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Exhibit
99.1
Section 8.5 of the
Outsourcing Agreement and related definitions
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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. |
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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 Processes; 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. |
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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.
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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 Pa |
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