial copies) of all EHC Confidential Information\nand any other products or materials licensed or otherwise provided to HMI under\nthis Agreement; and (iv) all rights granted to HMI in and to such products shall\nterminate.  Each party shall certify in writing to the other party that it has\nfully performed its obligations under this paragraph.\n\n11.    LAW AND DISPUTES\n\nA.     This Agreement will be governed by the laws of the State of Delaware,\nwithout regard to any provision of Delaware law that would require or permit the\napplication of the substantive law of any other jurisdiction.\n\nB.     Informal Dispute Resolution.\n       --------------------------- \n\n       (1)   Prior to the initiation of formal dispute resolution procedures,\nthe parties shall first attempt to resolve their dispute informally, as follows:\n\n             a)  Upon the written request of a party, each party shall appoint a\ndesignated representative whose task it will be to meet for the purpose of\nendeavoring to resolve such dispute.\n\n             b)  The designated representatives shall meet as often as the\nparties reasonably deem necessary in order to gather and furnish to the other\nall information with respect to the matter in issue which the parties believe to\nbe appropriate and germane in connection with its resolution. The\nrepresentatives shall discuss the problem and attempt to resolve the dispute\nwithout the necessity of any formal proceeding.\n\n                                       29\n\n\n \n             c)  During the course of discussion, all reasonable requests made\nby one party to another for nonprivileged information, reasonably related to\nthis Agreement, shall be honored in order that each of the parties may be fully\nadvised of the other's position.\n\n             d)  The specific format for the discussions shall be left to the\ndiscretion of the designated representatives.\n\n       (2)   Formal proceedings for the resolution of a dispute may not be\ncommenced until the earlier of:\n\n             a)  the designated representatives concluding in good faith that\namicable resolution through continued negotiation of the matter does not appear\nlikely; or\n\n             b)  thirty (30) days after the initial written request to appoint a\ndesignated representative pursuant to Paragraph (a) above (this period shall be\ndeemed to run notwithstanding any claim that the process described in this Part\nVII.11.B was not followed or completed).\n\n       (3)   Part VII.11.B shall not be construed to prevent a party from\ninstituting, and a party is authorized to institute, formal proceedings earlier\nto avoid the expiration of any applicable limitations period, or to preserve a\nsuperior position with respect to other creditors.\n\nC.     Immediate Injunctive Relief.\n       --------------------------- \n\n       The parties agree that the only circumstance in which disputes between\nthem shall not be subject to the provisions of Part VII.11.B is where a party\nmakes a good faith determination that a breach of the terms of this Agreement by\nthe other party is such that a temporary restraining order or other injunctive\nrelief is the only appropriate and adequate remedy. If a party files a pleading\nwith a court seeking immediate injunctive relief and this pleading is challenged\nby the other party and the injunctive relief sought is not awarded in\nsubstantial part, the party filing the pleading seeking immediate injunctive\nrelieve shall pay all of the costs and attorneys' fees of the party successfully\nchallenging the pleading.\n\nD.     Binding Arbitration.\n       ------------------- \n\n       (1)   Subject to Part VII.11.B above, and only where a particular part of\nthis Agreement calls for arbitration between the parties, such question or\ndispute arising out of or relating to this Agreement will be determined by\nbinding arbitration in the location of the principal place of a business of the\nparty who does not make the initial claim for arbitration, under the American\nArbitration Association (\"AAA\") Commercial Arbitration Rules with Expedited\nProcedures in effect on the date hereof, as modified by this Agreement.\n\n       (2)   There will be one arbitrator selected by the parties within ten\n(10) days of the arbitration demand or if not, by the AAA from its Large,\nComplex Case Panel (or have similar professional credentials), who shall be an\nattorney with at least fifteen (15) years commercial law experience. Any issues\nabout whether a claim is covered by this Agreement will be determined by the\narbitrator.\n\n       (3)   As may be shown to be necessary to ensure a fair hearing: the\narbitrator may authorize limited discovery; and may enter pre-hearing orders\nregarding, without limitation, scheduling, document exchange, witness disclosure\nand issues to be heard. The arbitrator will not be bound by the rules of\nevidence or of civil procedure, but may consider such writings and oral\npresentations as reasonable people would use in the conduct of their day-to-day\naffairs, and may require the parties to submit some or all of their case by\nwritten declaration or such other manner of presentation as the arbitrator may\n\n                                       30\n\n\n \ndetermine to be appropriate. The parties intend to limit live testimony and\ncross-examination to the extent necessary to ensure a fair hearing on material\nissues.\n\n     (4)  The parties agree that the arbitrator will be directed to use best\nefforts to: (i) hold a private hearing within sixty (60) days after the initial\ndemand for arbitration; (ii) conclude the hearing within three (3) days; and\n(iii) provide his or her written decision not later than fourteen (14) days\nafter the hearing. In making the decision and award, the arbitrator shall apply\nthe applicable substantive law. Absent fraud, collusion or willful misconduct by\nthe arbitrator, the arbitrator's award will be final, and judgment may be\nentered in any court having jurisdiction thereof. The arbitrator will award\nattorneys' fees and costs to the prevailing party but will have no authority to\naward any damages that are excluded by the terms and conditions of this\nAgreement. Either party will have the right to apply at any time to a judicial\nauthority for appropriate injunctive or other interim or provisional relief, and\nwill not by doing so be deemed to have breached its agreement to arbitrate or to\nhave affected the powers reserved to the arbitrator.\n\n     (5)  Neither party nor the arbitrator may disclose the existence, content\nor results of an arbitration without the prior written consent of both parties.\n\nE.   Both HMI and EHC agree to comply fully with all relevant export laws and\nregulations of the United States to ensure that no information or technical data\nprovided pursuant to this Agreement is exported or re-exported directly or\nindirectly in violation of law.\n\nF.   No proceeding, regardless of form, arising out of or related to this\nAgreement may be brought by either party more than two (2) years after the\naccrual of the cause of action, except that (i) proceedings related to violation\nof a party's proprietary rights or any duty to protect Confidential Information\nmay be brought at any time within the applicable statute of limitations, and\n(ii) proceedings for non-payment may be brought up to two (2) years after the\ndate the last payment was due.\n\n12.  GENERAL\n\nA.   Any notice or other communication required or permitted to be made or given\nby either party pursuant to this Agreement will be in writing, and will be\ndeemed to have been duly given:  (i) five (5) business days after the date of\nmailing if sent by registered or certified U.S. mail, postage prepaid, with\nreturn receipt requested; (ii) when transmitted if sent by facsimile, provided a\nconfirmation of transmission is produced by the sending machine and a copy of\nsuch facsimile is promptly sent by another means specified in this section; or\n(iii) when delivered if delivered personally or sent by express\n\n                                       31\n\n\n \ncourier service.  All notices will be sent to the other party at its address as\nset forth below or at such other address as such party will have specified in a\nnotice given in accordance with this section:\n\n\n<\/pre>\n<table>\n<caption>\n             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-<br \/>\n             In the case of EHC:                             With a copy to:<br \/>\n             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;- <\/p>\n<p><s><br \/>\n<c><br \/>\n               Empower Health Corporation, Inc.              Latham &amp; Watkins<br \/>\n               8920 Business Park Drive                      135 Commonwealth Ave.<br \/>\n               Austin, TX  78759                             Menlo Park, Ca 94025               <\/p>\n<p>               Attn: Chief Financial                         Attn: Anthony Richmond<br \/>\n               Fax:                                          Fax:  650 463-2600                 <\/p>\n<p>             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-<br \/>\n             In the case of HMI:                             With a copy to:<br \/>\n             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-<br \/>\n             HealthMagic, Inc.                               Shaw, Pittman, Potts &amp; Trowbridge<br \/>\n             1444 Wazee Street, Suite 210                    1501 Farm Credit Drive<br \/>\n             Denver, Colorado 80202                          McLean, Virginia 22102-0500        <\/p>\n<p>             Attn:  Calvin Wiese                             Attn:  Steven Meltzer, Esq.<br \/>\n             Fax:  407 975 1548                              Fax:  703-821-2397<br \/>\n             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-<\/p>\n<p>             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;- <\/p>\n<p><\/c><\/s><\/caption>\n<\/table>\n<p>B.     Each party will act in good faith in its performance of this Agreement<br \/>\nand will not unreasonably delay or withhold the giving of any consent, decision<br \/>\nor approval that is either requested by the other party or is reasonably<br \/>\nrequired by the other party in order to perform its responsibilities in<br \/>\naccordance with this Agreement.<\/p>\n<p>C.     Assignment\/Change in Control.<br \/>\n       &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8211;<\/p>\n<p>       (1)   Neither party may assign, delegate or otherwise transfer any right<br \/>\nor obligation set forth in this Agreement without the other party&#8217;s prior<br \/>\nwritten consent, except (subject to Part VII.12.C(2)) that a party may assign<br \/>\nany right or obligation set forth in this Agreement to an Affiliate or to a<br \/>\nsuccessor entity in the event of a merger, consolidation or sale of such party&#8217;s<br \/>\nbusiness or all or substantially all of such party&#8217;s stock or assets, provided<br \/>\nthe assignee agrees in writing to assume all of the assignor&#8217;s obligations and<br \/>\nliabilities under this Agreement, and provided further that the substitution of<br \/>\nthe rights of the assignee for the rights of the assignor does not materially<br \/>\nincrease the scope of, in the case of EHC, EHC&#8217;s use of HMI Materials and HMI or<br \/>\nthird party Engaging Applications, or in the case of HMI, HMI&#8217;s use of EHC<br \/>\nEngaging Applications, or materially increase the burden or risk imposed on the<br \/>\nother party by this Agreement. Any purported assignment in violation of the<br \/>\npreceding sentence will be void and of no effect. This Agreement will be binding<br \/>\nupon the parties&#8217; respective successors and permitted assigns.<\/p>\n<p>       (2)   Immediately upon Control of HMI passing to an individual entity (or<br \/>\na group of entities in the aggregate each of) whose main business is the<br \/>\nmanufacture and\/or sale of pharmaceuticals, tobacco products or insurance or to<br \/>\na Direct Competitor of EHC, or Control of EHC passing to an entity who is a<br \/>\nDirect Competitor of HMI: * * * At the end of such transition period: (i) EHC<br \/>\nshall cease all<\/p>\n<p>____________<\/p>\n<p>* * *  Certain information on this page has been omitted and filed separately<br \/>\n       with the Securities and Exchange Commission. Confidential treatment has<br \/>\n       been requested with respect to the omitted portions.<\/p>\n<p>                                       32<\/p>\n<p>use of and, at HMI&#8217;s election, return to HMI or destroy all HMI products<br \/>\nlicensed or otherwise provided to EHC pursuant to this Agreement (including,<br \/>\nwithout limitation, LHR, the Acquired Assets, PMR, the Health Talk Tool and the<br \/>\nHealth Vectors Tool and HMI or third party Engaging Applications, including<br \/>\nsource code); (ii) all rights granted to EHC in and to such products shall<br \/>\nterminate; (iii) HMI shall cease all use of and, at EHC&#8217;s election, return to<br \/>\nEHC or destroy all EHC Engaging Applications, including source code, licensed or<br \/>\notherwise provided to HMI pursuant to this Agreement; and (iv) all rights<br \/>\ngranted to HMI in and to such products shall terminate. For the purposes of this<br \/>\nAgreement, &#8220;Control&#8221; shall mean the legal, beneficial, or equitable ownership,<br \/>\ndirectly or indirectly, of more than fifty percent (50%) of a class of the<br \/>\ncapital stock of HMI ordinarily having voting rights. &#8220;Direct Competitor of EHC&#8221;<br \/>\nand &#8220;Direct Competitor of HMI&#8221; shall be defined by mutual agreement of the<br \/>\nparties, or failing mutual agreement through the binding arbitration procedure<br \/>\ndescribed in Part VII.11.D.<\/p>\n<p>D.   Except as otherwise permitted by the terms of this Agreement, all media<br \/>\nreleases, public announcements, and public disclosures by either party relating<br \/>\nto this Agreement or the subject matter of this Agreement, including promotional<br \/>\nor marketing material, but not including announcements intended solely for<br \/>\ninternal distribution or disclosures to the extent required to meet legal or<br \/>\nregulatory requirements beyond the reasonable control of the disclosing party,<br \/>\nshall be coordinated with and approved by other party prior to release.<br \/>\nNotwithstanding the preceding sentence, HMI may identify Empower as a client and<br \/>\ngenerally state the nature of HMI&#8217;s relationship with EHC provided that HMI<br \/>\nshall first obtain the written consent of EHC, which consent shall not be<br \/>\nunreasonably withheld or delayed.<\/p>\n<p>E.   There are no intended third party beneficiaries of any provision of this<br \/>\nAgreement.<\/p>\n<p>F.   EHC and HMI are and will remain independent contractors with respect to all<br \/>\nperformance rendered pursuant to this Agreement. Neither EHC nor any employee or<br \/>\nagent of EHC will be considered an employee or agent of HMI for any purpose.<br \/>\nNeither HMI nor any employee or agent of HMI will be considered an employee or<br \/>\nagent of EHC for any purpose. Neither party, nor its employees, will have any<br \/>\nauthority to bind or make commitments on behalf of the other party for any<br \/>\npurpose, nor will it or they hold itself or themselves out as having such<br \/>\nauthority. Each party will be solely responsible for supervising, providing<br \/>\ndaily direction and control, paying the salaries (including withholding of<br \/>\nincome taxes and social security), worker&#8217;s compensation, disability benefits<br \/>\nand the like of its personnel.<\/p>\n<p>G.   The provisions of this Agreement will be deemed severable, and the<br \/>\nunenforceability of any one or more provisions will not affect the<br \/>\nenforceability of any other provisions. In addition, if any provision of this<br \/>\nAgreement, for any reason, is declared to be unenforceable, the parties will<br \/>\nsubstitute an enforceable provision that, to the maximum extent possible in<br \/>\naccordance with applicable law, preserves the original intentions and economic<br \/>\npositions of the parties.<\/p>\n<p>H.   No failure or delay by either party in exercising any right, power or<br \/>\nremedy will operate as a waiver of such right, power or remedy, and no waiver<br \/>\nwill be effective unless it is in writing and signed by the waiving party.  If<br \/>\neither party waives any right, power or remedy, such waiver will not waive any<br \/>\nsuccessive or other right, power or remedy the party may have under this<br \/>\nAgreement.<\/p>\n<p>I.   Any provisions of this Agreement that by their sense and context<br \/>\ncontemplate continued performance or observance by one or both parties following<br \/>\nthe expiration or termination for any reason of this Agreement will survive any<br \/>\nsuch expiration or termination.<\/p>\n<p>                                       33<\/p>\n<p>J.   Headings used in this Agreement are for convenience of reference only,<br \/>\nand will not be used to interpret or construe this Agreement.<\/p>\n<p>K.   The Exhibits referred to in and attached to this Agreement are made a part<br \/>\nof it as if fully included in the text.<\/p>\n<p>L.   This Agreement constitutes the entire agreement between the parties, and<br \/>\nsupersedes all other prior or contemporaneous communications between the parties<br \/>\n(whether written or oral) relating to the subject matter of this Agreement. This<br \/>\nAgreement may be modified or amended solely in a writing signed by both parties.<\/p>\n<p>This Agreement may be executed in one or more counterparts, each of which shall<br \/>\nbe deemed an original, but all of which shall constitute one and the same<br \/>\ninstrument.<\/p>\n<p>By signing below, each party acknowledges that it has read this Software Sale,<br \/>\nLicense and Development Agreement, understands it and, intending to be legally<br \/>\nbound by this Agreement, has caused its authorized representative to execute<br \/>\nthis Agreement as of the date first written above.<\/p>\n<p>HealthMagic, Inc. (HMI)               Empower Health Corporation (EHC)<\/p>\n<p>By: \/s\/ Calvin Wiese                  By: \/s\/ Donald Hackett<br \/>\n   &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;           &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212; <\/p>\n<p>Name: Calvin Wiese                    Name: Donald Hackett<br \/>\n     &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-             &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;-<br \/>\nTitle: Chairman &amp; President           Title: CEO<br \/>\n      &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;              &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212; <\/p>\n<p>                                       34<\/p>\n<p>                                   EXHIBIT A<\/p>\n<p>                     TERMS AND CONDITIONS FOR EHC SERVICES<\/p>\n<p>Please see the attached HMI consulting services agreement.<\/p>\n<p>                                      A-1<\/p>\n<p>                                   EXHIBIT B<\/p>\n<p>                          CONFIDENTIALITY  AGREEMENT<\/p>\n<p>Please see the attached HMI Confidentiality Agreement<\/p>\n<p>                                      B-1<\/p>\n<p>                                   EXHIBIT C<\/p>\n<p>                          WARRANTY DISCLOSURES BY EHC<\/p>\n<p>2.A  The following licenses can not be verified:<br \/>\n          Pull-down calendar control<br \/>\n          All Icons and graphic backgrounds<\/p>\n<p>  The following third party software toolkits are included in the PMR:<br \/>\n          Stingray Software<br \/>\n               Objective Grid<br \/>\n               Objective Toolkit<br \/>\n               Objective Chart<\/p>\n<p>2.G  Third parties involved in the development:<br \/>\n          Superior Consultant<br \/>\n          Microsoft Corporation<\/p>\n<p>                                      C-1<\/p>\n<p>                                   EXHIBIT D<\/p>\n<p>                    DEFINITION OF &#8220;PERSONAL MEDICAL RECORD&#8221;<\/p>\n<p>&#8220;Personal Medical Record&#8221; means a repository of health information throughout<br \/>\nthe life of the consumer or individual which includes all of the following:<\/p>\n<p>     (1)  The medical records maintained by providers, health plans,<br \/>\nlaboratories, nursing homes, home care enterprises, etc, as well as summaries of<br \/>\nsuch information;<\/p>\n<p>     (2)  A place for the consumer to deposit health status information (so that<br \/>\nthe information can be compared over time);<\/p>\n<p>     (3)  A mechanism whereby providers, health plans and employers can monitor<br \/>\ncompliance; and<\/p>\n<p>     (4)  A Universal Patient Index Service containing demographic and<br \/>\ntransactional information, as well as various identifiers about the individual.<\/p>\n<p>                                      D-1<\/p>\n<p>                                   EXHIBIT E<\/p>\n<p>                            SERVICE LEVEL AGREEMENT<\/p>\n<p>This Exhibit E to be completed by the parties within sixty (60) days of LHR<br \/>\nfirst being hosted at the Third-Party Secured Site.<\/p>\n<p>                                      E-1<\/p>\n<p>                                   EXHIBIT F<\/p>\n<p>                          TECHNOLOGY ESCROW AGREEMENT<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7359],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9613,9616],"class_list":["post-42826","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-drkoopcom-inc","corporate_contracts_industries-health__misc","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42826","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=42826"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42826"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42826"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42826"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}