CDHP Marketing Plan
Agreement
This Marketing Plan Agreement
(the “ Agreement ”) is made as of
September 25, 2006, by and between WebMD Health Corp., with
offices at 111 Eighth Avenue, New York, NY 10011 (“
WebMD ”), EBS Master LLC (“ Master LLC
”), Envoy Corporation (“ Envoy ”), and
Advanced Business Fulfillment LLC (“ ABF
”).
WHEREAS ,
WebMD, Envoy and Master LLC have entered into the Amended and
Restated Business Services Agreement dated as of September 25,
2006 (the “ BSA ”);
WHEREAS ,
ABF provides print EOB services, which include printing, copying
and mailing EOBs directly to participating members and ABF
generally charges service fees for such EOB services as well as
pass-through fees for paper, other materials, printing, inserting
and postage costs, and is seeking to provide an EEOB that is
intended to replace print EOBs and provide similar capability in an
electronic format;
WHEREAS ,
in general the parties contemplate offering customers the
opportunity to reduce costs when they shift participating members
from paper EOBs to electronic EOBs;
WHEREAS,
WebMD has developed or licensed certain proprietary interactive
online personal health management products and tools which are
hosted on servers and made available by means of the
Internet,
WHEREAS,
ABF is in the business of providing outsourcing of paid-claims
communications services to its Customers, such as printing and
mailing of checks and remittance advices to providers and EOBs to
plan members (the “ ABF Services ”);
and
WHEREAS ,
the parties contemplate offering certain of WebMD’s online
health management services in connection with electronic EEOBs as
provided herein to certain ABF customers and the offering by ABF of
a personal financial record in conjunction with ABF Services to
certain other customers as provided herein, subject to the terms of
this Agreement described herein.
NOW,
THEREFORE , in consideration of the covenants contained in this
Agreement, the Parties, intending to be legally bound, agree as
follows:
Unless
otherwise defined in the Glossary, the capitalized terms used in
this Agreement shall be defined in the context in which they are
used.
Section 2. OWNERSHIP OF INTELLECTUAL
PROPERTY; GRANT OF LICENSES; MARKETING OF TOOLS.
2.1. Subject to the terms of this Agreement, WebMD
grants to ABF a non-exclusive, non-transferable, limited right and
license during the term of this Agreement to: (a) access,
display, perform, and use the Tools, the Personal Financial Record
Application, Customized Pages and Promotional Material as expressly
set forth in this Agreement; and (b) grant End Users and
Customers the right to access, display, perform and use the Tools,
the Personal Record Application and Customized Pages for personal,
non-commercial purposes associated with their use of the WebMD
portal provided for End Users’ access with no right to
sublicense (the “ Site ”). Nothing herein will
be construed as a right to allow ABF to offer the Tools or Personal
Financial Record Application to any third party in any manner other
than as provided herein. ABF shall enter into an agreement with
each ABF Customer pursuant to which it provides the Tools to such
Customer pursuant to Section 2.8 and each Third Party pursuant
to which it provides the Personal Financial Record Application
pursuant to Section 2.10. Any agreement between ABF and a
customer shall contain terms of use no broader than those set forth
herein and shall contain disclaimers and limitations similar to
those disclaimers and limitations as set forth herein. ABF
acknowledges and agrees that WebMD shall not be responsible for any
representation or warranties made by ABF to its customers regarding
the Tools or Personal Financial Record Application.
2.2. WebMD grants to ABF a world-wide, royalty-free,
non-exclusive, non-transferable license, with no right to
sublicense, during the Term of this Agreement to use the WebMD
Marks solely in connection with the Site and to perform its
obligations hereunder, in accordance with the terms and conditions
of this Agreement. Title to and ownership of the WebMD Marks shall
remain with WebMD. ABF shall use the WebMD Marks in conformance
with any trademark usage policies of which it is notified in
writing. ABF shall submit all proposed uses the WebMD Marks, the
Promotional Material and all other documentation and materials
referencing the Tools to WebMD for prior written approval and shall
not use the WebMD Marks, the
Promotional
Material or the documentation and materials without such approval,
which may be withheld in WebMD’s sole discretion. WebMD
reserves the right to review any approved use of the WebMD Marks,
the Promotional Material and the documentation and materials and to
require changes thereto.
2.3. ABF grants to WebMD a non-exclusive right to
use, reproduce, copy, transmit, distribute, publicly perform and/or
display the ABF Marks and ABF Content in connection with the Tools
and Customized Pages to perform its obligations hereunder in
accordance with the terms of this Agreement. Title to and ownership
of the ABF Marks shall remain with ABF. WebMD shall use the ABF
Marks in conformance with what ABF has approved of in writing.
WebMD shall submit all proposed uses the ABF Marks to ABF for prior
written approval and shall not use the ABF Marks without such
approval, which may be withheld in ABF’s sole discretion. ABF
reserves the right to review any approved use of the ABF Marks and
to require changes thereto
2.4. ABF shall not (and shall not contractually
permit any of its customers to) sell, rent, lease, lend,
sublicense, distribute, or otherwise transfer or provide access to
the Tools, the Personal Financial Record, the Promotional Material
and the Customized Pages (or any part thereof) to any person, firm,
or entity except as expressly authorized herein.
2.5. ABF agrees not to (and will require that its
customers contractually agree not to) modify, adapt, alter or
create derivative works from the Tools, the Personal Financial
Record Application or the Promotional Materials or any subpart
thereof (including proprietary markings), or to merge the Tools,
the Personal Financial Record or any subpart thereof (including
proprietary markings) with other services or software.
2.6. WebMD owns all copyright and other proprietary
rights in the Promotional Materials, the Tools, the Personal
Financial Record Application, and any customization and all other
extensions and Enhancements created pursuant to this Agreement or
otherwise. ABF acknowledges and agrees that this is a license
agreement and not an agreement for sale. As such, Licensor assigns
no copyrights. As between the parties, all rights, title and
interest in and to the Promotional Materials, the Tools, the
Personal Financial Record Application, including all updates,
upgrades, bug fixes, modifications, enhancements and new versions
of the Tools and the Personal Financial Record Application and all
worldwide intellectual property rights that are embodied in,
related to, or represented by the Tools, the Personal Financial
Record Application and the Promotional Materials are, and
at
all times will
be, the sole and exclusive property of WebMD or its licensors, as
the case may be.
2.7. All rights not expressly granted in this
Agreement are reserved to WebMD.
2.8 Integrated Product Offering
. During the Term of this Agreement,
ABF agrees to use reasonable commercial efforts to market the Tools
(including the Personal Financial Record Application) to its
Customers (and potential Customers), with less than 250,000 lives
(collectively, “ ABF Customers ”), as permitted
hereunder in accordance with the marketing and promotional
guidelines provided by WebMD from time to time. ABF will only offer
to ABF Customers the Tools: (i) as an integrated product
solution that integrates the Tools with the member-centric
electronic EOB (e.g., electronic explanation of benefit)
transaction services for the benefit of End Users of ABF Customers
via the Site (hereinafter, the “ Integrated Product
”); or (ii) as agreed to in advance by WebMD in other
cases. ABF shall use reasonable best efforts to increase the
pricing for the Tools at the same percentage that ABF increases the
price for its other services. Notwithstanding the foregoing,
pricing for ABF Services when integrated with the Integrated
Product shall be comparable and consistent to the pricing for such
ABF Services when sold separate from the Integrated
Product.
2.9 The pricing set forth on Schedule A payable
by ABF shall apply to the Tools set forth on such Schedule as part
of the Integrated Product for the ABF Customers. In no event shall
ABF offer the Integrated Product (or any online health or benefit
management service or product comparable to any of the Tools or the
Personal Financial Record Application, whether or not integrated
with an EEOB (collectively, “Online Health Tools”), to
any other third party, including but not limited to, customers or
potential customers with more than 250,000 lives (each a
“Third Party”). In the event ABF so determines to offer
the Integrated Product (or any Online Health Tool) to any Third
Party, ABF shall notify WebMD of the opportunity in advance of such
proposed offering in order to discuss how WebMD wishes to proceed.
This will be handled by WebMD on a case by case basis and WebMD
retains the sole discretion as to whether ABF may offer the
Integrated Product (or such other Online Health Tool) and pricing
for such product to the Third Party and, if so, the pricing and
other terms that ABF may provide to such Third Party. In the event
that ABF desires upgrades, enhancements, modifications or new
features to the Tools or Personal Financial Record (collectively,
“Upgrades”) after the date hereof, the parties will
meet to discuss the terms under which Upgrades may be provided by
WebMD, however, the provision of Upgrades will require mutual
consent of both parties in writing.
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2.10 Personal Financial Record Application
. WebMD shall use good faith efforts
to develop, at its expense, an online Personal Financial Record
application as described herein (the “Personal Financial
Record Application”) within twelve (12) months following
the date of this Agreement. The basic features of the Personal
Health Record Application are as described in the separate document
agreed to by the parties. ABF agrees that the Personal Financial
Record Application may only be offered and provided by ABF as an
integrated part of the ABF Services to Customers or potential
Customers of ABF that exceed 250,000 lives (“ABF Large
Customers) and subject to the terms of this Agreement. ABF shall
keep WebMD apprised of its marketing efforts related to the
Personal Financial Record Application as part of the ABF Services
as provided in this Section 2.10. In the event that in
connection with the sale of the Personal Financial Record
Application by ABF as provided in this Section 2.10, an ABF
Large Customer requests any Online Health Tools, ABF will advise
WebMD and WebMD may determine how or if to proceed in connection
with the sale of Online Health Tools to such customer by WebMD. If
WebMD elects to proceed to negotiate the provision of Online Health
Tools to such customer, WebMD will determine the terms under which
such Online Health Tools will be provided by WebMD, and WebMD shall
contract directly with such customer for the Online Health Tools
and shall retain all fees it receives from such customer and WebMD
shall not be required to pay any amounts to ABF as it relates to
such customer.
2.11 During the term of this Agreement, WebMD will be
the exclusive provider to ABF of the Tools, the Personal Financial
Record Application and any other Online Health Tools Except as
permitted by the terms of Section 2.8 or 2.10, ABF agrees
that, during the term of this Agreement, ABF shall not market or
provide any online health or benefit management products or
services comparable to any of those included in the Tools or the
Personal Financial Record Application to any third party,
regardless of the such customer’s or potential
customer’s number of lives. The obligations applicable to the
Purchaser, ABF and Envoy under this Agreement are in addition to
the terms of the BSA. Notwithstanding anything to the contrary in
this Section 2.11 or this Agreement, nothing in this Agreement
is intended to restrict or limit the offering or sale by WebMD of
any product or service to any third party.
Section 3. FEES AND PAYMENT.
3.1 ABF shall pay to WebMD a monthly fee per
Participating Member for the Tools provided pursuant to
Section 2.8 above based on the aggregate
number of Participating Members (as part of the ABF Services
provided by ABF to ABF Customers and End Users for a subscription,
use or other type of fee) (“ PPPM Fee ”) in
accordance with the Pricing Schedule attached as Schedule A
hereto. ABF shall notify WebMD within ten (10) days of
acquiring a new ABF Customer who will be using the WebMD services,
and shall include in such notification the number of Participating
Members and End Users associated with the Customer. The payments
terms set forth in Schedule A are exclusive of any applicable
taxes. ABF shall be solely responsible for any applicable sales,
use or other like taxes based upon WebMD’s fees for providing
its services hereunder, excluding however taxes based upon
WebMD’s net income.
3.2 ABF shall pay to WebMD a monthly fee per
Eligible Member for the Personal Financial Record Application
provided pursuant to Section 2.10 above based on the aggregate
number of Eligible Members (as part of the ABF Services provided by
ABF to ABF Large Customers and End Users (“ PEPM Fee
”) in accordance with the separate document agreed to by the
parties. ABF shall notify WebMD within ten (10) days of
acquiring a new ABF Large Customer who will be using the Personal
Financial Record Application, and shall include in such
notification the number of Eligible Members and End Users
associated with the ABF Large Customer. The payments terms set
forth in the separate document are exclusive of any applicable
taxes. ABF shall be solely responsible for any applicable sales,
use or other like taxes based upon WebMD’s fees for providing
its services hereunder, excluding however taxes based upon
WebMD’s net income.
3.3 ABF shall pay the Initial One-Time Fee as
outlined on Schedule A for the integration of the Tools into
the ABF Services pursuant to Section 2.8. Subject to the terms
of this Agreement, WebMD shall develop Customized Pages for ABF.
ABF will receive the specific integration services as described in
Schedule C in exchange for the fees set forth in
Schedule A. Within thirty (30) days following the Effective
Date of this Agreement, the parties will finalize Schedule C,
the general form of which is attached hereto as Schedule C. In
the event that ABF desires additional integration or customization
services beyond those specified in Schedule C, the parties
shall negotiate a mutually agreeable work order, provided, however,
the WebMD hourly rate shall be at WebMD’s standard rates for
similarly situated parties. WebMD shall not perform such additional
integration or customization work until the associated work order
is executed by both parties.
3.4 If
the Parties agree to add a New Product or New Service, the fees set
forth in Schedule A may be revised by
3
WebMD. Any fee
revision executed after the date of this contract is subject to
approval and thirty (30) day notice by and to ABF.
3.4 ABF will keep accurate records sufficient to
verify ABF’s compliance with the terms of this Agreement,
including calculation of all payments due to WebMD and will provide
copies of such records to WebMD on a monthly basis; provided,
however, that ABF shall make available to WebMD all supporting
documentation sufficient to calculate such payments within fifteen
(15) business days after receiving written request from WebMD.
During the term of this Agreement and for a period of one year
following termination or expiration of this Agreement, WebMD shall
have the right to audit and review the books and records of ABF in
order to verify ABF’s compliance with the terms of this
Agreement and verify that it has made all payments required to be
made under this Agreement. WebMD will be responsible for the cost
of the audit.
Section 4. TERM; RENEWAL;
TERMINATION.
4.1. This Agreement will commence on the Effective
Date and continue for five Contract Years (the “Initial
Term”), unless terminated by the parties in accordance with
this Section 4 of this Agreement. This Agreement shall
automatically renew for successive twelve (12) month Contract
Years after the fifth anniversary of the Effective Date, unless
either party notifies the other party in writing of its intent to
terminate the Agreement as of the end of the Initial Term, or its
then current term after the Initial Term, at least sixty
(60) days prior to expiration of Initial term or the
then-current term, as applicable, in accordance with the
notification provisions of this Agreement.
4.2 Commencing twelve (12) months after the
date of this Agreement, WebMD may terminate this Agreement
without cause at any time without liability or further financial
obligation upon one hundred eighty (180) days written notice
to ABF, Envoy and Master LLC.
4.3. In the event either party materially breaches
this Agreement and fails to cure such breach within 30 days
following receipt of written notice concerning the breach, the
other party may terminate this Agreement.
4.4. Upon expiration or termination of this Agreement
for any reason, WebMD, with ABF’s reasonable assistance if
necessary, may contact End Users via email or other similar
communication to advise them of their options regarding transfer or
disposition of their information.
4.5. Upon expiration or termination of this
Agreement
for any reason,
all fees and charges set forth in Section 3 will be
immediately due and payable, and ABF shall promptly discontinue all
further use of WebMD Marks and all further use of the
Tools.
4.6 Upon termination of this Agreement for any
reason (except for termination by WebMD due to a breach by ABF,
Master LLC or Envoy), at ABF’s election, for those customers
receiving the Tools or Personal Financial Record Application as of
the effective date of termination as to which ABF has continuing
contractual obligations to deliver the Tools or Personal Financial
Record Application, WebMD shall continue to provide the Tools or
Personal Financial Record Application in accordance with this
Agreement for a period of up to one (1) year from the
effective date of termination (the “Transition
Period” ) in order to facilitate an orderly transition to
another provider. During such Transition Period, ABF shall continue
to pay WebMD for all customers that continue to receive access to
the Tools or Personal Financial Record Application during the
Transition Period at the applicable prices for the Tools or
Personal Financial Record Application at the time of termination.
The terms of this Agreement applicable to such customers shall
remain in full force and effect during such Transition
Period.
Section 5. RESPONSIBILITIES; CHANGE CONTROL
PROCEDURES; DELIVERY AND ACCEPTANCE
5.1 WebMD shall: (a) provide service level
guarantees to ABF in accordance with the Service Level Agreement,
attached hereto as Schedule D; and (b) provide ABF with
maintenance as described on Schedule C attached hereto; and
(c) comply with all the provisions of Section 9, below,
for the protection of End User data.
5.2 ABF shall: (a) provision, secure and
maintain the appropriate hardware and software necessary to
implementation and use and access the Tools;
(b) collaborat
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