FOURTH AMENDED AND RESTATED OUTSOURCING AND OPERATING AGREEMENT

1.

DEFINITIONS

(a)

the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties and assets of Neoforma and its subsidiaries taken as a whole to any “person” or “group” (as such terms are used in Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)), other than Novation or any of its Affiliates;

(b)

the adoption by the Board of Directors of Neoforma of a plan relating to the liquidation or dissolution of Neoforma;

(c)

the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as defined above), other than Novation or any of its Affiliates, becomes the “beneficial owner” (as such term is used in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of more than 50% of the capital stock of Neoforma, measured by voting power or economic interest rather than number of shares;

(d)

the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that the beneficial owners (as defined above) of the capital stock of Neoforma immediately prior to such transaction or transactions cease to be the beneficial owners of at least 50.1% of the capital stock, measured by voting power or economic interest rather than number of shares, of the surviving or resulting entity of such transaction or transactions; or

(e)

during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of Neoforma (together with any new directors whose election by the Board of Directors or whose nomination for election by the stockholders of Neoforma was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously approved) cease to constitute a majority of the directors then in office.

2.

NOVATION OBLIGATIONS

2.1

Agency Relationship . Neoforma hereby appoints Novation to act as Neoforma’s limited agent to Sign-up Suppliers for the Novation Marketplace and HPPI Marketplace, and Novation accepts such appointment, for the principal purpose of facilitating e-commerce purchases by the patrons of VHA and UHC and by others.

2.2

Novation Duties . In connection with Novation’s appointment as agent under Section 2.1, Novation will perform the following obligations:

2.2.1 

Within 90 days after the execution of this Agreement, Neoforma and Novation shall meet and use best efforts to agree upon certain commercially reasonable negotiating parameters for: (i) securing, as the opportunity arises, certain data rights from Novation Suppliers for use by Neoforma in connection with services offered, (ii) certain service level requirements that Novation Suppliers must adhere to in connection with the Novation Marketplace, (iii) the contractual requirements that Novation Suppliers provide Supply Chain Data to the Novation Marketplace and negotiate with Neoforma in good faith for the purchase of the display of Non-Contract Products on and the establishment of connectivity to the Novation Marketplace. Novation shall adhere to the agreed upon parameters. Novation may exercise its sole and unfettered discretion with respect to the terms and conditions of its agreements with Novation Suppliers, provided that such are not inconsistent with Novation’s obligations under this Agreement.

2.2.2 

Neoforma and Novation shall meet no less frequently than on a quarterly basis (or at any time that either Neoforma or Novation reasonably requests such a meeting) to review the then-current negotiating parameters regarding data rights, service level requirements and the other rights and obligations described in Section 2.2.1 and the then-current required rights described in Section 2.5.2.

2.2.3 

Novation will provide to Neoforma promptly after the Sign-up of each Supplier agreement all information contained in such agreement that is necessary for Neoforma to fulfill its obligations under Section 2.5.

2.2.4 

Novation will manage the Supplier relationships in respect of each Novation Supplier, and will use diligent efforts to facilitate favorable commercial relationships between Neoforma and Novation Suppliers.

2.2.5 

Novation and Neoforma shall cooperate to increase the number of Novation Suppliers on the Novation Marketplace and HPPI Marketplace.

2.2.6 

Novation will reasonably cooperate with Neoforma to resolve performance problems with respect to any Novation Supplier that it has Signed-up and who has become the subject of numerous User complaints.

2.2.7 

Subject to its obligations under Section 11.2, Novation will bring to Neoforma’s attention, reasonably promptly after learning thereof, any fact that would reasonably be likely to materially adversely affect the Novation Marketplace or HPPI Marketplace, Neoforma or Users, including, without limitation, the institution of litigation against Novation or any Supplier.

2.2.8 

In performing its duties under this Section 2, Novation shall not be required to initiate or carry on litigation.

2.3

Certain Contracts . For the avoidance of doubt, the Parties agree that the contracts constituting the Novation Contract Portfolio or the Retained Contracts, as now or hereafter constituted, shall remain obligations of Novation, UHC or VHA, as the case may be, and shall not be transferred to, or assumed by, Neoforma in connection with this Agreement.

2.4

Adjustment of Transaction Fees . Novation shall meet with Neoforma no less frequently than on a quarterly basis (or at any time that either Neoforma or Novation reasonably requests such a meeting) to review the Transaction Fees then in effect. At such meetings, Neoforma and Novation shall in good faith review whether the Transaction Fees then in effect are market competitive and, if not, shall adjust such Transaction Fees so that they are market competitive. For the avoidance of doubt, the Parties agree that “market competitive” shall mean that (i) Suppliers are reasonably likely to agree to pay such fees at such time or (ii) such

fees are competitive with similar Transaction Fees paid by suppliers in similar e-commerce or related industries. Until Neoforma and Novation have agreed upon a change to the Transaction Fees, as the case may be, the then-existing fees shall remain in effect.

2.5

Novation Offerings and Procurement on Neoforma’s Behalf .

2.5.1 

Marketplace Services and Functionality Offered by Novation to Suppliers . In conjunction with Novation’s appointment as a limited agent under Section 2.1 above, Novation shall contract with Novation Suppliers to display through the Novation Marketplace: Novation Supplier’s Products contained in the Novation Contract Portfolio; and Novation Supplier’s contracts with Novation for the purchase of such Products.

2.5.2 

Novation’s Procurement of Rights on Neoforma’s behalf . In conjunction with Novation’s performance as limited agent in accordance with Section 2.1 above, Novation shall, on Neoforma’s behalf, obtain the Novation Supplier’s agreement to the following terms, and Novation may not Sign-Up any Supplier to participate on the Novation Marketplace without that Supplier’s agreement to such terms:

(a)

Novation owns and will continue to own the compilation or “look and feel” of all Content as it appears on Novation Marketplace (“Content Compilation”);

(b)

any reproduction, transmission or display of the Content Compilation by any Novation Supplier or any third party is strictly prohibited; and

(c)(i)

 the rights of Neoforma solely in connection with the Novation Marketplace to, on a non-exclusive, royalty-free and fully paid-up basis, use, copy, modify, display, perform and create derivative works of Supplier’s Content solely for the purposes of digitizing, categorizing and formatting such information for placement on the Novation Marketplace, to create a reference database of Supplier Content, and to use such database to reconcile, correct and/or supplement Member and Transaction Data to help ensure that such is accurate and up to date for so long as the Supplier participates on the Novation Marketplace.

3.

NEOFORMA OBLIGATIONS

3.1

Service . Neoforma shall provide Services mutually agreed between Neoforma and Novation as set forth herein and in the Functionality Roadmap. Neoforma

and Novation anticipate that the Services will evolve and be modified or be enhanced over time to keep pace with technological advancements and improvements in e-commerce as specified in each Functionality Roadmap as agreed upon in accordance with the Collaborative Development process set forth in Exhibit M. Once agreed upon, all modification to each Functionality Roadmap must be in writing and agreed to by the Parties in writing.

3.2

Service Levels . Neoforma shall provide such professional and technical personnel and other resources (including, without limitation, hardware, software, facilities, equipment and other assets) as shall be required to perform the Services in accordance with service levels set forth in Exhibit N and as shall otherwise be mutually agreed upon by the Parties and referred to as the “ Service Level Specifications .” Once agreed upon, all modifications to the Service Level Specifications must be in writing and agreed to by the Parties in writing.

3.3

Cooperation with Novation . Neoforma shall cooperate with Novation in the performance of Novation’s limited agency obligations under Section 2 and to perform Neoforma’s obligations as provided in Section 2.

3.4

Employee Incentives . No later than February 15 during each year of the term of this Agreement, Neoforma shall develop and implement employee compensation plans that will provide Neoforma employees with incentives to meet Functionality Roadmap delivery dates.

3.5

Quality Assurance Program . Neoforma will administer a quality assurance program that has been mutually agreed to by Neoforma and Novation, among other things, to monitor Supplier performance and order confirmation for Products ordered by Users.

3.6

Notice of Materially Adverse Facts . Subject to its obligations under Section 11.2, Neoforma will bring to the attention of each of Novation, VHA and UHC, reasonably promptly after learning thereof, any fact that would reasonably be likely to materially adversely affect the Novation Marketplace, the HPPI Marketplace or the Members, VHA, UHC or HPPI, including, without limitation, the institution of litigation against Neoforma or any Supplier.

3.7

Case Studies . During each of the calendar years 2003 through 2004, Neoforma shall on an annual basis (but in no event later than March 1 of each year) prepare two or more User case studies documenting the economic value that the Novation Marketplace and HPPI Marketplace has for each of Suppliers and Members. After calendar year 2004, such case studies shall be prepared by Neoforma from time to time as mutually agreed by Novation and Neoforma. In addition, during the Term, Neoforma shall measure current and cumulative value provided to Members and Suppliers by the Novation Marketplace and HPPI Marketplace.

Each case study prepared by Neoforma will be sent to each of Novation, VHA, and UHC for the purpose of marketing the Novation Marketplace and HPPI Marketplace to other Suppliers and Members.

3.8

Customer Integration .

3.8.1 

Neoforma shall complete the Integration and make operational for receiving and confirming orders, or delivering or receiving Supply Chain Data, for each Supplier that is Signed-up by the Supplier Integration Deadline. Neoforma shall, on a regular basis as agreed to by Neoforma and Novation in connection with the Service Level Commitments to be determined in accordance with Section 3.8.2 below, load onto the Novation Marketplace Novation Supplier Content as provided by Novation Suppliers. Within 90 days of the execution of this Agreement, Neoforma and Novation shall meet and use best efforts to agree on commercially reasonable service level commitments regarding the frequency, time frame and other parameters with respect to Neoforma’s obligation to load Content received from Novation Suppliers onto the applicable Customized Marketplace.

3.8.2 

Neoforma shall be responsible for signing Members to the Novation Marketplace. Within ninety (90) days after the Effective Date and, thereafter once each year within ninety (90) days after the anniversary of the Effective Date, Neoforma and Novation shall meet and use good faith and reasonable efforts to determine and agree upon their respective responsibilities in connection with obtaining additional agreements between Members and Neoforma for use of the Novation Marketplace (“New Participating Members”). At each such meeting, Neoforma and Novation shall undertake to identify and attempt to sign as New Participating Members, those Members representing purchasing volume, as measured by reference to the volume purchases of Novation Contract Products by Members (“Member Purchasing Volume”), that, if signed as New Participating Members, will result in participation in the Novation Marketplace by eighty-five percent (85%) of the total Member Purchasing Volume by the end of the calendar year 2005 (“Target Participation”). Neoforma shall staff appropriately to perform its obligations in connection with achieving Target Participation.

3.8.3 

Neoforma shall be responsible for either connecting signed Members to signed Novation Suppliers directly (EDI, XML, etc.) or making Supply Chain Data available directly to signed Members. Neoforma and Novation shall agree on annual volume and connection targets. Neoforma shall staff appropriately to achieve the mutually agreed upon targets. The annual targets shall be based on the overall objective of connecting signed Members to signed Novation Suppliers covering 80% of potential line items for products for signed Novation Suppliers.

3.8.4 

Neoforma shall perform all obligations required of it and comply with all restrictions imposed on it pursuant to each agreement entered between Novation and a Supplier in compliance with Section 2.2.1.

3.8.5 

Neoforma shall not Sign-Up a Novation Supplier to the Novation Marketplace without the prior consent of Novation. Neoforma shall not Sign-Up a Novation Supplier of Non-Contract Products on terms more favorable than those permitted to be entered into between Novation and a Novation Supplier.

4.

THE MARKETPLACES

4.1

Maintenance of Novation Marketplace and HPPI Marketplace . Neoforma shall use its best efforts to maintain the Novation Marketplace and HPPI Marketplace as a leading provider of e-commerce services to the healthcare industry.

4.2

Consultation . Neoforma, Novation, VHA and UHC will consult regularly (but no less frequently than on a quarterly basis) to discuss the strategic direction of the Novation Marketplace and HPPI Marketplace, including the features and functions that would provide additional value to patrons and others.

4.3

Provision of Non-Contract Product Information . The Suppliers will be responsible for providing Neoforma with Materials to be located on the Marketplaces in respect of all Non-Contract Products. Novation will review such

Materials relating to the Non-Contract Products, subject to Neoforma providing Novation a methodology for previewing such Materials. Novation may request that any materials or data that Novation reasonably and in good faith believes is likely to result in liability to Neoforma, Novation, HPPI, VHA UHC or any Users be promptly removed from the Novation Marketplace and/or HPPI Marketplace, and Neoforma shall use commercially reasonable efforts to comply with such requests. Neoforma shall include language in all new contracts with Suppliers who Sign-Up for the Novation Marketplace that allows for the removal of material or data from the Novation Marketplace which Novation, in its sole discretion, reasonably and in good faith believes to may result in injury or damage to the reputation or goodwill in the businesses of, or otherwise is likely to result in liability to, Neoforma, Novation, HPPI, VHA, UHC or any Users.

4.4

Provision of Contract Product Information . Novation shall be responsible for providing Neoforma with pricing for Contract Products and any unique facts and summary sheets relating to such Contract Products that are prepared by Novation. The Novation Suppliers will be responsible for providing Neoforma with all other information regarding such Contract Products. Subject to Neoforma providing to Novation a methodology for allowing Novation to preview Materials relating to Contract Products, Novation will review such information and determine that such information is reasonably accurate, prior to being loaded on the Novation Marketplace (e.g., correct pricing, product numbers, description, etc.). Novation may request that any materials or data that Novation reasonably and in good faith believes is likely to result in liability to Neoforma, Novation, HPPI, VHA UHC or any Users be promptly removed from the Novation Marketplace and/or HPPI Marketplace, and Neoforma shall use commercially reasonable efforts to comply with such requests. Neoforma shall include language in all new contracts with Suppliers who Sign-Up for the Novation Marketplace that allows for the removal of material or data from the Novation Marketplace which Novation, in its sole discretion, reasonably and in good faith believes to may result in injury or damage to the reputation or goodwill in the businesses of, or otherwise is likely to result in liability to, Neoforma, Novation, HPPI, VHA, UHC or any Users.

4.5

Independent Users . Prior to the date on which Neoforma concludes an agreement with a GPO (other than HPPI) having its own Supplier contracts (an “ Independent GPO ”) who, as a condition to using a Marketplace, contractually requires Neoforma to act in a neutral manner, Neoforma shall refer any User who requests access to a Customized Marketplace (other than a Member entitled to use the Novation Marketplace) to the HPPI Marketplace. After the date on which an Independent GPO is on the Marketplace, if a User (other than a Member entitled to use the Novation Marketplace) approaches Neoforma requesting access to a Customized Marketplace, Neoforma shall act in a neutral manner with regard to such User and shall not be required to recommend or otherwise refer such User to any specific part of the Marketplace, including the HPPI Marketplace or the

Novation Marketplace. Notwithstanding the preceding sentence, Neoforma will at all times feature the HPPI Marketplace at least as prominently on the Marketplace as any other Customized Marketplace.

4.6

Multiple Memberships . If a Member is also a member of any other GPO that has a Customized Marketplace on the Marketplace, that Member will have access to all of the Marketplace, including the Novation Marketplace or HPPI Marketplace, as the case may be, and the applicable Customized Marketplace. Members who are also Users of Customized Marketplaces will have access rights to the Novation Marketplace or the HPPI Marketplace equal to those of Members that do not belong to Customized Marketplaces. Notwithstanding the foregoing, Neoforma shall provide favorable view and framing in respect of the Novation Contract Portfolio to any Member accessing the Marketplace.

4.7

User Registration . Neoforma, with Novation’s assistance, will develop a Tool to register Members on the Novation Marketplace and HPPI Marketplace. Neoforma will require Members to create and use passwords as a necessary condition to accessing the Novation and HPPI Marketplace. Neoforma shall be responsible for keeping the Novation Marketplace registry and the HPPI Marketplace registry current and for not allowing access to such Marketplaces by unauthorized Users.

4.8

Delivery and Order Fulfillment . Neoforma will notify Novation Suppliers and provide Novation Suppliers access to the Transaction Database for sales, rentals and leases of Products by such Novation Suppliers, in a form and format mutually agreed upon by Neoforma and Suppliers and to the extent set forth in the Functionality Roadmap.

4.9

Removal of Products from the Novation Marketplace and HPPI Marketplace . With regard to Non-Contract Products, Neoforma shall remove Product listings from the Novation Marketplace and HPPI Marketplace promptly after determining that the appearance of such Products will, or is reasonably likely to, result in liability to Neoforma, Novation, HPPI, VHA, UHC or any Users. Upon such removal, Neoforma will promptly notify Novation of such action and the reasons therefore. With regard to Contract Products, Neoforma shall notify Novation promptly after becoming aware of any problems with a Contract Product or that any such Contract Product will, or is reasonably likely to, result in liability to Neoforma, Novation, HPPI, VHA, UHC or any Users. In addition and at the same time, Neoforma shall provide to Novation all information of which it is aware regarding the problems with such Contract Product. Neoforma will obtain Novation’s prior written consent, prior to taking any action to remove such Contract Product listing from the Novation Marketplace and HPPI Marketplace.

4.10

Customized Marketplaces. In accordance with the Functionality Roadmap to be agreed upon, Neoforma may create Customized Marketplaces and other customized sites for the use and benefit of Users on the Customized Marketplace. Neoforma will not intentionally create Customized Marketplaces for the purpose of evading fees owed to Novation under Section 8 of this Agreement.

4.11

Links . The Parties will establish and maintain hypertext links from the Novation web site, HPPI web site, VHA web site and UHC web site to the Novation Marketplace and HPPI Marketplace. Each of Novation, HPPI and Neoforma will use reasonable efforts to ensure that the respective links that each Party maintains linking Novation, HPPI and Members to the Novation Marketplace and HPPI Marketplace function correctly.

4.12

Reasonable Assistance . Each Party will provide the other Parties with on-going reasonable assistance with regard to technical, administrative and service-oriented issues relating to the Marketplaces.

5.

NOVATION MARKETPLACE AND HPPI MARKETPLACE

5.1

Development . The Parties shall meet from time to time to agree to the “look and feel” and organization of the Novation Marketplace and the HPPI Marketplace, and to jointly develop and agree upon a Functionality Roadmap, which shall include an implementation plan and schedule for development of the Novation Marketplace and the HPPI Marketplace. The current Functionality Roadmap is approved by the Parties as of the date hereof and attached hereto as Exhibit K. The Collaborative Development Process is the process by which future Functionality Roadmaps will be developed and is attached hereto as Exhibit M.

5.2

Hosting . Neoforma will create, host and implement the Novation Marketplace and the HPPI Marketplace according to the agreed plan and display the Novation Contract Portfolio in a manner similar to the way in which products currently appear on the Marketplace.

5.3

Delivery and Order Fulfillment . Neoforma will notify the Suppliers of purchases, rentals and leases made by Members in a form and format according to the terms of Neoforma’s agreements with Suppliers.

5.4

Display of Material . In order to facilitate efficient presentation of Product information, Neoforma will categorize, organize and display all Products on the Novation Marketplace and the HPPI Marketplace in a manner consistent with that in which it organizes similar information on other Customized Marketplaces.

5.5

Reports and Meetings .

5.5.1 

Subject to obtaining the consent of the Members’ in accordance with Section 10, Neoforma will provide each of Novation, VHA, UHC and HPPI with real-time, on-line reports of its Members usage statistics and reports on other reasonable matters. Such reports shall be made available in the form of Excel ^™ files transferred via electronic transmission to Novation, VHA, UHC or HPPI, or in such other format as the Parties agree. The Parties will mutually agree as to the scope, format and substance of the standardized reporting system that Neoforma will develop and modify from time to time (at no extra charge) and that will be available to Novation, VHA, UHC and HPPI via the Internet.

5.5.2 

Neoforma and Novation shall establish and maintain a cross-functional management team in order to review operations of the Novation Marketplace. The cross-functional management team shall meet (each a “ Cross-Functional Management Team Meeting ”) no less frequently than on a quarterly basis. The cross-functional management team shall include the lead executive from each of Neoforma and Novation responsible for overseeing this Agreement, and shall also include management representatives from each of Neoforma and Novation from each functional area, including marketing, Member sales, Supplier relations, implementation and development. Additionally, one or more representatives from each of VHA and UHC shall be invited to participate in each Cross-Functional Management Team Meeting. In addition, Neoforma and Novation shall establish a strategic planning team to discuss the direction and strategy of the Novation Marketplace. The strategic planning team shall meet at least twice in each calendar year.

5.6

Retained Contracts . Either VHA or UHC may at any time elect to put their respective Retained Contracts on the Novation Marketplace. If the posting on the Novation Marketplace is merely informational and Members are not able to purchase, rent or lease Products covered by such Retained Contracts through the Marketplaces, no fees shall be paid for such posting and shall be treated in the same manner as other Contract Portfolio contracts. If during the Term, Novation Signs-up such Suppliers as Novation Suppliers, those new contracts shall then become subject to Sections 2 and 8 and shall be treated in the same manner as other Contract Portfolio contracts.

5.7

Marketing . Novation, VHA, UHC and HPPI will use commercially reasonable efforts to drive traffic to the Novation Marketplace and the HPPI Marketplace, including, without limitation, making appropriate introductions for Neoforma, allowing Neoforma preferred space and visibility at Member forums, presenting satellite broadcasts or web casting targeted at the Members, and otherwise in

accordance with the roles and responsibilities specified for each Party in any collaborative marketing agreement reached among the Parties. The current collaborative marketing agreement is attached hereto as Exhibit L. Novation, VHA and UHC will work with Neoforma to develop new initiatives targeted toward increasing Members’ participation on the Marketplaces, including the Novation Marketplace and the HPPI Marketplace.

5.8

Neoforma Auction .

5.8.1 

Novation, VHA, UHC and HPPI will promote the use of Neoforma’s asset management and recovery services and related activities of Neoforma Auction to patrons and others.

5.8.2 

Any Member wishing to utilize the Neoforma Auction and Neoforma’s asset management and recovery services shall enter into an Asset Recovery Services Agreement with Neoforma.

5.8.3 

Neoforma may delegate the performance of the asset management and recovery services to a third party appointed by Neoforma.

6.

EXCLUSIVITY AND RIGHT OF FIRST OFFER

6.1

Novation, VHA, UHC and HPPI Exclusivity . Except as provided in Section 6.3, each of Novation, HPPI, VHA and UHC agrees that it will not directly or indirectly develop, promote, contract for the development of, assist others to develop, or enter into any agreement with any other person to provide to any of them, or promote to their Members, any Internet-based marketplace related to Supply Chain Management Services by acute or non-acute healthcare providers anywhere in the world other than the Marketplaces.

6.2

Neoforma Exclusivity .

6.2.1 

Except as otherwise provided in Section 6.3, neither Neoforma nor its Affiliates will develop, promote, contract for the development of, assist others to develop, or enter into any agreement with any other person to provide, any Internet-based system related to the acquisition or disposal of equipment, products, supplies, services, information and other content by acute or non-acute healthcare providers anywhere in the world other than the Marketplaces.

6.3

Right of First Offer for Novation and Neoforma .

6.3.1 

If either Novation or Neoforma elects to commence an Internet-venture in any country other than the United States or in any market that is not then

served by a Customized Marketplace (whether in the United States or otherwise), such Party (the “ Offeror ”) shall offer to the other (the “ Offeree ”) the opportunity to participate in such venture in a manner commensurate with the Offeree’s role under this Agreement (including the right of Novation to create other contract portfolios similar to the Novation Contract Portfolio or to recruit suppliers for such venture). The Offeror shall provide full information to the Offeree regarding the venture, and shall make its senior executives available to meet with the Offeree to discuss the venture. The Offeror shall also notify the Offeree of such venture a reasonable time prior to commencement of the venture (but in no event less than 60 days prior to the date on which the Offeree must decide to participate). If after consideration the Offeree declines to participate in such venture, then, notwithstanding Section 6.1 or 6.2, as the case may be, the Offeror may proceed with such venture, but solely in that market or country, and on no less favorable terms and conditions in the aggregate as had been offered to the Offeree. In addition, the Offeree shall be released from its obligations under Section 6.1 or 6.2, as the case may be, but solely in respect of the market or country that was the subject of such Offer. If the Offeror subsequently does not consummate the venture, and the Offeror wishes to commence another venture in the same market or country, the Offeror must once again offer such opportunity to the Offeree. The Offeror shall have no obligation to share any fees earned in a venture in which the Offeree has not elected to participate. Neoforma and Novation shall work in good faith to provide software tools and services under this Agreement and in conjunction with the Novation Marketplace and the HPPI Marketplace that enable Novation, VHA and UHC to maintain competitive positions in their markets.

6.3.2 

Business development representatives of Neoforma and Novation shall meet on a quarterly basis to review existing opportunities in foreign markets and countries and to review existing opportunities in markets not then served by a Customized Marketplace. Such representatives shall prepare a joint plan to identify and exploit such other opportunities in foreign markets and in other healthcare markets. Any right of an Offeror to proceed with a venture under Subsection 6.3.1 without the Offeree shall be conditioned on such Offeror’s compliance with this Subsection 6.3.2.

6.4

First Offer for Non-Exclusive Services .

6.4.1 

The term “ Non-Exclusive Service(s) ” means Internet-related services available primarily through Neoforma that are outside the scope of Section 6.1, including, without limitation, the products and services excluded from the definition of Supply Chain Management Services as applied to UHC. For purposes of clarification, Non-Exclusive Services will not include

Internet-related services the majority of which are provided by an entity other than Neoforma. UHC shall give favorable consideration to Neoforma as a third-party provider to UHC of Non-Exclusive Services as follows: if (i) UHC elects to provide for itself or for the benefit of all or substantially all of UHC’s Members any new Non-Exclusive Service or (ii) UHC intends to replace any agreement for the provision of a Non-Exclusive Service then being provided to UHC by a third party, then UHC shall first offer to Neoforma the opportunity to provide such Non-Exclusive Service (the “ Opportunity ”). Promptly upon becoming aware of an Opportunity, UHC shall send notice of the Opportunity in electronic or paper writing to the Chief Executive Officer of Neoforma, or his or her designate. Promptly after receiving such notification, but in no less than 15 days, Neoforma shall meet with UHC to discuss the Opportunity and Neoforma’s proposed role therein. Neoforma and UHC shall continue to meet and discuss the Opportunity for the 30-day period commencing upon UHC’s notification to Neoforma. Neither UHC nor Neoforma will have any obligation to meet and to discuss the Opportunity (i) if Neoforma does not meet with UHC within the time required, or (ii) after the expiration of the 30-day discussion period. The communication by UHC to Neoforma of any Opportunity, including the ideas, concepts or other intellectual property contained therein, will be Confidential Information subject to Section 11.

6.4.2 

For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, in no event will UHC be required to obtain any Non-Exclusive Service from Neoforma.

7.

LICENSES AND OWNERSHIP

7.1

Ownership of Marks . Each Party will own and retain all right, title and interest in and to its intellectual property, including its trademarks, trade names, service marks and logos (“ Marks ”) worldwide, as specified in Exhibit A .

7.2

Novation Marks . Subject to the terms of this Agreement, Novation grants to Neoforma, VHA, UHC and HPPI a worldwide, nontransferable, non-exclusive, royalty-free license to use, transmit and display Novation’s Marks in connection with the Marketplaces during the Term of this Agreement, provided that such use is in accordance with Novation’s then-current trademark usage guidelines. A copy of Novation’s current trademark usage guidelines is attached as Exhibit B . Upon any change in such guidelines, Novation will promptly provide to Neoforma a copy of such revised usage guidelines. Neoforma will not modify the Novation Marks or combine any of the Novation Marks with any other mark or

term. Subject to the provisions of Section 9.9, upon termination or expiration of this Agreement, Neoforma will cease all use of the Novation Marks.

7.3

Neoforma Marks . Subject to the terms of this Agreement, Neoforma grants to Novation, VHA, UHC and HPPI a worldwide, nontransferable, non-exclusive, royalty-free license to use, transmit and display Neoforma’s Marks during the Term only in promotional materials used to encourage participation on the Marketplaces, provided that such use is in accordance with Neoforma’s then-current trademark usage guidelines. A copy of Neoforma’s current trademark usage guidelines is attached as Exhibit C . Upon any change in such guidelines, Neoforma will promptly provide to Novation, VHA, UHC and HPPI a copy of such revised usage guidelines. Except as authorized under this Agreement, Novation, VHA, UHC and HPPI will not modify any of the Neoforma Marks or combine the Neoforma Marks with any other mark or term. Subject to the provisions of Section 9.9, upon the termination or expiration of this Agreement, Novation, VHA, UHC and HPPI will cease all use of the Neoforma Marks.

7.4

VHA, UHC and HPPI Marks . Subject to the terms of this Agreement, each of VHA, UHC and HPPI grants to Novation and Neoforma a worldwide, nontransferable, non-exclusive, royalty-free license to use, transmit and display its Marks solely to promote the Marketplaces to the Members during the Term, provided that such use is in accordance with the then-current trademark usage guidelines of VHA, UHC and HPPI, as the case may be. A copy of each of VHA’s, UHC’s and HPPI’s current trademark usage guidelines are attached as Exhibit D . Except as authorized under this Agreement, Neoforma and Novation will not modify any of the Marks of VHA, UHC and HPPI or combine any of them with any other mark or term. Subject to the provisions of Section 9.9, upon the termination or expiration of this Agreement, Neoforma and Novation will cease all use of VHA’s, UHC’s and HPPI’s Marks.

7.5

Ownership of Neoforma Materials and Novation Materials . Neoforma and Novation will own and retain all worldwide right, title and interest in and to the Neoforma Materials and Novation Materials, respectively. Neither Neoforma nor Novation will alter or delete any copyright or other proprietary notice that may appear in the other Party’s Materials without prior written consent of such Party.

7.6

Neoforma Materials . Neoforma grants to Novation a worldwide, nontransferable, non-exclusive, royalty-free license to use the Neoforma Materials only in promotional materials used to encourage participation on the Marketplaces.

7.7

Novation Materials . Novation grants to Neoforma a worldwide, nontransferable, non-exclusive, royalty-free license to use the Novation Materials on the Marketplaces during the Term solely to enable Neoforma to provide the Services contemplated under this Agreement.

7.8

Development of Tools . From time to time during the Term, Novation may request Neoforma to design Tools for Members or Suppliers in addition to the Tools, functions and APIs, which will be mutually agreed upon and contained in the Functionality Roadmap. Within a reasonable time after such request, appropriate personnel from Novation and Neoforma will meet to discuss and draft technical specifications for the desired customized Tools, functions and APIs.

7.8.1 

If the Tool, function or API requested by Novation will be used by all Users of the Customized Marketplaces, Neoforma will develop such Tool, function or API promptly and at its own expense. Neoforma will own and retain all right, title and interest to all the intellectual property, including the source code, object code and other Confidential Information, in and to the Neoforma developed Tools, functions and APIs.

7.8.2 

If Neoforma does not otherwise agree to develop such Tool, function or API for use by all Users of the Customized Marketplaces, Novation may, in its sole discretion, agree to pay for the development of such Tool, function or API. If Novation agrees to pay Neoforma for the development of such Tool, function or API, Neoforma will promptly endeavor to develop such requested Tool, function or API, and Novation will own all right, title and interest to all the intellectual property, including all source code, object code and other Confidential Information, in and to such Tools, functions and APIs. Any fees charged to Novation for development of any Tool, function or API shall be provided by Neoforma at the most favorable fee Neoforma charges to any other person for such development or integration services.

7.8.3 

Nothing in this Section 7.8 shall limit Neoforma’s obligation to provide the Services as shall be set forth in the Functionality Roadmap.

7.9

Access License . Neoforma grants to Novation a non-exclusive, worldwide, non-assignable license to members of Novation and HPPI in order to access the Novation Marketplace and HPPI Marketplace. Novation and HPPI grant to Neoforma a non-exclusive, worldwide, non-assignable license to access the Novation and HPPI web sites and computer systems solely to enable Neoforma to provide the services contemplated under this Agreement.

8.

FEES AND TAXES

8.1

Fees .

8.1.1 

Neoforma and Novation shall each use its reasonable best efforts to collect all Transaction Fees required to be paid by each supplier that each signs up as a Supplier.

8.1.2

  Novation guarantees to Neoforma aggregate minimum Novation Marketplace Transaction Fees, which shall be calculated as a percentage (the “ Supplier Target Percentage ”) of the sum of (i) the Adjusted Gross Transaction Value and (ii) the Supply Chain Data Transaction Value on a per calendar quarter basis as set forth on Exhibit G (the “ Minimum Fees ”). Subject to Section 3.8 and Subsection 8.1.3, Novation shall pay to Neoforma the shortfall, if any, in any calendar quarter between the Minimum Fees calculated in accordance with this Section 8.1.2 and the Novation Marketplace Transaction Fees recognized by Neoforma in accordance with GAAP for such Quarter (each such payment, a “ Shortfall Payment ”).

8.1.3 

Notwithstanding anything in this Agreement to the contrary, Novation shall not be responsible for any Shortfall Payment: (i) to the extent that any part of the Shortfall Payment in any calendar quarter results from the termination by a Supplier of its agreement with Neoforma as a result of Neoforma’s breach of such Supplier agreement, (ii) in excess of eighteen million ($18,000,000) dollars for the third calendar quarter (running July 1 through September 30) of 2003, and fifteen million two hundred thousand ($15,200,000) for the fourth calendar quarter (running October 1 through December 31) of 2003, and (iii) beginning on January 1, 2004, the maximum quarterly Shortfall Payments shall not exceed fifteen million, two hundred and fifty thousand ($15,250,000) dollars per calendar quarter (the “ Maximum Quarterly Shortfall Payments ”).

8.2

Revenue Sharing .

8.2.1 

The Parties have agreed to the Target Fee Levels (the “ Target Fee Levels ”), set forth in Exhibit I .

8.2.2 

Neoforma shall pay to Novation 50% of any Novation Marketplace Transaction Fees recognized by Neoforma in accordance with GAAP in excess of the Target Fee Level for any given calendar quarter, but only if Novation has fulfilled its obligations under Subsection 8.1.2.

8.2.3 

Subject to Section 8.2.2, Neoforma shall retain all revenues it earns and collects, and Novation shall pay to Neoforma within thirty (30) days after the end of each calendar quarter, all revenues earned by Neoforma but collected by Novation (as the case may be) for the provision of the Novation Marketplace during that calendar quarter, including all

Transaction Fees and Neoforma Marketplace Transaction Fees, and revenue that would otherwise be subject to revenue sharing pursuant to Section 8.9 and 8.10.

8.3

Monthly Payment of Maximum Quarterly Shortfall Payments . On the 4 ^th Tuesday of each calendar month, Novation shall prepay to Neoforma an amount equal to one-third of that quarter’s Maximum Quarterly Shortfall Payments payable pursuant to Sections 8.1.2 and 8.1.3. Beginning in 2004, on or before March 15 of each year, Neoforma and Novation shall meet and agree on the amount of any “true-up adjustment” required to the Maximum Quarterly Shortfall Payment amounts for the preceding year pursuant to Sections 8.1.2 and 8.1.3 based on Adjusted Gross Transaction Values and Supply Chain Data Transaction Values for all purchases, rentals and leases of Products through the Novation Marketplace in such year. Neoforma and Novation shall apply any such “true-up adjustments” to subsequent Maximum Quarterly Shortfall Payments as mutually agreed to by them.

8.4

Reporting and Calculation of Fees and Revenue Sharing . To fulfill the obligations of Novation and Neoforma under Section 8.3 to agree on estimated and actual Shortfall Payments, before any meeting conducted pursuant to Section 8.3: (a) Novation will provide Neoforma with a written report of the revenues received by Novation for the provision of the Novation Marketplace (including Transaction Fees and Neoforma Marketplace Transaction Fees); and (b) Neoforma will provide each of Novation, VHA and UHC, with a written report of: (i) aggregate Adjusted Gross Transaction Values and Supply Chain Data Transaction Values for all purchases, rentals and leases of Products through the Novation Marketplace, (ii) the aggregate amount of any Transaction Fees received by Neoforma, (iii) the aggregate amount of any Novation Marketplace Transaction Fees received by Neoforma; (iv) the information set forth in Exhibit E and such other information as Novation may reasonably request; (v) revenue received by Neoforma from distribution or licensing of software and other technology solutions; and (vi) revenue received by Neoforma associated with Section 8.9 below. Neoforma and Novation shall then jointly calculate: (i) the Minimum Fees, (ii) any revenue sharing amounts under Sections 8.2, 8.9, and 8.10, and (iii) any other fees to be paid by a Party.

8.5

Benchmarking .

8.5.1 

Right to Benchmark . Beginning on January 1, 2003 and from time to time thereafter, either Novation or Neoforma may initiate an objective measurement and comparison process (the “ Benchmarking Process ”) in order to measure certain aspects of the Novation and Neoforma relationship.

8.5.2 

Benchmarking Process . In the case of a general Benchmarking Process, (i) either Novation or Neoforma may select and hire a benchmarker, which benchmarker shall be reasonably acceptable to the other Party, and the Party selecting such benchmarker shall pay all costs associated with the Benchmarking Process; or (ii) Novation and Neoforma shall mutually agree upon an independent, third party benchmarker and Novation and Neoforma shall share all costs associated with such shared benchmarking. In addition, in the case of a Benchmarking Process with respect to Supplier Target Percentages, or if Neoforma and Novation otherwise agree with respect to a general Benchmarking Process, Neoforma and Novation may rely on publicly available information in carrying out the Benchmarking Process, and to carry out the Benchmarking Process without the use of a third-party benchmarker. The Parties shall cooperate to facilitate the Benchmarking Process, including by providing reasonable information as is necessary to conduct the Benchmarking Process.

8.5.3 

General Benchmarking . The Benchmarking Process for general items shall review and measure (i) with respect to Neoforma, the technology and pricing provided by Neoforma to Novation, the technology offered to Members, the technology offered to Suppliers, the performance of the Services, and Neoforma’s costs incurred in performing its obligations under this Agreement and (ii) with respect to Novation, any Shortfall Payment as provided in Subsection 8.1.3 and, in each case, shall be based upon a comparison of the “like-for-like” items, including, without limitation, relative Service Levels, term of the Agreement, amount of investments made pursuant to or in connection with this Agreement and other material terms and conditions. If the Benchmark Results indicate that the services received by Novation or Neoforma, as the case may be, are not “best in class,” Neoforma and Novation shall promptly meet and enter into a good faith negotiation to determine whether there should be an adjustment to the Services, the pricing, the technology, the Service Levels and/or Novation’s limited agency obligations pursuant to Section 2.1 above; provided, however, that, the Parties shall not increase the maximum Shortfall Payment obligations of Novation.

8.5.4 

Supplier Target Percentages Benchmarking . The Benchmarking Process with respect to Supplier Target Percentages shall be based upon review of whether such Supplier Transaction Percentages are “market competitive”. If the Benchmark Results indicate that the Supplier Target Percentages in place during the period examined are not “market competitive,” then Neoforma and Novation shall promptly meet and adjust (either upwards or downwards) such Supplier Target Percentages so that they are market competitive. For the avoidance of doubt, the Parties agree that “market competitive” shall mean that (i) Suppliers are reasonably likely to agree to

pay such fees at such time or (ii) such fees are competitive with similar Transaction Fees paid by suppliers for similar services in similar e-commerce or related industries.

8.5.5 

Benchmark Results . Within 30 days after the completion of any Benchmarking Process, the benchmarker, if any, shall deliver the results of the benchmark (the “ Benchmark Results ”) in a written report, including identification of the figures and supporting documentation, to Novation and Neoforma. In the event that the Benchmarking Process does not utilize a third-party benchmarker, the Party initiating the Benchmarking Process shall be responsible for writing and delivering such report of the Benchmark Results to the other Party.

8.5.6 

Benchmark Review Period . For a period of 60 days following delivery of the Benchmark Results from the benchmarker (the “ Benchmark Review Period ”), Novation and Neoforma shall review the Benchmark Results, and schedule one or more meetings to address any issues either Party may have with the Benchmark Results.

8.5.7 

Benchmark Dispute . In the event Novation and Neoforma in good faith dispute the Benchmark Results or if Novation and Neoforma have not reached agreement after the Benchmark Review Period, Novation may dispute such outcome in accordance with the provisions of Section 18 hereto.

8.6

Taxes . Neoforma and Novation shall cooperate to minimize any local, state, national and foreign taxes (including, without limitation, sales, use and VAT taxes which may apply), licenses, export/import fees and any other fees or similar obligations relating to any sale, rental or lease of a Contract Product through the Marketplaces or relating to the Supply Chain Data. If in the future any such taxes or similar obligations are required to be paid by Neoforma or Novation in respect of Contract Products, such fees shall be shared by Neoforma and Novation proportionately based on revenues each derives from the Novation Marketplace and HPPI Marketplace. In no event shall Novation be required to share any taxes under this Section 8.6 for Products other than Products for which Novation receives Novation Marketplace Transaction Fees.

8.7

New Markets . If Neoforma and Novation agree pursuant to Section 6.3 to enter any other healthcare market (other than the United States acute care market) that is not then served by a Customized Marketplace or that is in countries outside of the United States, Neoforma and Novation shall negotiate in good faith to set the Transaction Fees to be paid in respect of such products to be purchased, rented and leased on such Customized Marketplace.

8.8

Product Returns . Neoforma and Novation will cooperate in good faith to make any adjustments to the fees to be paid hereunder to reflect Products that have been returned by Users.

8.9

Neoforma Auction and other GPO and non-GPO marketplaces . Beginning January 1, 2002, Neoforma shall pay to Novation on a calendar quarter basis 15% of any revenue received by Neoforma from Suppliers that is recognized by Neoforma in accordance with GAAP from (i) Neoforma Auction (and any successor marketplaces providing substantially similar services), (ii) other non-GPO Marketplaces (excluding MedBuy, the Canadian Health Marketplace, and EquipMD Non-acute Marketplace), and (iii) all purchases, rentals and leases of Non-Contract Products of other GPO Marketplaces from Suppliers that Novation has Signed-up for such Customized Marketplace.

8.10

Distribution or Licensing of Software and other Technology Solutions . Neoforma will pay to Novation 10% of revenue received by Neoforma from Suppliers that is recognized by Neoforma in accordance with GAAP in connection with the distribution or licensing of software and other technology solutions, whether to buyers or suppliers, but not including any software or other technology solutions in any way related to Neoforma Auction. For the avoidance of doubt, the Parties agree that this Section 8.10 shall not limit the scope of Section 6.2.1.

8.11

Other Expenses . Neither Neoforma nor Novation shall be required to pay to the other Party any amounts for the performance of their respective obligations hereunder other than those expressly set forth in this Agreement.

8.12

Amendments to Section 8 .

(i)

Any Party may, upon reasonable notice, require the Parties to meet at a mutually agreed time and place and negotiate in good faith to amend or change Sections 8.1.2, 8.1.3, 8.2.1 and 8.3 of this Agreement no more than two-hundred seventy (270) but no less than one-hundred eighty (180) days prior to the expiration of the Initial Term and renewal of this Agreement, pursuant to Sections 9.1 and 9.2 below.

(ii)

Novation may, upon reasonable notice, require the Parties to meet at a mutually agreed upon time and place and negotiate in good faith to amend or change Sections 8.1.2, 8.1.3, 8.2.1 and 8.3 of this Agreement at any time during the Term of this Agreement, in the event of a Catastrophic Change for Novation. For the purposes of this Section 8.12, a “ Catastrophic Change ” means a decline of more than twenty percent (20%) of the combined revenue of VHA and UHC from Suppliers in any twelve month period as compared to such Supplier revenue for the

immediately preceding twelve month period. For example, if the combined revenue of VHA and UHC has declined in the period from April 1, 2004 to March 31, 2005 more than 20% when compared with such combined revenue for the period from April 1, 2003 to March 31, 2004, a Catastrophic Change shall be deemed to have occurred.

9.

TERM AND TERMINATION

9.1

Initial Term . This Agreement commences on the Original Effective Date and will remain in effect for an initial term of 10 years (the “ Initial Term ”), unless terminated earlier in accordance with the terms of this Agreement.

9.2

Renewal and Extension of Term . This Agreement will automatically renew for successive one-year terms after the completion of the Initial Term (each a “ Renewal Term ”) unless Neoforma or Novation provides written notice of its intention to terminate this Agreement to the other at least 90 days prior to the end of the Initial Term or any then-current Renewal Term. The Initial Term and any and all renewals or extensions thereof and any Termination Assistance Period are referred to herein as the “ Term ”.

9.3

Termination for Cause or Failure to Amend .

9.4

Termination for Insolvency Events. If either Neoforma or Novation is unable to obtain credit from any creditors, becomes insolvent, makes an assignment for the benefit of its creditors, or becomes the subject of a proceeding under Title 11 of the United States Code, as amended, or becomes the subject of similar state court proceedings, then in any such case, the other Party, or in the case of Neoforma, VHA, UHC or HPPI, may, without prejudice to any other rights, immediately terminate this Agreement or, if such termination is subject to any statutory provision or judicial order staying such action, seek leave to modify such stay so as to terminate this Agreement. Each of Neoforma and Novation acknowledges and agrees that its insolvency, the making of an assignment for the benefit of its creditors, or its becoming the subject of a proceeding under Title 11 of the United States Code, is “cause” for the termination of any statutory or judicial stay of the rights of the other Party to terminate this Agreement. Each of Neoforma and Novation acknowledges and agrees that, in such event, it could not provide “adequate protection” to the other Party, or in the case of Neoforma, to VHA, UHC or HPPI, that the continued imposition of a stay would likely cause irreparable harm to the other Party, and the continued imposition of a stay would adversely affect the health, safety and welfare of communities served by the Parties.

9.5

Termination for Rejection in Bankruptcy . Each of Neoforma and Novation will have the right to immediately terminate this Agreement if the other Party becomes a debtor or an alleged debtor in a case under Title 11 of the United States Code, as amended, and in such proceeding this Agreement is rejected in such case in accordance with Title 11 of the United States Code.

9.6

Termination Upon Neoforma Change of Control . Novation may terminate this Agreement upon any Neoforma Change of Control.

9.7

Return of Materials . Subject to Section 9.8, upon termination or expiration of this Agreement for any reason, each of Neoforma and Novation shall promptly return to the other Party, and shall not take, use or disclose, all Products of any nature that belong to the other Party and all records (in any form, format or medium) containing or relating to Neoforma Materials or Novation Materials or the Confidential Information of the other Party.

9.8

Survival . The provisions of Sections 7.1, 7.5, 8.4, 9.7, 9.8, 9.9, 9.10, 10, 11, 15, 16, 17, 18, 19 and 20 will survive termination or expiration of this Agreement for any reason.

9.9

Termination Assistance Services .

9.9.1 

General . Upon any termination or expiration of this Agreement, Neoforma shall provide termination assistance and shall comply with the

reasonable directions of Novation, or, if applicable, VHA or UHC, to allow the Services to continue without interruption or adverse effect and to facilitate the orderly transition and migration of all Services then being performed by Neoforma, including any transition and migration from Neoforma to Novation or, if applicable, VHA and UHC, (or a third-party provider undertaking, on behalf of Novation, VHA or UHC, to provide the Services) (the “ Termination Assistance Services ”), all in accordance with this Section 9. Additionally, all of Novation’s, or, if applicable, VHA’s and UHC’s, rights under this Agreement (including, without limitation, the right to license software hereunder), as such rights exist immediately prior to any expiration or termination, but excluding any right to share Novation Marketplace Transaction Fees with Neoforma pursuant to Section 8, shall continue during any Termination Assistance Period (as defined in Section 9.9.2). Novation or, if applicable, VHA and UHC, shall cooperate in good faith with Neoforma in connection with Neoforma’s obligations under this Section 9.

9.9.2 

Termination Assistance Period . Neoforma shall commence providing Termination Assistance Services (i) with respect to the scheduled expiration of this Agreement, 90 days prior to such scheduled expiration or such earlier date as Novation may reasonably request, and (ii) with respect to any termination of this Agreement, upon the delivery of the notice of termination. Neoforma shall continue providing Termination Assistance Services through the effective date of the expiration or termination of this Agreement and for a period of not less than 180 days thereafter (the “ Termination Assistance Period ”). Upon at least 30 days prior written notice to Neoforma, Novation or, if applicable, each of VHA and UHC, may extend, from time to time, the Termination Assistance Period for an additional 90-day period. During any Termination Assistance Period, Neoforma shall provide, at Novation’s request, or, if applicable, VHA’s or UHC’s request, as applicable, as part of the Termination Assistance Services, any or all of the Services being provided by Neoforma prior to the date of the expiration or termination of this Agreement.

9.9.3 

Termination Plan . Neoforma and Novation or, if applicable, VHA and UHC, shall cooperate in good faith to develop a termination plan setting forth the respective tasks to be accomplished by each Party in connection with the termination and a schedule pursuant to which such tasks are to be completed in accordance with the Termination Assistance Services (collectively, the “ Termination Plan ”).

9.9.4 

Certain Licenses . As of the Original Effective Date, Neoforma shall grant the following to Novation:

(i)

a fully-paid license to all third-party software that is required to provide the Services, to the extent Neoforma is entitled to sublicense such software, and to the extent Neoforma is not entitled to sublicense such software, Neoforma shall provide a list of all third-party software licenses that are required to provide the Services and shall assist Novation in licensing a substantially similar software at a commercially reasonable price; and

(ii)

a nonexclusive, non-transferable fully-paid perpetual license, solely for Novation’s internal use, to all Neoforma-owned software that is required to provide the Services. For the avoidance of doubt, “internal use” as used in this Section 9.9.4 shall include the right of other Internet marketplaces or providers to use the software solely on behalf of Novation for its Members. In addition, Neoforma shall provide to Novation consulting services, at no charge to Novation, as may be reasonably required in order to recreate the Marketplace environment for Novation.

(iii)

Additionally, if at any time after the Original Effective Date Neoforma begins using any software to provide the Services, then Neoforma shall be deemed to have granted, as of the first date on which such software is used to provide the Services and for so long as such software is either used or required to provide the Services, the following licenses to Novation: (x) with respect to third-party software, a fully-paid license to such software, to the extent Neoforma is entitled to sublicense such software, and (y) with respect to Neoforma-owned software, a nonexclusive, nontransferable, fully-paid, perpetual license, solely for Novation’s internal use, to such software.

(iv)

Notwithstanding the other provisions in this Section 9.9.4, Novation shall not use such licenses until the effective date of the termination of this Agreement in accordance with Section 9.3, 9.4, or 9.5.

9.9.5 

Equitable Remedies . Neoforma acknowledges that, if it breaches (or attempts or threatens to breach) its obligation to provide Novation or, if applicable, VHA and UHC, Termination Assistance Services in accordance with this Section 9.9, Novation or, if applicable, VHA and UHC, will be irreparably harmed. In such circumstance, and notwithstanding the provisions of Section 18, Novation or, if applicable, each of VHA and UHC, may proceed directly to court. If a court of competent jurisdiction should find that Neoforma has breached (or attempted or threatened to breach) any such obligations, Neoforma agrees

that even without any additional findings of irreparable injury or other conditions to injunctive relief, it shall not oppose the entry of an appropriate order compelling performance by Neoforma restraining it from further breaches (or attempted or threatened breaches).

9.10

Third Party Products . Notwithstanding anything in this Agreement to the contrary, prior to entering any agreement with a third party for the provision of software (other than providers of off the shelf software) (the “ Third Party Products ”), Neoforma shall use commercially reasonable and good faith efforts to obtain the agreement of each provider of a Third Party Product that such Third Party Product may be assigned and/or sublicensed without additional charge to each and any of Neoforma, VHA or UHC. If Neoforma is not able to obtain such written agreement or, in the event that Neoforma is informed that such provision will be made available at additional cost to Neoforma, Neoforma shall promptly provide notice of such to each of Novation, VHA and UHC, setting forth with particularity in such notice the nature of the proposed Third Party Product, the nature of the assignment and/or sublicense proposed, the agreement to be signed and, if applicable, the additional cost for the required assignment and/or sublicense provision. Each of Novation, VHA and UHC shall have one business day after the receipt of such notice from Neoforma to advise Neoforma as to whether Novation, VHA or UHC, or any of them or any combination of them, agrees to pay the additional cost involved for the proposed assignment and/or sublicense provision. Failure of Novation, VHA or UHC to advise Neoforma of its decision within one business day after the receipt of notice from Neoforma shall be deemed an affirmative refusal to pay additional amounts required to obtain the proffered assignment and/or sublicense provision and, provided that the agreement is not materially modified in a manner that might cause the sublicense and/or assignment provision to be renegotiated in a manner more favorable to Novation, VHA or UHC, Neoforma may proceed to enter into the agreement for such Third Party Product without further obligation to Novation, VHA or Neoforma under this Section 9.10.

10.

USER DATA

10.1

Registration . Users who are representatives of Members will be required to register as a representative of a Member prior to using the Novation Marketplace. To effect such registration, Neoforma will require that each Member or other User complete a registration form in form and substance reasonably acceptable to Novation, which form shall request, among other things, submission of contact information regarding the User, including, without limitation, the User’s name, name of the Member organization, mailing address, and email address. Neoforma will verify such information against the on-line data base information made available by Novation and ensure that such registration is authorized in accordance with registration and password issuance and protection procedures

acceptable to Neoforma and in accordance with the Functionality Roadmap to be mutually agreed upon. Neoforma will store data collected during registration as part of the Information in the Transaction Database.

10.2

Transaction Database . Neoforma will create and maintain the Transaction Database relating to all activity occurring on the Novation Marketplace and relating to Supply Chain Data in accordance with the Functionality Roadmap to be mutually agreed upon. Novation and Neoforma shall only use Information in accordance with the provisions of this Section 10. Neoforma shall at all times make all Information available to Novation in any manner that it is, or can reasonably be, made available.

10.3

Member Data . Members shall own their respective Member Data. Novation will use commercially reasonable efforts to acquire a nonexclusive, non-transferable license from Members (or sublicense from VHA, UHC or HPPI) to permit:

(i)

Novation to access and use such Member Data for, among other things, (A) legal compliance purposes, (B) to track the performance of Suppliers, (C) to be able to track payments to VHA, UHC and HPPI and cooperative payments to the Members, (D) to consult with each of the Members and (E) to promote utilization and standardization among Members; and

(ii)

Neoforma to use such Member Data provided that such use is (A) solely related to the performance of Neoforma’s obligations pursuant to this Agreement and (B) in accordance with the confidentiality provisions of Section 11.

10.4

Aggregated Member Data . Subject to the receipt of a license or sublicense for use of the Member Data, Novation shall own the Aggregated Member Data.

10.5

Transaction Database . Subject to the ownership rights of the Members in Member Data and of Novation in Aggregated Member Data, Neoforma shall own the derivative works created by using the Member Data and the Aggregated Member Data, provided that no such information may be used by Neoforma other than subject to the following conditions:

(i)

in accordance with the license or sublicense to be obtained from Members in accordance with the provisions of Subsection 10.3 (ii); or

(ii)

is provided as Blinded Aggregated Data.

10.6

License Grant of Information to Novation .

10.6.1 

Subject to the terms and conditions of this Agreement, Neoforma hereby grants to Novation a nonexclusive, non-transferable license during the

Term to access and use the Information and Blinded Aggregated Data; provided , however , that (i) such use is solely for Novation’s internal use and for the sublicensing of the use of such data to VHA, UHC and HPPI for their use in serving the needs of their Members ( provided that a Party may not license, sell or otherwise make available the Information), (ii) such use complies with the privacy policy in existence on the Novation Marketplace at the time of such use and (iii) Novation, VHA, UHC and HPPI each treat such Information as Confidential Information subject to Section 11 of this Agreement. Notwithstanding anything to the contrary in this Agreement, Novation may not access Blinded Aggregated Data to the extent the source of such information contractually prohibits Neoforma from making such information available to Novation. In the event Neoforma is contractually prohibited in such a manner, Neoforma shall use commercially reasonable efforts to provide Novation access to that Blinded Aggregated Data which can be prepared by redacting the information of such third parties with whom Neoforma has a contractual prohibition.

10.6.2 

Subject to the terms and conditions of this Agreement, Neoforma hereby grants to Novation a nonexclusive, non-transferable license, to sublicense the Information described in Section 10.5 to Suppliers.

10.6.3 

With respect to the Information sublicensed by Novation under Subsection 10.6.2, Novation will keep 25% of the gross license fees and the remaining 75% of such license fees shall be paid to Neoforma.

10.7

No Other Licenses or Use . Except as expressly set forth in this Section 10, none of the Members, Novation or Neoforma grants any license, express or implied, in the Member Data, Aggregated Member Data or Information. The failure to abide by the terms and conditions of this Section 10 shall constitute a material default of this Agreement.

10.8

Other Data . Neoforma and Novation acknowledge that all other data that a Party gathers or develops independent of this Agreement shall not be covered by this Agreement, provided that Neoforma shall not solicit any information from a Member without fully disclosing to the Member all intended uses for which such information is being collected and will be used.

10.9

Neoforma Information . Notwithstanding anything herein to the contrary, Neoforma may use the Neoforma Information in any manner that it chooses, provided that such information does not include Member Data or Aggregated Member Data.

11.

SAFEGUARDING OF DATA; CONFIDENTIALITY

11.1

Novation Data .

11.1.1 

Generally . As between Neoforma and its Affiliates, on the one hand, and Novation and its Affiliates, on the other hand, information relating to Novation, VHA or UHC or their respective Affiliates, Members or customers, whether or not marked “confidential” and whether disclosed in tangible or in intangible ( e.g. , oral or visual) form, including, without limitation, (i) information regarding the operations, affairs and business of Novation, VHA or UHC, or their respective Affiliates, Members or customers, (ii) Novation Materials and (iii) all Transaction Data, except as provided in Section 10, (collectively, the “ Novation Data ”) is confidential and will be subject to Section 11.2. Novation Data is the property of Novation, VHA or UHC, or their respective Affiliates, Members or customers. Neoforma shall have access to and may make use of Novation Data to the extent reasonably necessary to perform its obligations under this Agreement. Neoforma shall not, however, use Novation Data for any purpose other than providing Services, except as provided in Section 10. Upon termination or expiration of this Agreement for any reason, or upon Novation’s request, Neoforma shall promptly return to Novation all of the Novation Data in Neoforma’s possession (including backup or archival copies).

11.1.2 

Safeguarding of Data . Neoforma shall maintain appropriate safeguards, consistent with prevailing industry standards, against the destruction, inappropriate disclosure, wrongful access or use, loss or alteration of the Novation Data in the possession of Neoforma. In any event, Neoforma shall maintain safeguards that are no less rigorous than those maintained by Neoforma for its own information of a similar nature and, in no event, less than a reasonable level of safeguards.

11.2

Confidentiality .

11.2.1 

Confidential Information . “ Confidential Information ” means (i) business or technical information of any Party, including, without limitation, information relating to a Party’s product plans, designs, costs, product prices, finances, marketing plans, business opportunities, personnel, research, development, know-how or the pricing information available to Members, (ii) any information communicated with respect to an Opportunity, including the ideas, concepts or other intellectual property contained therein, (iii) any information designated “confidential” or “proprietary” or which, under the circumstances, should reasonably have

been understood to be confidential, (iv) Novation Data and (v) the terms and conditions of this Agreement.

11.2.2 

Confidentiality Obligations . Each Party agrees that (i) it will not use or disclose to any other party or third person including its Affiliates any Confidential Information disclosed to it by any other party except as contemplated by this Agreement and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of each other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

11.2.3 

Exclusions . Subsection 11.2.2 will not prevent a Party from disclosing Information that (i) is owned by such Party or its Affiliates or is already known by the recipient Party or its Affiliates without an obligation of confidentiality other than under this Agreement, (ii) is publicly known or becomes publicly known through no unauthorized act of the recipient Party, (iii) is rightfully received from a third party, provided that the source is not known to be bound by a confidentiality agreement or (iv) is independently developed by employees of a Party or an Affiliate of a Party without use of the other Party’s Confidential Information. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, (i) provides the Party that owns the Confidential Information with timely prior notice of such requirement and coordinates with such other Party in an effort to limit the nature and scope of such required disclosure and (ii) uses commercially reasonable efforts to ensure that, within applicable law, such Confidential Information will not be further disclosed. If Confidential Information is required to be disclosed in connection with the conduct of any arbitration proceeding conducted pursuant to Section 18, such Confidential Information may be disclosed pursuant to and in accordance with the approval and at the direction of the arbitrator conducting such proceeding. Upon written request at the termination or expiration of this Agreement for any reason, all such Confidential Information in tangible form (and all copies thereof) owned by the requesting Party or its Affiliates will be returned to the requesting Party or at the requesting Party’s option will be destroyed, with written certification thereof being given to the requesting Party, and subject to any rights expressly granted to the other Party under this Agreement, the other Party shall cease all further use of any Confidential Information, whether tangible or intangible.

11.2.4 

No License . Nothing contained in this Section 11.2 will be construed as obligating a Party to disclose its Confidential Information to another party, or as granting to or conferring on a Party, expressly or implied, any patent, copyright, trademark, trade name, trade secret or other Intellectual Property Rights or any license to the Confidential Information of the other Party.

11.2.5 

Loss of Confidential Information . In the event of any breach by the recipient Party of this Section 11.2 that results in a disclosure or loss of, or inability to account for, any Confidential Information of the furnishing Party, the receiving Party shall promptly, at its own expense, (i) notify the furnishing Party in writing, (ii) take such commercially reasonable actions as may be necessary or reasonably requested by the furnishing Party to minimize the breach, and (iii) cooperate in all reasonable respects with the furnishing Party to minimize the breach and any damage resulting therefrom.

12.

REPRESENTATIONS AND WARRANTIES

12.1

Representations by Neoforma . Neoforma represents and warrants to Novation, VHA, UHC and HPPI that each of the following statements in this Section 12.1 are true and correct as of March 30, 2000.

12.1.1 

Due Organization . Neoforma is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

12.1.2 

Authority; Non-Contravention .

(a)

Neoforma has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Neoforma. This Agreement has been duly executed and delivered by Neoforma, and it constitutes the valid and binding obligation of Neoforma, enforceable against Neoforma in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity.

(b)

The execution and delivery of this Agreement by Neoforma does not, and the performance of this Agreement by Neoforma will not, (i) conflict with or violate the Certificate of Incorporation or

Bylaws of Neoforma, (ii) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Neoforma or by which Neoforma or any of its properties is bound or affected or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair Neoforma’s rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an encumbrance on any of the properties or assets of Neoforma pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise or other instrument or obligation to which Neoforma is a party or by which Neoforma or its assets is bound or affected, except, in the case of clauses (ii) and (iii), for such conflicts, violations, breaches, defaults, impairments, or rights which, individually or in the aggregate, would not have a material adverse effect on Neoforma.

(c)

No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required to be obtained or made by Neoforma in connection with the execution, delivery and performance of this Agreement.

12.1.3 

Performance . All Services will be performed in a professional and workmanlike manner, consistent with the high professional standards and practices prevailing in the Internet e-commerce services industry.

12.2

Representations by Novation, VHA, UHC and HPPI . Each of Novation, VHA, UHC and HPPI, severally and not jointly, represents and warrants to Neoforma that the following statements made by it in this Section 12.2 are true and correct as of the Effective Date of this Agreement.

12.2.1 

Due Organization . Novation is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware; UHC is a corporation duly organized, validly existing and in good standing under the laws of the State of Illinois; VHA is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; HPPI is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

12.2.2 

Authority; Non-Contravention .

(a)

Each of Novation and HPPI has all requisite limited liability company power and authority, and each of VHA and UHC has all

requisite corporate power and authority, to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the parts of Novation and HPPI and all necessary corporate action on the parts of VHA and UHC. This Agreement has been duly executed and delivered by Novation, VHA, UHC and HPPI, and it constitutes the valid and binding obligation of each of Novation, VHA, UHC and HPPI, enforceable against each of Novation, VHA, UHC and HPPI in accordance with its terms, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity.

(b)

The execution and delivery of this Agreement by Novation, VHA, UHC and HPPI does not, and the performance of this Agreement by each of Novation, VHA, UHC and HPPI will not, (i) conflict with or violate the limited liability company and corporate organizational documents, respectively, (ii) conflict with or violate any law, rule, regulation, order, judgment or decree applicable to Novation, VHA, UHC or HPPI or by which Novation, VHA, UHC or HPPI, or any of their respective properties are bound or affected, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair Novation’s, VHA’s, UHC’s or HPPI’s rights or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an encumbrance on any of the properties or assets of Novation, VHA, UHC or HPPI pursuant to, any note, bond, mortgage, indenture, agreement, lease, license, permit, franchise or other instrument or obligation to which Novation, VHA, UHC or HPPI is a party or by which Novation, VHA, UHC or HPPI, or any of their assets, is bound or affected, except, in the case of clauses (ii) and (iii), for such conflicts, violations, breaches, defaults, impairments, or rights which, individually or in the aggregate, would not have a material adverse effect on Novation, VHA, UHC and HPPI, respectively.

(c)

No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required to be obtained or made by Novation, VHA, UHC or HPPI in connection with the execution, delivery and performance of this Agreement.

12.3

Warranty Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

13.

USE OF SUBCONTRACTORS

13.1

Generally . Neoforma may subcontract its obligations under this Agreement subject to the limitations imposed by this Section 13.1. Neoforma shall not subcontract any of the following without the prior written consent of Novation, such consent not to be unreasonably withheld:

(i)

any Services involving any contact or interface with Members, including, without limitation, sales efforts, implementation and integration and call center services; or

(ii)

any Services to a Novation Competitor.

13.2

Novation’s Right to Revoke Approval . Novation shall have the right during the Term to revoke its prior approval of a subcontractor and direct Neoforma to replace such subcontractor as soon as possible if the subcontractor’s performance is materially deficient, good faith doubts exist concerning the subcontractor’s ability to render future performance because of changes in the subcontractor’s ownership, management, financial condition, or otherwise, or there have been material misrepresentations by or concerning the subcontractor.

13.3

Continuing Responsibility . Neoforma shall remain responsible for obligations performed by subcontractors to the same extent as if such obligations were performed by Neoforma’s employees. Neoforma shall be Novation’s sole point of contact regarding the Services, including with respect to payment.

13.4

Confidential Information . Neoforma shall not disclose Confidential Information of any of Novation, VHA, UHC or HPPI to a subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information as required of Neoforma under this Agreement.

14.

INSURANCE

14.1

Insurance. Each of Neoforma and Novation shall determine the types and amounts of insurance coverage it requires in connection with this Agreement, including, without limitation, general public liability, property damage and workers compensation insurance. Neither Neoforma nor Novation is required to

obtain insurance for the benefit of the other, including, without limitation, business interruption insurance. Each of Neoforma and Novation will pay all costs and receive all benefits under policies arranged by it, and each waives rights of subrogation it may otherwise have regarding the other’s insurance policies.

14.2

Proof of Insurance. When requested by Neoforma or Novation, an insurance certificate indicating the coverage described in Section 14.1, issued by an insurance company licensed to do business in the relevant state or states and signed by an authorized agent, shall be furnished by the insured Party to the requesting Party. Each of Neoforma and Novation shall provide the other with at least 30 days prior written notice of any cancellation or material modification of such insurance.

15.

INDEMNITY

15.1

Neoforma Indemnity . Subject to Section 15.4, Neoforma shall indemnify, defend and hold harmless each of Novation, VHA, UHC and HPPI and each of their Affiliates, officers, directors, employees, consultants and agents from and against any and all damages, liabilities, claims, actions, suits, proceedings, costs, charges and expenses, including reasonable attorneys’ fees (collectively, “ Losses ”), incurred or sustained by any of such persons as a result of or from any third-party claim relating to (i) any claims based on Neoforma’s confidentiality obligations contained in Section 11 or its warranties contained in Section 12; (ii) the failure of Neoforma to perform any of its obligations under any agreement between Neoforma and a third party (including, without limitation, any agreements between Neoforma and a Supplier); (iii) any claims arising out of Neoforma’s breach of this Agreement; (iv) any claim arising out of the death of or bodily injury to any employee of any of Novation, VHA, UHC and HPPI and each of their Affiliates (or their respective subcontractors) to the extent caused by the negligence or willful misconduct of Neoforma or its Affiliates; (v) the loss of or damage to the real or tangible personal property (whether owned or leased) of each of Novation, VHA, UHC and HPPI and each of their Affiliates, officers, directors, employees, consultants and agents to the extent caused by the negligence or willful misconduct of Neoforma or its Affiliates; (vi) any third-party claim that arises in connection with the use by any of Novation, VHA, UHC and HPPI and each of their Affiliates of any deliverables or services provided by Neoforma to any of Novation, VHA, UHC and HPPI and each of their Affiliates under this Agreement, except to the extent covered by Novation’s indemnities set forth in Section 15.2; (vii) Neoforma’s failure to pay and discharge any taxes (including interest and penalties) for which Neoforma is responsible pursuant to the terms of this Agreement; (viii) any claim asserted against any of Novation, VHA, UHC and HPPI and each of their Affiliates by an employee of Neoforma to the extent such claim arises from decisions, acts, omissions or violations of statute by Neoforma with respect to such employee’s employee/employer relationship

with Neoforma and (ix) any claims arising out of a violation by Neoforma of data rights that Novation and Suppliers have agreed upon in accordance with Section 2.2.1 (other than Infringement Claims, which are subject to Section 15.3).

15.2

Novation Indemnity . Subject to Section 15.4, Novation shall indemnify, defend and hold harmless each of Neoforma and its Affiliates, officers, directors, employees, consultants and agents from and against any and all Losses awarded against or paid in settlement by Neoforma, incurred or sustained by any of such persons as a result of or from any third-party claim relating to (i) any claims based on Novation’s confidentiality obligations contained in Section 11 or its warranties contained in Section 12; (ii) the failure of Novation to perform any of its obligations under any agreement between Novation and a third party; (iii) any claims arising out of Novation’s breach of this Agreement; (iv) any claim arising out of the death of or bodily injury to any employee of Neoforma or its Affiliates (or their respective subcontractors) to the extent caused by the negligence or willful misconduct of Novation or its Affiliates; (v) the loss of or damage to the real or tangible personal property (whether owned or leased) of Neoforma and its Affiliates, officers, directors, employees, consultants and agents to the extent caused by the negligence or willful misconduct of Novation or its Affiliates; (vi) any third-party claim that arises in connection with the use by Neoforma and its Affiliates or any deliverables or services provided by Novation to any of Neoforma or its Affiliates under this Agreement, except to the extent covered by Neoforma’s indemnities set forth in Section 15.1; (vii) Novation’s failure to pay and discharge any taxes (including interest and penalties) for which Novation is responsible pursuant to the terms of this Agreement; (viii) any claim asserted against Neoforma by an employee of Novation to the extent such claim arises from decisions, acts, omissions or violations of statute by Novation with respect to such employee’s employee/employer relationship with Novation and (ix) any claims arising out of a violation by Novation of data rights that Novation and Suppliers have agreed upon in accordance with Section 2.2.1 (other than Infringement Claims, which are subject to Section 15.3).

15.3

Infringement Claims .

15.3.1 

Each of Neoforma and Novation, at their respective expense, shall indemnify, defend and hold harmless the other Party and its Affiliates, and their respective officers, directors, employees, consultants, agents, successors and assigns, from and against any and all Losses arising from any Services, software, hardware or the indemnitor’s Materials (“ Item(s) ”) provided or delivered by the indemnitor to the indemnitee under this Agreement, when used in conformity with all applicable written instructions and documentation, (i) infringes any patent in any country that is a signatory to the Patent Cooperation Treaty, (ii) infringes any copyright in any country that is a signatory to the Berne Convention for the