Law Insider Neoforma Inc Outsourcing Agreement Dated As of October 10 2005 Among Novation LLC Vha Inc University Healths Filed 23-01-2006 Contract

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Exhibit 5

EXECUTION COPY

Confidential materials omitted and filed


separately with the Securities and Exchange
Commission. Asterisks denote such omission.

OUTSOURCING AGREEMENT

dated as of October 10, 2005

among

NOVATION, LLC,

VHA INC.,

UNIVERSITY HEALTHSYSTEM CONSORTIUM,

HEALTHCARE PURCHASING PARTNERS INTERNATIONAL, LLC,

and

GLOBAL HEALTHCARE EXCHANGE, LLC


TABLE OF CONTENTS

Page

1. DEFINITIONS 2

2. SERVICE PROVIDER OBLIGATIONS 9


2.1 Migration 9
2.1.1 Migration Plan 9
2.1.2 Assumptions and Further Development 10
2.1.3 Migration Services 10
2.2 Services 10
2.2.1 Pre-Migration Services 11
2.2.2 Post-Migration Services 11
2.2.3 Most Favored Nations 11
2.3 Service Levels; Root-Cause Analysis 12
2.3.1 Service Levels 12
2.3.2 Root-Cause Analysis 12
2.4 [*****] 13
2.5 SERVICE PROVIDER'S INTERACTION WITH MEMBERS; PRE-EXISTING DATA
AND SERVICE
ARRANGEMENTS
13
2.5.1 Member-Facing Plan 13
2.5.2 MEMBERS USING SERVICE PROVIDER PRIOR TO THE EFFECTIVE
DATE 13
2.5.3 Maintenance of [*****] 14
2.5.4 Participation of Additional and Renewal Members. 14
2.6 Data From Suppliers 15
2.6.1 [*****] 15
2.6.2 Product Data 16
2.6.3 [*****] 16
2.7 Knowledge Sharing 16
2.8 Communications with Novation and Alliances 16
2.8.1 Notice of Materially Adverse Facts 16
2.8.2 Reports. 16
2.8.3 Regular Meetings 17
2.9 Goals and Incentives 17

3. THE GHX EXCHANGE 17


3.1 Maintenance as Leading Provider 17
3.2 User Registration 18
3.2.1 NPS 18
3.2.2 GHX Exchange. 18
3.2.3 Novation Marketplace 19
3.3 Notice of Novation Contracts 19
3.4 Provision of Product Information 20
3.4.1 PROVISION OF NON-NOVATION CONTRACT PRODUCT
INFORMATION 20

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TABLE OF CONTENTS
(continued)
Page

3.4.2
PROVISION OF NOVATION CONTRACT PRODUCT AND [*****] 20
3.5 Removal of Materials and Products from NPS 20
3.5.1 Removal of Materials 20
3.5.2 Removal of Products 20
3.6 Other GPOs 20
3.7 Reasonable Assistance 21

4. NOVATION PROPRIETARY SERVICES AND CHANGES IN SERVICES 21


4.1 Novation Proprietary Services 21
4.2 Change Control for Novation Proprietary Services 21
4.2.1 Change Control Procedure 21
4.2.2 Adjustment in [*****] 22
4.2.3 Emergency Changes 22

5. SERVICE PROVIDER EXCLUSIVITY 22


5.1 Exclusivity 22
5.2 Marketing Other Services To Members 22

6. LICENSES 22
6.1 Marks 22
6.2 Service Provider Materials 23
6.3 Novation Materials 23
6.4 Licenses; Source Code Escrow; Proprietary Rights 23
6.4.1 Access License 23
6.4.2 License to Service Provider 24
6.4.3 Grant of Source Code License. 24
6.4.4 Third Party Technology 26
6.4.5 Source Code Escrow. 26
6.4.6 Proprietary Rights; Restrictions 28

7. FEES AND TAXES 28


7.1 Fees 28
7.2 Taxes 29
7.3 Other Expenses 29
7.4 Payment Terms 29
7.4.1 Invoices 29
7.4.2 Payments 29
7.4.3 Credits 29
7.5 Member-Based Pricing 29
7.5.1 Conversion to Member-Based Pricing 29
7.5.2 [*****] Member-Based Pricing 30

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TABLE OF CONTENTS
(continued)
Page

8. TERM AND TERMINATION 30


8.1 Initial Term 30
8.2 Renewal and Extension of Term 30
8.3 Termination for Cause or Dissolution 30
8.3.1 For Cause 30
8.3.2 Novation Dissolution 31
8.3.3 Termination of Merger Agreement 31
8.4 Termination for Insolvency Events 31
8.4.1 Service Provider Insolvency Event 31
8.4.2 Novation Insolvency Event 32
8.4.3 VHA or UHC Insolvency Event 32
8.5 Termination Upon Service Provider Change of Control 33
8.6 Return of Materials 33
8.7 Survival 34
8.8 Termination Assistance Services 34
8.9 Equitable Remedies 34

9. DATA RIGHTS; INTELLECTUAL PROPERTY 34


9.1 Data Rights 34
9.1.1 Member Data 34
9.1.2 Transaction Data 35
9.1.3 Aggregated GHX Data 35
9.1.4 Aggregated Alliance Member Data 36
9.1.5 Product Data 36
9.2 Analytic Data 36
9.3 No Other Licenses or Use 36
9.4 Ownership by Third Parties 36
9.5 Intellectual Property 37
9.5.1 Deliverables 37
9.5.2 Proprietary Rights; Restrictions 37

10. SAFEGUARDING OF DATA; CONFIDENTIALITY 38


10.1 Confidentiality 38
10.1.1 Confidential Information 38
10.1.2 Confidentiality Obligations 38
10.1.3 Exclusions 38
10.1.4 No License 39
10.1.5 Loss of Confidential Information 39
10.2 Safeguarding of Data 39
10.3 Business Associate Provisions 39

11. REPRESENTATIONS, WARRANTIES AND COVENANTS 40


11.1 Representations by Service Provider 40

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TABLE OF CONTENTS
(continued)
Page

11.1.1 Due Organization 40


11.1.2 Authority; Non-Contravention. 40
11.1.3 Performance 41
11.1.4 Extension of Other Agreements 41
11.1.5 Source Code Escrow 41
11.1.6 Agreements. 41
11.2 Representations by Novation, VHA, UHC and HPPI 42
11.2.1 Due Organization 42
11.2.2 Authority; Non-Contravention. 42
11.3 COMPLIANCE WITH LAWS AND REGULATIONS; OTHER COVENANTS 43
11.3.1 Compliance with Laws 43
11.3.2 HHS and Comptroller General 43
11.3.3 No Exclusion or Debarment 44
11.3.4 NO EXCHANGE OF COMPETITIVELY SENSITIVE INFORMATION 44
11.4 Warranty Disclaimer 44

12. USE OF SUBCONTRACTORS; RIGHTS TO REQUEST REPLACEMENT 45


12.1 Generally 45
12.2 Right to Request Replacement 45
12.3 Continuing Responsibility 45
12.4 Confidential Information 45

13. INSURANCE 45
13.1 Insurance 45
13.2 Proof of Insurance 45

14. INDEMNITY 46
14.1 Service Provider Indemnity 46
14.2 Novation Indemnity 46
14.3 Infringement Claims 47
14.3.1 Indemnity 47
14.3.2 Indemnity Exclusions 47
14.3.3 Injunction or Prohibition 48
14.4 Indemnity Procedures 48
14.5 Exclusive Remedy 48

15. LIMITATION OF LIABILITY 48

16. AUDIT RIGHTS 49


16.1 General 49
16.2 Frequency of Audits 49

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TABLE OF CONTENTS
(continued)
Page

16.3 Auditors 49
16.4 Record Retention 50
16.5 Cooperation 50
16.6 Overcharges and Undercharges 50
16.7 Audit Reports 50

17. DISPUTE RESOLUTION 50

18. GENERAL PROVISIONS 50


18.1 No Waiver 50
18.2 Entire Agreement 50
18.3 Publicity 51
18.4 Assignment; Successors and Assigns 51
18.5 Governing Law 51
18.6 Notices 51
18.7 No Agency 52
18.8 Force Majeure 52
18.8.1 Performance Excused 52
18.8.2 Period of Excused Performance 53
18.8.3 Critical Functions 53
18.9 Severability 53
18.10 Counterparts 53
18.11 Headings 53
18.12 Section 365(n) Matters 53
18.13 Additional Members 54
18.14 Termination of Neoforma Outsourcing Agreement 54

19. [*****] OF [*****] 54


19.1 [*****] and [*****] [*****] 54
19.2 [*****] and [*****] [*****] 54
19.3 [*****] of [*****] 55

-v-
TABLE OF CONTENTS
(continued)
Page

EXHIBIT A: MIGRATION PLAN

EXHIBIT B: SCOPE OF SERVICES

EXHIBIT C: SERVICE LEVELS, METRICS AND PERFORMANCE CREDITS

EXHIBIT D: MEMBER-FACING PLAN

EXHIBIT E: FORM OF MEMBER AGREEMENT

EXHIBIT F: REPORTS AND METRICS

EXHIBIT G: REGISTRATION AND PASSWORD ISSUANCE AND PROTECTION


PROCEDURES
EXHIBIT H: Intentionally Omitted.

EXHIBIT I: NOVATION’S TRADEMARK USAGE GUIDELINES

EXHIBIT J: SERVICE PROVIDER’S TRADEMARK USAGE GUIDELINES

EXHIBIT K: VHA’S, UHC’S AND HPPI’S TRADEMARK USAGE GUIDELINES

EXHIBIT L: Intentionally Omitted

EXHIBIT M: CERTAIN AGREEMENTS

EXHIBIT N: EXTENSION OF CERTAIN AGREEMENTS

EXHIBIT O: SERVICE PROVIDER GUIDING PRINCIPLES

EXHIBIT P: LETTER AGREEMENT

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OUTSOURCING AGREEMENT

This Outsourcing Agreement (“Agreement”) executed as of October 10, 2005 and


effective as of the “Effective Time” as defined below, by and among Global Healthcare
Exchange, LLC, a limited liability company organized under the laws of Delaware with
offices at 11000 Westmoor Circle, Suite 400, Westminster, CO 80021 (“Service Provider”),
Novation, LLC, a Delaware limited liability company with offices at 125 East John Carpenter
Freeway, Irving, Texas 75062 (“Novation”), Healthcare Purchasing Partners International,
LLC, a Delaware limited liability company with offices at 125 East John Carpenter Freeway,
Irving, Texas 75062 (“HPPI”), VHA Inc., a Delaware corporation with offices at 220 East Las
Colinas Boulevard, Irving, Texas 75039-5500 (“VHA”), and University HealthSystem
Consortium, an Illinois corporation with offices at 2001 Spring Road, Suite 700, Oak Brook,
Illinois 60523 (“UHC”). Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in Section 1 below.

RECITALS

WHEREAS, Service Provider is a provider of Internet e-commerce services to the


healthcare industry facilitating the sale, rental, lease and license of new and used
equipment, products, supplies, services, information and other content, by allowing
electronic orders to be placed and received for the foregoing and by providing online
information and analytic capabilities regarding the foregoing;

WHEREAS, VHA and UHC are organizations whose Members are hospitals and
healthcare providers, and which view e-commerce services as an essential part of their
cooperative purchasing programs on behalf of their Members and desire to cause such
services to be available to their Members through this Agreement;

WHEREAS, VHA and UHC together own all the ownership interests in Novation and
HPPI;

WHEREAS, Novation is a contracting agent that also develops and delivers supply
chain management agreements, programs and services on behalf of VHA and UHC and
their Members;

WHEREAS, HPPI is a GPO that serves healthcare organizations that are not
members of VHA and UHC and other GPOs and which develops and delivers supply-chain
management programs and services to such healthcare organizations;

WHEREAS, the Parties desire to establish a relationship to enable the Parties to


achieve increased efficiency and cost savings through Internet-based technology and
pursuant to which Service Provider will provide the GHX Exchange, the Novation Proprietary
Services and other Services for the benefit of the Members of VHA and UHC and the
associated healthcare organizations of HPPI;

WHEREAS, Novation, VHA, UHC and HPPI are parties to the Neoforma Outsourcing
Agreement and desire to transition the services provided thereunder to Service Provider in
accordance with this Agreement; and
WHEREAS, certain of the Parties have entered into the Merger Agreement pursuant
to which Neoforma will become a wholly-owned subsidiary of Service Provider.

NOW, THEREFORE, for good and valuable consideration, the Parties agree as
follows:

1. DEFINITIONS

As used in this Agreement, the following terms shall have the respective meanings
set forth below. Other capitalized terms shall have the meanings set forth elsewhere in this
Agreement.

“Activation Event” has the meaning set forth in Section 6.4.3(d).

“Affiliate(s)” means, with respect to a specified Person, any other Person that,
directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is
under common Control with such specified Person. Service Provider, on the one hand, and
Novation, VHA, HPPI and/or UHC, on the other hand, shall not be Affiliates of each other.

“Aggregated Alliance Member Data” means a compilation prepared by or on


behalf of any Alliance consisting of Member Data with respect to any two or more Members
of the Alliance in question.

“Aggregated GHX Data” means a compilation prepared by Service Provider of


Transaction Data of Members and of non-Members (i.e., other customers of Service
Provider) concerning which Service Provider has taken commercially reasonable
precautions to ensure that no individual, particular transaction or entity (including, without
limitation, a Member or a GPO) can be identified.

“Agreement” has the meaning set forth in the Preamble.

“Alliance” means UHC, VHA or HPPI, as applicable.

“AllSource® Catalog” means the Product Data of multiple Suppliers, organized


according to the Classification Scheme.

“Analytic Data” means all or any portion of the information and data created or
generated from the analysis of Member Data and/or [*****] in accordance with the terms
hereof.

“Analytics” means the software or other functionality that enables a User to


review, analyze and/or report on Member Data and [*****].

“Change” has the meaning set forth in Section 4.2.1.

“Change Request” has the meaning set forth in Section 4.2.1.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-2-
“Charges” has the meaning set forth in Section 7.4.1.

“Classification Scheme” means Service Provider’s proprietary classification


scheme for Product Data made available through the GHX Exchange.

“Client Software” means the software licensed by Service Provider to the


Participating Members, including any manuals and other available documentation therefor,
and including any Updates thereto, but not including any Third Party Technology.

“Competitor” means any Person that, at the time of determination, would


reasonably be considered to be a competitor of Novation, VHA, UHC or HPPI.

“Confidential Information” has the meaning set forth in Section 10.1.1.

“Content” means any text, graphics, logos, button icons, images, audio clips,
HTML code, java programs and other material used or displayed as part of or in connection
with the GHX Exchange, the Novation Marketplace or NPS, other than Product Data.

“[*****]” or “[*****]” means [*****] on Member use of the [*****] and [*****], as
more particularly described in Exhibit B.

“Control” means the possession, directly or indirectly, of the power to direct or


cause the direction of the management and operating policies of the entity in respect of
which the determination is being made, through the ownership of voting securities,
contract, voting trust or otherwise.

“Current Version” has the meaning set forth in Section 6.4.5(a).

“Deliverables” has the meaning set forth in Section 4.1.

“Effective Date” means the date on which the Effective Time occurs.

“Effective Time” has the meaning set forth in the Merger Agreement.

“Escrow Agent” has the meaning set forth in Section 6.4.5(a).

“GHX Exchange” means Service Provider’s e-commerce system and marketplace


for enabling e-commerce transactions and transmitting procurement communications
between buyers and Suppliers in the health care industry, all as further described in Exhibit
B (“Scope of Services”). GHX Exchange includes both GHX Exchange Standard and GHX
Exchange Plus.

“GHX Exchange Software” means the software necessary to provide the GHX
Exchange, including any manuals and other available documentation therefor, and
including any Updates thereto, but not including any Third Party Technology.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-3-
“GHX Exchange Plus” or “GHXe Plus” means the services designated as such in
the Scope of Services, which shall be provided only if and to the extent that any
Participating Member elects to receive such services for an additional fee.

“GHX Exchange Standard” or “GHXe Standard” means all of the GHX Exchange
other than GHX Exchange Plus.

“GHX Formation Agreement” means that certain Third Amended and Restated
Formation Agreement among Service Provider and its members, dated as of December 30,
2002, as the same may be amended, modified or supplemented from time to time.

“GHX LLC Agreement” means that certain Fifth Amended and Restated Limited
Liability Company Agreement among Service Provider and its members, dated as of
December 30, 2002, as the same may be amended, modified or supplemented from time to
time.

“GPO(s)” means any entity in the United States that meets the definition of a
“Group Purchasing Organization” as set forth in 42 CFR Section 1001.952(j), and any entity
outside the United States performing a similar function.

“HPPI” has the meaning set forth in the Preamble.

“HPPI Member(s)” means, at any date, those organizations acting as purchasers,


renters or lessees in their respective markets that are associates of HPPI and to which HPPI
provides procurement-related services, cost management programs and other services.

“Infringement Claim” has the meaning set forth in Section 14.3.1.

“Initial Term” has the meaning set forth in Section 8.1.

“Insolvency Event” has the meaning set forth in Section 8.4.

“Insolvent V/U/N Party” has the meaning set forth in Section 8.4.

“Intellectual Property” has the meaning set forth in Section 9.5.2.

“Intellectual Property Rights” collectively means any and all rights in Intellectual
Property, including without limitation, copyrights, patents, patent registration rights,
business processes, data rights, mask works, Marks, trade secrets, and know-how rights
arising or enforceable under any U.S. law, foreign law, or international treaty regime.

“Internet” means the public, global network of computer networks and individual
computers constantly connected using standardized communications protocols, specifically
TCP/IP or any successor protocol thereof.

“Items” has the meaning set forth in Section 14.3.1.

“Losses” has the meaning set forth in Section 14.1.

-4-
“Marks” means all trademarks, trade names, service marks, service names and
logos, worldwide.

“Member(s)” means, at any date, those organizations that are (i) Patrons of VHA
as VHA designates from time to time, (ii) members of UHC as UHC designates from time to
time and/or (iii) HPPI Members, and in each case, that are listed in an electronic file
supplied to Service Provider and updated periodically by Novation.

“Member-Based Pricing” has the meaning set forth in Section 7.5.1.

“[*****]” means those [*****] contracts between any one or more [*****] and any
[*****], for the benefit of such [*****].

“[*****] Portfolio” means a catalog of all [*****] for which one or more [*****] has
contracted for the benefit of such [*****].

“[*****] Product” means any Product that is part of the [*****] Portfolio.

“Member Data” has the meaning set forth in Section 9.1.1.

“Member-Facing Plan” has the meaning set forth in Section 2.5.1.

“Merger Agreement” means that certain Agreement and Plan of Merger by and
among Service Provider, Neoforma, and Leapfrog Merger Corporation, a Delaware
corporation, dated as of the date hereof.

“Migrated” means, with respect to a particular Participating Member, that [*****] of


the activities set forth on the [*****] have been successfully completed with respect to that
Member.

“Migration Deadline” has the meaning set forth in Section 2.1.3.

“Migration Plan” has the meaning set forth in Section 2.1.1.

“[*****]” means the [*****] [*****] (and the [*****] related thereto) that includes
[*****] information of [*****] [*****] [*****] according to a [*****] [*****] and [*****]
information that reflects the [*****], the [*****] and the [*****]. The [*****] included in
[*****] shall include [*****] [*****] thereto that are included in the [*****] to be [*****] in
the [*****] (referred to as [*****]).

“[*****] Data” means any information [*****] by [*****], any [*****] or any [*****]
to [*****] for [*****] in [*****], including without limitation information that is necessary to
[*****] [*****] (including [*****] [*****]), [*****], [*****], [*****] and [*****] information
that [*****], any [*****] or any [*****] provides to [*****] for [*****] on

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-5-
[*****], including, without limitation, [*****], [*****], [*****], [*****], [*****], [*****],
[*****], [*****], [*****], [*****] and other [*****].

“[*****] Period” means the period of time during which [*****] provides the
[*****].

“[*****] Services” means the services necessary to maintain and operate [*****]
during the [*****], including access to [*****] by [*****], [*****] and each [*****].

“Neoforma” means Neoforma, Inc., a Delaware corporation.

“Neoforma Outsourcing Agreement” means that certain Fourth Amended and


Restated Outsourcing and Operating Agreement by and among Neoforma, Novation, VHA,
UHC and HPPI dated as of August 13, 2003.

“New Participating Members” has the meaning set forth in Section 2.5.4(a).

“Non-Novation Contract Product” means any Product that is not part of the
[*****], including, without limitation, a [*****] or a [*****].

“Non-Renewal Notice” has the meaning set forth in Section 8.2.

“Novation” has the meaning set forth in the Preamble.

“Novation Contract” means all product or service contracts that Novation has
entered into for the benefit of the Members.

“Novation Contract Product(s)” means any Product that is covered by a


Novation Contract.

“Novation Dissolution” has the meaning set forth in Section 8.3.2.

“Novation Marketplace” means the services being provided by Neoforma


pursuant to the Neoforma Outsourcing Agreement as of the Effective Date, including the e-
commerce marketplace accessible only to Members of VHA, UHC or HPPI, as updated by
the release to be issued in the fourth quarter of 2005 (referred to as Avalon), but excluding
the Novation Proprietary Services.

“Novation Materials” means Content and [*****] Data provided by Novation or by


Suppliers to Service Provider solely for use in connection with NPS.

“Novation Operating Agreement” has the meaning set forth in Section 8.3.2.

“Novation Proprietary Services” or “NPS” means the [*****], [*****] and any
other services [*****] developed pursuant to a SOW for the exclusive use of Novation and
hosted or otherwise provided by Service Provider.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-6-
“Novation Suppliers”means each Supplier with which Novation has an
agreement with respect to [*****] to be offered to Members.

“Participating Members” means any Member that has signed an agreement with
Service Provider (or with Neoforma if signed prior to the Effective Date and still in effect)
for use of any of the Services.

“Party” means each of Service Provider, Novation, HPPI, VHA and UHC and any
other Person that becomes a signatory to this Agreement, unless the context requires
otherwise.

“Patron(s)” means a Person that is entitled to receive a patronage refund from


VHA.

“Performance Credits” means the liquidated damages amounts payable by


Service Provider to Novation for a failure to meet the Service Levels.

“Person” means a natural person, corporation, partnership (limited or general),


limited liability company, business trust or other entity.

“Post-Migration” has the meaning set forth in Section 2.2.2.

“Pre-Existing GHX Agreements” has the meaning set forth in Section 2.2.2(c).

“Pre-Existing Member Agreements” has the meaning set forth in Section 2.5.3.

“Pre-Migration” has the meaning set forth in Section 2.2.1.

“Product(s)” means equipment, products, supplies, services, information and other


content provided by Suppliers and available for purchase, rental or lease by Members
whether or not through the GHX Exchange or the Novation Marketplace.

“Product Council” has the meaning set forth in the GHX LLC Agreement.

“Product Data” means product information that a Supplier provides to Service


Provider for display on the GHX Exchange, to communicate to purchasers including, without
limitation, product descriptions, product specifications, Marks, catalog prices, catalogs,
directions for use, text, pictures, sound, video and other data. For avoidance of confusion,
price data for a specific transaction is Transaction Data, not Product Data.

“Renewal Proposal” has the meaning set forth in Section 8.2.

“Renewal Term” has the meaning set forth in Section 8.2.

“Reports” has the meaning set forth in Section 2.8.2(b).

“Response” has the meaning set forth in Section 4.2.1.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-7-
“Retained Contract(s)” means those product or service contracts of VHA or UHC
that have not been transferred to Novation and which the Members may have access to
because they are Members in VHA or UHC.

“Retained Contract Portfolio” means a catalog of all Products for which VHA or
UHC have contracted for the benefit of their respective Members that have not been
transferred to Novation and which the Members may have access to because they are
Members in VHA or UHC.

“Retained Contract Product(s)” means any Product that is part of the Retained
Contract Portfolio.

“Service(s)” means the services to be provided hereunder by Service Provider, and


includes, without limitation, collectively: (i) the Novation Marketplace (with respect to Pre-
Migration Members), (ii) GHX Exchange Standard (with respect to Post-Migration Members),
(iii) all other services to be provided pursuant to this Agreement, (iv) the [*****] and the
[*****], (v) the other Novation Proprietary Services to the extent that such services are the
subject of one or more signed Statements of Work and (vi) GHX Exchange Plus (to the
extent that a Member has elected to receive such services).

“Service Fees” has the meaning set forth in Section 7.1.

“Service Level(s)” means the objective criteria establishing the level of Service
Provider’s required provision of the Services under this Agreement, as further described in
Exhibit C.

“Service Provider” has the meaning set forth in the Preamble.

“Service Provider Change of Control” means a merger or consolidation (other


than with a subsidiary of Service Provider) in which Service Provider is not the surviving
entity, or the sale of substantially all the assets of Service Provider, or a sale or other
transaction or series of related transactions in which more than [*****] of the outstanding
common stock or general voting securities (other than the sale of securities in any public
offering) of Service Provider (or the common stock or general voting securities of the new
parent entity of Service Provider) immediately after such sale or other transaction or series
of related transactions is not owned by the persons or entities who, immediately prior to
such sale or other transaction or series of related transactions, owned one-hundred percent
(100%) of the common stock or general voting securities of Service Provider.

“Service Provider Materials” means Content provided by Service Provider and


displayed on and available to Users of NPS, the Novation Marketplace, GHX Exchange or
NPS but shall not include the Novation Materials.

“Solvent V/U/N Parties” has the meaning set forth in Section 8.4.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-8-
“Source Code” has the meaning set forth in Section 6.4.5(a).

“SOWs” has the meaning set forth in Section 4.1.

“Supplier(s)” means manufacturers, distributors and other suppliers of medical,


surgical, pharmaceutical and other products, equipment and services used by healthcare
providers and/or related professionals.

“[*****]” or “[*****]” means all or any portion of data or information regarding the
[*****], [*****] or [*****] of Products by [*****] that is provided to [*****] by [*****], other
than [*****]

“Term” has the meaning set forth in Section 8.2.

“Termination Assistance Period” means the [*****] period immediately


following the expiration or termination of this Agreement.

“Termination Assistance Services” means termination assistance to allow the


Services to continue in accordance with the terms and conditions of this Agreement and
without interruption or adverse effect and to facilitate the orderly transition and migration
of all Services then being performed by Service Provider, including any transition and
migration from Service Provider 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).

“Third Party Technology” shall mean software code and other technology licensed
by Service Provider for use in the GHX Exchange Software and/or the Client Software,
including Updates to such technology.

“Transaction Data” means any information communicated by Service Provider to


a Participating Member, by a Participating Member to Service Provider or between a
Supplier and a Participating Member through GHX Exchange Standard (for Post-Migration
Members) or through the Novation Marketplace (for Pre-Migration Members) that relates to
product purchase, sale, availability, price, terms of payment or order status, including
summaries of such information.

“UHC” has the meaning set forth in the Preamble.

“Update” means an update to the GHX Exchange Software or the Client Software,
as applicable, licensed by Novation, UHC, VHA and HPPI hereunder, but not including any
updates to the Third Party Technology.

“User(s)” means the individual authorized representatives of Participating


Members who use the GHX Exchange, the Novation Marketplace or the Novation Proprietary
Services, the individual employees of UHC, VHA, Novation or HPPI who access the GHX
Exchange, the Novation Marketplace or the Novation Proprietary Services and the individual
employees of

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Suppliers that access the GHX Exchange, the Novation Marketplace or the Novation
Proprietary Services.

“VHA” has the meaning set forth in the Preamble.

“V/U/N” means VHA, UHC and Novation.

2. SERVICE PROVIDER OBLIGATIONS

2.1 Migration.

2.1.1 Migration Plan. Service Provider shall transition Participating


Members from the [*****] to the [*****] in accordance with the
Migration Plan attached hereto as Exhibit A (“Migration Plan”).
Service Provider shall use [*****] efforts to provide a [*****] and
[*****] transition, with [*****] [*****] of [*****] during the transition
from the [*****], except as otherwise permitted under the Migration
Plan. The Migration Plan shall not be amended without the consent of
[*****], such consent not to be unreasonably withheld.

2.1.2 Assumptions and Further Development. The Migration Plan is based


upon Service Provider’s use of [*****]’s [*****] as part of the [*****]
in lieu of its [*****]. In the event Service Provider elects to retain its
[*****], the Migration Plan may need to be [*****]. Service Provider
shall notify [*****] by [*****] as to which [*****] shall be used as
part of the [*****]. In developing the final Migration Plan, Service
Provider shall provide each of [*****] and the [*****] with the
opportunity to confirm that Exhibit B (“Scope of Services”) is
complete and correct and will work with [*****] and the [*****] to
add any items that may have been unintentionally overlooked. The
Parties will negotiate in good faith the [*****] of adding any such
unintentionally-omitted items to Exhibit B.

2.1.3 Migration Services. Service Provider shall ensure that it has [*****]
resources and that it obtains [*****] cooperation from third parties to
develop and successfully implement the Migration Plan in accordance
with its terms. The Parties shall cooperate to encourage Participating
Members to migrate to the [*****]. Service Provider may terminate
the services provided under the [*****] for any Participating Member
that has not Migrated to the [*****] on or before [*****] after the
Effective Date, provided that Service Provider has performed all of its
obligations relating to the Migration Plan hereunder during such
[*****] period (the “Migration Deadline”).

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-10-
2.2 Services. Subject to the terms of this Agreement, Service Provider shall
perform all Services itself or through its wholly-owned subsidiaries (or
through Neoforma as a subcontractor of Service Provider), unless and until
otherwise agreed in writing by Novation and each of the Alliances, which
agreement shall not be unreasonably withheld or delayed. Service Provider
may liquidate or dissolve Neoforma so that all of its assets are distributed to
Service Provider or merge or consolidate Neoforma into or with Service
Provider, or transfer all or substantially all of its assets to Service Provider or
a wholly-owned subsidiary of Service Provider, if despite such transaction,
Service Provider is able to maintain in full force and effect the Pre-Existing
Member Agreements pursuant to Section 2.5.3 unless and to the extent that
they have been replaced by an agreement with Service Provider pursuant to
Section 2.5.4. Throughout the Migration Period, all Participating Members will
continue to receive Services including at least all the functionality of the
Novation Marketplace.

2.2.1 Pre-Migration Services. With respect to those Participating Members


that have not been Migrated pursuant to the Migration Plan (“Pre-
Migration”), Service Provider shall provide to such Participating
Members: (a) [*****] of the Novation Marketplace, (b) all other
functions of the Novation Marketplace, using either the [*****] or the
[*****] in accordance with the Migration Plan, and (c) the Novation
Proprietary Services.

2.2.2 Post-Migration Services. With respect to those Participating Members


that have been Migrated pursuant to the Migration Plan (“Post-
Migration”), Service Provider shall provide the GHX Exchange,
[*****] and the [*****] in accordance with this Agreement. Service
Provider shall also provide any additional Services (including NPS
Services) pursuant to the Statements(s) of Work then in effect, if any,
and any GHX Exchange Plus services that the Participating Member
has then elected to receive, it being understood that GHX Exchange
Plus services may be subject to a competitive bid process before
being offered to Members with respect to one or more of the
Alliances. Service Provider and Novation acknowledge and agree that
the GHX Exchange will evolve and be modified or be enhanced over
time to keep pace with technological advancements and
improvements in e-commerce, in accordance with the
recommendations of the Product Council. Each of Novation, VHA,
UHC and HPPI may also independently elect in its sole discretion, to
receive any or all of the GHX Exchange Plus services itself or on
behalf of its Participating Members.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-11-
2.2.3 Most Favored Nations.

(a) To the extent the Parties have then implemented Member-


Based Pricing, Service Provider’s pricing to Members during
such period shall meet the following requirements:

(i) Pricing for the annual use of any one or more of the
GHX Exchange and GHX Exchange Plus services
offered to Members through this Agreement shall be at
least as favorable as the best subscription fee pricing
offered by Service Provider to any other customer for
the same or functionally equivalent services, except
pursuant to written agreements executed by Service
Provider prior to the Effective Date other than those
identified on Exhibit M; and

(ii) Service Provider’s integration services and


implementation services pricing offered to Members
through this Agreement shall be at least as favorable
as the best integration fee pricing and implementation
fee pricing (including hourly rates therefore) offered by
Service Provider (other than fees payable to third
parties that are contracted to provide the services on
behalf of Service Provider) to any other customer for
the same or functionally equivalent services.

(b) Service Provider further covenants that the pricing and other
terms and conditions offered by Service Provider to Novation,
the Alliances and Members under this Agreement for the same
or functionally equivalent services shall be as good or better
than the terms and conditions offered by Service Provider to
any other customer in all material respects, other than
pursuant to those agreements described on Exhibit M.

(c) Notwithstanding the foregoing provisions of this Section 2.2.3,


Service Provider may agree to provide to third parties pricing
or other terms and conditions for the same or functionally
equivalent services that are materially more favorable than
those it provides to Novation, the Alliance and the Members
hereunder, provided that promptly after entering into any such
agreement, Service Provider shall promptly give notice to
Novation and the Alliances hereunder and offer to amend this
Agreement (and all applicable agreements with Participating
Members) to provide pricing, terms and conditions to
Novation, the Alliances and the Participating Members that are
as good or better than those offered by Service Provider to
any other customer in all material respects.

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2.3 Service Levels; Root-Cause Analysis.

2.3.1 Service Levels. The Services shall be provided in a manner that


satisfies the performance standards and service levels set forth on
Exhibit C. Service Provider shall maintain such professional and
technical personnel and other resources (including, without limitation,
hardware, software, facilities, equipment and other assets) as shall
be required to provide the Services in accordance with the Service
Levels and to satisfy its obligations hereunder throughout the Term.
Novation’s and the Alliances’ sole and exclusive remedies for Service
Provider’s failure to meet the Services Levels are set forth in Exhibit
C. Except as provided in Exhibit C, Service Provider’s failure to meet
the Service Levels shall not be deemed a breach of this Agreement.
The Parties agree that the damages provided in Exhibit C are a
reasonable estimate of the damages that would be suffered by
Novation and the Alliances as a consequence of the failures
described in Exhibit C and do not constitute a penalty (the Parties
hereby acknowledging the inconvenience and difficulty of otherwise
obtaining an adequate remedy).

2.3.2 Root-Cause Analysis. Upon receipt of a notice from Novation or any


of the Alliances of Service Provider’s failure to provide the Services in
accordance with this Agreement or upon Service Provider’s
knowledge of a failure to provide the Services in accordance with this
Agreement, Service Provider shall, as soon as reasonably practicable,
(i) perform a root-cause analysis to identify the cause of such failure
and (ii) provide Novation and each of the Alliances with a report
detailing the cause of, and procedure for correcting, such failure. If
the root cause of such failure is due to the fault of Service Provider
(whether determined pursuant to the foregoing or pursuant to Section
17), Service Provider will implement such procedure and provide
Novation and the Alliances with reasonable assurance that such
failure will not recur; provided that Novation and each of the
Alliances shall retain any and all applicable rights and remedies
hereunder with respect to such failure. If Service Provider concludes
that the root cause of such failure is due to the fault of any Person
other than Service Provider, Service Provider shall promptly give
Novation and each of the Alliances notice of, and information
supporting, such conclusion, subject to Novation’s and the Alliances’
right to disagree with Service Provider’s conclusion and to have the
root cause determined in accordance with Section 17. The Parties
shall submit to the process set forth in Section 17 any Disputed
Matter regarding the root cause of any such failure to provide the
Services in accordance with the applicable Service Levels.

-13-
2.4 [*****]. Service Provider shall, on a regular basis as agreed to by Service
Provider and [*****] in connection with the Service Levels, [*****] onto
[*****] as provided by [*****], including, without limitation, [*****] relating
to new [*****].

2.5 Service Provider’s Interaction with Members; Pre-Existing Data and Service
Arrangements.

2.5.1 Member-Facing Plan. Service Provider will provide representatives to


call upon Members that are not already receiving Services on a
periodic basis and using appropriate methods of communications as
mutually agreed to in a plan approved in writing by Service Provider,
Novation and each of the Alliances (the “Member-Facing Plan”).
The initial Member-Facing Plan is attached hereto as Exhibit D.
Except (a) as authorized by the Member-Facing Plan, (b) to respond to
specific Member inquiries (including Requests for Proposals) or (c) as
otherwise required to provide the Services hereunder, Service
Provider shall not, directly or through any of its Affiliates or another
Person, contact or communicate with any Member without the prior
written consent of the Alliance(s) to which such Member belongs.

2.5.2 Members Using Service Provider prior to the Effective Date. Service
Provider shall assure that any Participating Member that is currently
receiving services from Service Provider, is listed in the Migration
Plan, and desires to avail itself of the benefits of this Agreement
may, at its option and without liability, supersede the pricing terms
and any other terms that conflict with the terms of this Agreement
under its existing contract(s) or other arrangement(s) with Service
Provider for the purpose of participating in the GHX Exchange and the
Novation Proprietary Services under this Agreement. Such Member
shall be solely responsible for any and all charges due with respect to
any GHX Exchange Plus services that it may elect to receive.

2.5.3 Maintenance of [*****]. Service Provider shall use [*****] efforts to


cause [*****] to maintain in full force and effect all agreements
between [*****] and [*****] existing as of the [*****] (“[*****]”)
(except in response to a material breach of a [*****] by a [*****]
after notice to the applicable [*****] and an opportunity to assist in
addressing the breach). Prior to expiration of any [*****], Service
Provider shall use (or shall cause [*****] to use) [*****] efforts to
enter into new agreements in accordance with Section [*****] or to
renew the [*****].

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-14-
2.5.4 Participation of Additional and Renewal Members.

(a) Service Provider, Novation, UHC, VHA and HPPI


shall be jointly responsible for encouraging additional Members to execute agreements to
participate in the GHX Exchange and Novation Proprietary Services. Within ninety (90) days
after the Effective Date and, thereafter once each year within ninety (90) days after the
anniversary of the Effective Date, the Parties shall meet and use good faith and reasonable
efforts to determine and agree upon their respective responsibilities in connection with
obtaining agreements between additional Members and Service Provider for use of the GHX
Exchange and Novation Proprietary Services (“New Participating Members”).
(b) Service Provider shall present to each Member that is
considering participation in the GHX Exchange and Novation
Proprietary Services a user agreement substantially in the
form of Exhibit E (“Form of Member Agreement”). Service
Provider shall be free to negotiate such user agreements with
prospective Members in its sole discretion; provided, however,
that in no event shall Service Provider have the right to
[*****] or [*****] the provisions of the Member Agreement
relating to any [*****]’s [*****] to the [*****] to [*****] and
the applicable [*****] by Service Provider of [*****] or [*****]
without providing at least [*****] prior notice to [*****] and
the applicable [*****] of any [*****] request for such [*****]
prior to executing a Member Agreement with the applicable
[*****] that includes such [*****]. Service Provider shall
promptly provide to each of Novation and the appropriate
Alliance(s) copies of all agreements with Participating
Members.

(c) The Parties shall in good faith review and consider proposed
changes to the Form of Member Agreement based on
experiences related to negotiation of agreements with
Members. Novation and the Alliances will not unreasonably
withhold or delay their consent to changes in the Form of
Member Agreement.

(d) Unless and until the Parties have fully implemented Member-
Based Pricing, in connection with all agreements with
Members, Service Provider shall include in the Form of
Member Agreement the right to assign the user or member
agreements for participation in the GHX Exchange and the
Novation Proprietary Services to the Alliance to which such
Member belongs (or a designee) in the event that this
Agreement terminates or expires pursuant to Section 8
(“Term and Termination”) herein: (a) in all new
agreements by

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-15-
including appropriate assignment language in such
agreements, and (b) in all other agreements, by using
commercially reasonable efforts to obtain the applicable
Member’s agreement to appropriate assignment language at
the time of any amendment to or renewal of such agreement.
In the context of new agreements and Service Provider
renewals or amendments as contemplated above, if a
Member refuses to agree to the proposed assignment
language or proposes more limited assignment language,
Service Provider shall provide at least fourteen (14) days prior
notice to Novation and the applicable Alliance of any Member
request for such modification prior to executing a Member
Agreement with the applicable Member that includes such
modification. Unless and until the Parties have fully
implemented Member-Based Pricing and to the extent
permitted by the applicable user or member agreements,
Service Provider shall, upon written direction of the Alliance(s)
to which such Member belongs, assign such user or member
agreements to the Alliance to which each Participating
Member belongs (or its designee) upon termination or
expiration of this Agreement in accordance with Section 8.

2.6 Data From Suppliers.

2.6.1 [*****]. Novation shall, in its discretion, enter into agreements with
Suppliers for the receipt of [*****]. Service Provider shall work in
good faith to obtain the [*****] from such Suppliers and utilize it to
perform the Services in accordance with Exhibit B.

2.6.2 Product Data. In its negotiations with Suppliers, [*****] shall use
[*****] efforts (without any obligation to bear any expense or pay any
amount) to cause the Suppliers to provide [*****] regarding [*****] of
their [*****] to [*****] for use in the [*****]. [*****] shall, in its
discretion, obtain [*****] with Suppliers for information to be included
in [*****]. Absent a separate agreement with [*****], [*****] shall not
be entitled to [*****] [*****] in [*****].

2.6.3 [*****]. Absent a separate agreement with [*****], Service Provider


shall not use [*****] except as necessary to provide [*****].

2.7 Knowledge Sharing. On a mutually agreed schedule, Service Provider,


Novation, VHA and UHC will provide information to each other to understand
how Service Provider provides the Services and how Novation, VHA and UHC
(or any of their designees) use the Services so that each may better fulfill its
obligations under this Agreement.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-16-
2.8 Communications with Novation and Alliances.

2.8.1 Notice of Materially Adverse Facts. Subject to its obligations under


Section 10, Service Provider will provide written notice to each of
Novation, VHA, UHC and HPPI reasonably promptly after becoming
aware of any fact relating to this Agreement or the Services that
would reasonably be likely to materially adversely affect any of the
Services, Service Provider, the Members, VHA, UHC or HPPI including,
without limitation, the institution of litigation against Service
Provider.

2.8.2 Reports.

(a) In addition to any other reports required by this Agreement,


Service Provider will simultaneously provide each of
Novation, VHA, UHC and HPPI with its standard real-time, on-
line reports of its Participating Members’ usage statistics and
reports on other reasonable matters. In addition, with respect
to Pre-Migration Members, Service Provider shall provide the
reports and metrics that Novation previously received from
Neoforma with respect to the Novation Marketplace, samples
of which are attached in Exhibit F.

(b) With respect to GHX Exchange Standard services provided to


Post-Migration Members, Service Provider shall provide the
same reports and metrics to Novation and the Alliances as it
provides to its other customers, a sample of which is attached
in Exhibit F. (Collectively, all reports and metrics provided
pursuant to this Agreement are “Reports”).

(c) Service Provider shall provide the Reports at least as


frequently as Service Provider generally provides its Reports
to its other customers, provided, however, that until all
activities described on the Migration Plan have been
completed, such reports shall be provided no less frequently
than monthly. Such reports shall be made available, at no
additional charge, in the form of Excel™ files transferred via
electronic transmission to Novation, VHA, UHC or HPPI, such
other files via the Internet, or in such other format as the
Parties agree. The Parties will mutually agree on any changes
to the scope, format and substance of the reporting system
that Service Provider will use from time to time to
communicate with Novation, VHA, UHC and HPPI.

2.8.3 Regular Meetings. Service Provider, Novation, VHA, UHC and HPPI will
conduct regular business reviews on a quarterly basis, or as
otherwise agreed by the Parties, to discuss the strategic direction of
the Novation Marketplace, the GHX Exchange, the Novation
Proprietary Services and, as applicable, the following items: the
Member-Facing Plan, compliance

-17-
with Service Levels, annual volume and connection targets, goals
surrounding New Participating Members, matters regarding Suppliers,
and any other matter requested by Novation or one of the Alliances.
As part of the regular business reviews, Service Provider and each of
Novation and the Alliances will review the Service Levels and discuss
in good faith any necessary revisions of the Service Levels, the GHX
Exchange, the Novation Proprietary Services, the Novation
Marketplace, Service Provider’s current products and services,
implementation and enhanced connections and planned new products
and services or Service Provider’s provision of the Services
hereunder. No changes will be made to the Service Levels unless the
parties mutually agree to the changes and execute a written
amendment to this Agreement.

2.9 Goals and Incentives. The Parties shall meet annually to establish goals with
respect to the Services to help assure success, including use of the Services
by Members. Each of the Parties shall consider achievement of such goals in
determining incentive-based compensation for its management employees.

3. THE GHX EXCHANGE

3.1 Maintenance as Leading Provider. Service Provider shall use commercially


reasonable efforts to maintain the GHX Exchange as a leading provider of e-
commerce services to the healthcare industry.

3.2 User Registration.

3.2.1 NPS

(a) Members. Each User of a Participating Member will be


required to register as a representative of such Member with
UHC, VHA or HPPI, as applicable, prior to using NPS. UHC, VHA
or HPPI, as applicable, will request such information as each
deems necessary to verify that such User is an authorized
representative of such Member. Each of UHC, VHA or HPPI, as
applicable, shall have the right to determine whether a User
has authority to access NPS.

(b) Employees of Alliances and Suppliers. Each employee-User of


any of UHC, VHA, Novation or Suppliers will be required to
register as a representative of UHC, VHA, Novation or a
Supplier, as applicable, prior to using NPS. UHC, VHA, HPPI, or
a Supplier, as applicable, shall have the right to determine
whether a User has authority to access NPS.

(c) General Registration Procedures. When each User logs on to


NPS, Service Provider, with Novation’s assistance, shall
register Participating Members and their Users on NPS. Service
Provider will require Users to create and use passwords as a
necessary condition to accessing NPS. Service Provider will
verify such

-18-
information against the on-line database information then
most-recently made available by Novation and ensure that
such registration is authorized in accordance with registration
and password issuance and protection procedures acceptable
to Service Provider and in accordance with Exhibit G
(“Registration and Password Issuance and Protection
Procedures”). Service Provider shall be responsible for
keeping the NPS registry current with the most-recent data
made available by Novation and for not allowing access to
NPS by unauthorized Users. Participating Members shall only
be allowed to view data related to their respective Member
organizations. Service Provider will allow an employee-User
of Novation or any of the Alliances to have access to
information regarding Members of one or more of VHA, UHC,
HPPI only to the extent permitted by an information feed
provided from time to time by Novation.

3.2.2 GHX Exchange.

(a) Identification. For GHX Exchange Standard, Service Provider


shall issue to Novation, each Alliance and each Participating
Member a confidential user name(s) and password(s) (each,
an “Identification”) for Novation, each Alliance and each
Participating Member to access and use GHX Exchange
Standard. Novation, each Alliance and each Participating
Member shall each (a) protect the security of each
Identification, (b) have the right to access GHX Exchange
Standard exclusively for their respective business purposes,
(c) not disclose its Identification(s) to anyone other than those
of its authorized employees or agents with a need to know in
order to initiate transactions on GHX Exchange Standard, and
(d) not have the right to authorize third parties to access or
use GHX Exchange Standard for the benefit of any such third
party. Any and all persons accessing GHX Exchange Standard
using an Identification issued to the Participating Members
shall be deemed to have actual authority to transmit
transactions through GHX Exchange Standard on behalf of the
applicable Member. Any information that any Participating
Member inputs into GHX Exchange Standard will be solely the
responsibility of the Member whose Identification was utilized
to gain access. Novation will provide Service Provider prompt
notice of the loss or unauthorized disclosure of its
Identification, or upon notice of an unauthorized use of GHX
Exchange Standard with its Identification.

(b) GHX Exchange Security. Each Party shall take all


commercially reasonable steps necessary to protect the
security of accessing and conducting transactions through use
of the GHX Exchange, including without limitation the
implementation of virus protection

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software on its network, and of procedures to prevent abusive
or malicious acts or omissions against the GHX Exchange.
Except to access and make use of the GHX Exchange pursuant
to this Agreement, Novation and the Alliances may not
upload, download, modify, disassemble, decompile, or copy
Service Provider’s Intellectual Property or otherwise take any
action that may affect the use or functionality of the GHX
Exchange.

(c) Privacy. Novation and the Alliances will not breach or attempt
to breach GHX Exchange computer or software security,
attempt to access the information of any entity other than
Novation or the Alliance, as applicable, and the Participating
Members or otherwise invade the privacy of others in
connection with its use of the GHX Exchange.

3.2.3 Novation Marketplace. As to all Pre-Migration Members, Service


Provider shall maintain the same registration and authentication
procedures as are in effect for the Novation Marketplace as of the
date hereof.

3.3 Notice of Novation Contracts. Novation shall provide Service Provider


periodic notification (in a form mutually agreed upon by the parties) of all
effective group purchasing agreements between Novation and Suppliers to
enable Service Provider to make a distinction between Novation Contract
Products and Non-Novation Contract Products.

3.4 Provision of Product Information.

3.4.1 Provision of Non-Novation Contract Product Information. Service


Provider will use commercially reasonable efforts to obtain from
Suppliers the Product Data to be located on GHX Exchange Standard
in respect of all [*****] (except for [*****] addressed in Section
[*****]). Service Provider shall display such Product Data on GHX
Exchange Standard and use commercially reasonable efforts to keep
such Product Data up to date.

3.4.2 Provision of Novation Contract Product and [*****]. Novation, VHA or


UHC, as applicable, shall use commercially reasonable efforts to
obtain from Suppliers and provide to Service Provider [*****]
information for [*****], [*****] and any unique facts and [*****]
relating to such [*****] and [*****] that are prepared by Novation,
VHA or UHC, as the case may be. Service Provider shall display such
information on [*****] during the [*****] and keep such information
up-to-date in accordance with the Service Levels.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-20-
3.5 Removal of Materials and Products from NPS.

3.5.1 Removal of Materials. [*****] may request that any materials or data
that [*****] or any of the [****], in each of its sole discretion, believe
are likely to result in [*****] to Service Provider, Novation, HPPI, VHA,
UHC, any Members and/or any User be [*****] removed from any part
of NPS, and Service Provider shall [*****] comply with such requests.

3.5.2 Removal of Products. Upon written instructions from [*****] with


regard to [*****], or from [*****] or [*****] with regard to [*****],
Service Provider will [*****] remove any [*****] from [*****]. Service
Provider will notify [*****] with regard to [*****], or [*****] or [*****]
with regard to [*****], [*****] after becoming aware of any problem
with Products listed on [*****] that is [*****] to result in [*****] to
Service Provider, Novation, HPPI, VHA, UHC, Members, or any Users,
but Service Provider will have [*****] obligation to monitor or conduct
any investigation regarding liability or performance issues relating to
Products.

3.6 Other GPOs. Service Provider shall not make the [*****], [*****], [*****] or
any other information or data provided by Novation or any Alliance to
Service Provider, available to any other entity, including any GPO other than
VHA, UHC or HPPI. Service Provider shall act in accordance with its Guiding
Principles, a copy of which is attached hereto as Exhibit O.

3.7 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 Services.

4. NOVATION PROPRIETARY SERVICES AND CHANGES IN SERVICES

4.1 Novation Proprietary Services. [*****], [*****], [*****] or [*****] may each
elect, in its sole discretion, to enter into one or more Statements of Work
(“SOWs”) for Novation Proprietary Services or for changes to [*****] or for
additional [*****] or [*****] not included in the [*****]. Any SOW entered
into by [*****] shall be subject to the Change Control Procedures set forth in
Section 4.2 and other applicable provisions of this Agreement. Any SOW
entered into by [*****], [*****] or [*****] shall, unless otherwise provided
therein, (1) incorporate the terms of this Agreement except that the recipient
of services thereunder (i.e., [*****], [*****] or [*****]) shall be the party
thereto instead of [*****], (2) provide that charges pursuant to the SOW shall
be on a [*****] and [*****] and (3) will allow [*****] by [*****], [*****] or
[*****], as applicable, after [*****] without further [*****]. Each of [*****],
[*****] or [*****] shall inform the others of any SOWs that it intends to enter
into with [*****]. Any

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

-21-
deliverables created pursuant to a SOW (the “Deliverables”) shall be subject to the [*****]
provisions set forth in Section [*****].
4.2 Change Control for Novation Proprietary Services.

4.2.1 Change Control Procedure. In the event that (i) either [*****] or
[*****] wishes a change to the Novation Proprietary Services,
including changes in the [*****], [*****] or [*****] of the foregoing, or
(ii) [*****] requests new [*****] (each of the foregoing, a “Change”),
the requesting Party shall submit a written proposal to the other Party
describing such desired change (“Change Request”). The receiving
Party shall review the Change Request and reject or accept the
Change Request in writing within a reasonable period of time, but in
no event more than [*****] after receipt of the Change Request (the
“Response”). In the event that the Change Request is rejected, the
Response shall include the [*****] and, in the event that the Change
Request is rejected by [*****], [*****] shall wherever possible,
[*****] a [*****] to the requested Change. [*****] and [*****] shall
negotiate in good faith to agree on a Change, and its accompanying
terms, within [*****] after receipt of the Response; provided,
however, that either Party may, in its sole discretion, elect to not
agree to any Change. In the event that the Change Request is
accepted, the Parties shall mutually agree on the changes to be made
to this Agreement to reflect such Change. The changes or additional
terms and conditions (if any) shall be made only in a written Change
Order signed by an authorized representative of the Parties.
Notwithstanding the foregoing, nothing set forth in this Agreement
shall be construed to require renegotiation of existing Services.

4.2.2 Adjustment in [*****]. The [*****] [*****] hereunder may [*****] or


[*****] as a result of a [*****] agreed upon by the Parties pursuant to
the procedure set forth in Section 4.2.1 and such [*****] or [*****]
shall be negotiated by the Parties in good faith.

4.2.3 Emergency Changes. No Change shall be implemented without


[*****]’s approval, except reasonable, temporary Changes made on
an emergency basis that are necessary to maintain the continuity of
[*****]. If the need for an emergency change arises, either Party’s
Contract Administrator or his or her designee shall as [*****] submit
to the other Party a Change Request for such Change and each Party
shall, subject to the other terms and conditions of this Agreement,
use [*****] efforts to implement such Change [*****]. The Parties
shall thereafter agree, [*****], upon a Change Order regarding such
emergency Change.

_________________________

Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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5. SERVICE PROVIDER EXCLUSIVITY

5.1 Exclusivity. Service Provider agrees that during the Term of this Agreement it
will not operate as a group purchasing organization organized for the
purpose of negotiating specific prices on products and services to be
purchased by its members.

5.2 Marketing Other Services To Members. Service Provider shall not target
market any or all of the GHX Exchange to Members through arrangements
with other group purchasing organizations. Nevertheless, nothing shall
restrict Service Provider from offering the GHX Exchange to any other group
purchasing organizations and its members and, except for the obligation not
to target market such Services as set forth above in this Section 5.2, nothing
shall restrict Service Provider from selling such Services to members of such
other group purchasing organizations under Service Provider’s agreement
with such other group purchasing organization even if such member happens
to be a Member. Notwithstanding the foregoing, under no circumstances
shall the Service Provider offer or provide Novation Proprietary Services or
any other service involving the Novation Contracts to any Person other than
to a Member in accordance with the terms of this Agreement.

6. LICENSES

6.1 Marks. Each Party hereby grants to each of the other Parties a royalty-free,
non-exclusive, non-transferable, non-sublicenseable, worldwide license to
use and display during the Term the Party’s Marks only as necessary to
perform in accordance with the Agreement and subject to the Mark owner’s
prior approval of the form of use. The Mark owner may terminate the
foregoing Mark license if, in its reasonable discretion, the licensee’s use of
the Marks tarnishes, blurs or dilutes the quality associated with the Mark or
the associated goodwill and such problem is not cured within ten (10) days
of written notice of breach; alternatively, instead of terminating the license
in total, the owner may specify that certain licensee uses may not contain
such Marks. Title to, ownership of, and all proprietary rights (including,
without limitation, Intellectual Property Rights) and interest in the owner’s
Marks will remain with the Mark owner. The licensee will use the owner’s
Marks exactly in the form provided and in conformance with the owner’s
Mark usage policies. A copy of Novation’s current trademark usage
guidelines is attached as Exhibit I (“Novation’s Trademark Usage
Guidelines”). A copy of Service Provider’s current trademark usage
guidelines is attached as Exhibit J (“Service Provider’s Trademark
Usage Guidelines”). A copy of each of VHA’s, UHC’s and HPPI’s current
trademark usage guidelines are attached as Exhibit K (“VHA’s, UHC’s,
and HPPI’s Trademark Usage Guidelines”). The licensee will not take
any action inconsistent with the owner’s ownership of its Marks, and any
benefits accruing from use of such Marks will automatically vest in the Mark
owner. The licensee will not form any combination Marks with any

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other Party’s Marks. Subject to the provisions of Section 8.8, upon
termination or expiration of this Agreement, each Party will cease all use of
all Parties’ Marks.

6.2 Service Provider Materials. Service Provider grants to Novation a worldwide,


nontransferable, non-exclusive, royalty-free license to use the Service
Provider Materials only in promotional materials used to encourage
participation on the GHX Exchange and the Novation Marketplace, or to use
the NPS.

6.3 Novation Materials. Novation grants to Service Provider a worldwide,


nontransferable, non-exclusive, royalty-free license to use the Novation
Materials during the Term solely to enable Service Provider to provide the
Services contemplated under this Agreement.

6.4 Licenses; Source Code Escrow; Proprietary Rights.

6.4.1 Access License. Service Provider has developed Confidential


Information and trade secrets relating to the sale of its products and
services to a large number of customers in the healthcare industry
using proprietary business processes. Each of Novation, VHA, UHC
and HPPI acknowledges that Service Provider and its Affiliates have
invested substantial money in the development and maintenance of
such processes and in the sourcing and sales of products and
services. Each of Novation, VHA, UHC and HPPI will have a position of
special trust and confidence for the use of such Confidential
Information (including without limitation the roster of Service
Provider’s customers and business partners). Accordingly, during the
Term, Service Provider hereby grants to each of Novation, VHA, UHC
and HPPI a non-exclusive license to use Confidential Information and
such trade secrets for the limited purpose of providing the assistance
to Service Provider as contemplated in this Agreement. Additionally,
during the Term, Seller hereby grants to each of Novation, VHA, UHC
and HPPI a non-exclusive royalty-free license to use the Services
(including without limitation the Client Software) for the limited
purpose of providing assistance to Service Provider as contemplated
in this Agreement and to Participating Members and to the extent
necessary to receive Member Data, [*****] and Analytic Data as
contemplated hereby; provided, however, that nothing in this
Agreement grants Novation or the Alliances any license to use or
copy Product Data.

6.4.2 License to Service Provider. Neoforma, Novation, VHA, UHC and/or


HPPI have developed Confidential Information and trade secrets
relating to the development of [*****]. Service Provider
acknowledges that Neoforma, Novation, VHA, UHC and/or HPPI have
invested substantial money in the development and maintenance of
[*****]. Service Provider will have a position of special trust and
confidence for the use of [*****]

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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to support the purposes of this Agreement. Accordingly, during the
Term, to the extent of their rights therein, Novation, VHA, UHC and
HPPI hereby grant to Service Provider a limited, non-transferable,
royalty-free, non-exclusive license to use and, on the terms provided
herein, to modify [*****] and any Confidential Information of
Novation, VHA, UHC and HPPI related thereto for the limited purpose
of performing Service Provider’s obligations under this Agreement.

6.4.3 Grant of Source Code License.

(a) Subject to the terms of this Agreement, Service Provider


hereby grants, and Novation, VHA, UHC and HPPI each hereby
accepts, a nontransferable, non-assignable (except to
Affiliates of Novation, VHA, UHC or HPPI), non-exclusive,
limited and royalty-free license to modify and use the GHX
Exchange Software solely in accordance with this Section
6.4.3; provided, however, that Novation, VHA, UHC and HPPI
each agrees not to exercise its rights under such license to the
GHX Exchange Software unless and until the occurrence of an
Activation Event. Upon such occurrence, Novation, VHA, UHC
and HPPI each may use the GHX Exchange Software to
operate the GHX Exchange solely for the benefit of
Participating Members and limited to the extent necessary to
cause Suppliers’ products to remain available for purchase by
Participating Members. Subject to the conditions set forth
herein, Novation, VHA, UHC and HPPI each shall have the right
to run such software on an unlimited number of servers which
it controls and shall ensure that no distribution of such
software is permitted to any third party.

(b) Novation’s, VHA’s, UHC’s and HPPI’s license to use the GHX
Exchange Software set forth in Section 6.4.3(a) is limited
solely to the extent necessary to enable Participating
Members to use the GHX Exchange in the state it exists as of
the date of an Activation Event, and only for such limited
purpose. Novation, VHA, UHC and HPPI will each be entitled:
(i) to modify and make derivative works of the Client
Software; (ii) to use, reproduce, transmit and copy the Client
Software, and (iii) to sublicense the Client Software to
Participating Members; provided, however, Novation, VHA,
UHC and HPPI each agrees not to use, reproduce, transmit,
copy, distribute or sublicense the Client Software until the
occurrence of an Activation Event.

(c) In connection with the license granted under Section 6.4.3(a),


Novation, VHA, UHC and HPPI each shall have the right to use

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Updates to the Client Software that may become available to
Participating Members. Upon such availability of Updates to
the Client Software or GHX Exchange Software, as the case
may be, Service Provider shall provide each of Novation, VHA,
UHC and HPPI with one copy of each such Update (in object
code form only) without additional charge. Additionally, every
six months during the Term of this Agreement, upon the
request of Novation, VHA, UHC or HPPI Service Provider shall
deliver to each of Novation, VHA, UHC and HPPI, at no charge,
the current version of the GHX Exchange Software (in object
code form only) being used by Service Provider in operating
the GHX Exchange at such time.

(d) The licenses set forth in Sections 6.4.3(a) and (b) shall be
activated upon the occurrence of any of the following events
(each an “Activation Event”): (i) Service Provider or its
successor in interest makes a determination that it will no
longer operate the GHX Exchange (such determination will be
evidenced by: (A) Service Provider or its successor in interest
giving written notice thereof; or (B) Service Provider or its
successor in interest ceasing to operate the GHX Exchange,
and failing to respond to a written request from Novation,
VHA, UHC or HPPI for confirmation of such cessation within
five (5) business days of Service Provider’s receipt of such
written request); (ii) Service Provider has ceased its ongoing
business operations, or has ceased the sale, licensing,
maintenance or other support of the Client Software and no
successor of Service Provider has undertaken the sale,
licensing, maintenance and/or support of the Client Software;
or (iii) the GHX Exchange is not available to at least seventy-
five percent (75%) of Participating Members or is not available
to at least seventy-five percent (75%) of the Suppliers
integrated with the GHX Exchange, where the period of
unavailability in either case is five (5) consecutive business
days or greater, and the foregoing is not due to a Force
Majeure event. For purposes of this paragraph, unavailability
of the GHX Exchange means that the designated participants
are unable to transmit and receive transaction
communications due to failure of Service Provider systems
and operations and not due to any outside factors that are
outside of Service Provider’s control.

(e) Novation, VHA, UHC and HPPI’s rights related to the GHX
Exchange Software and Client Software that are licensed to
Novation, VHA, UHC and HPPI by Service Provider under this
Section 6.4.3 shall cease upon the first to occur of following
events:

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(i) The end of the Initial Term, or if this Agreement has
been renewed prior to the Activation Event, the
Renewal Term.

(ii) Immediately upon termination of this Agreement if


this Agreement has been terminated by Service
Provider as a result of an uncured material breach by
Novation, VHA, UHC or HPPI.

(iii) If Novation, VHA, UHC and HPPI’s rights are activated


as a result of the event described in clause (iii) of
Section 6.4.3(d), then such rights shall cease at such
time when Service Provider has cured the factors that
have caused such event to occur and Service Provider
becomes able to fulfill its obligations under the
Member Agreements to provide the GHX Exchange,
and Service Provider is able to demonstrate such
capability to Novation’s reasonable satisfaction.

6.4.4 Third Party Technology. Service Provider agrees to reasonably assist


and cooperate with Novation, VHA, UHC and HPPI in their efforts to
obtain, within ninety (90) days after the Effective Date of this
Agreement, a non-exclusive sublicense for each of Novation, VHA,
UHC and HPPI to use, and sublicense the Third Party Technology to
Participating Members solely for the purposes of operating the GHX
Exchange and distributing the Client Software as necessary for such
operation in accordance with these terms. Service Provider shall not
be required to assume any additional fees or costs in connection with
its obligations under this section, and Novation, VHA, UHC and HPPI
shall be responsible for all license fees and costs, including attorney
fees, associated with obtaining such rights from such Third Party
Technology providers.

6.4.5 Source Code Escrow.

(a) Prior to the Effective Date, Service Provider shall have


deposited a current version of the source code (to the extent
such source code is owned by Service Provider) for the GHX
Exchange Software and the Client Software and any other
software required to provide the Services and any associated
documentation that exists, other than software relating to the
Novation Marketplace as it exists immediately before the
Effective Time (the “Current Version”) with Iron Mountain,
Inc. or another escrow agent reasonably agreed by the Parties
(the “Escrow Agent”) pursuant to an escrow agreement
executed by each of the Parties and the Escrow Agent, in form
and substance satisfactory to each of the Parties (“Escrow
Agreement”). The Escrow Agreement shall be based on the
Escrow Agent’s standard three-party master escrow
agreement form, with release conditions conforming to the
Activation Events

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and such other changes as are approved by the Parties. None
of the Parties shall unreasonably withhold or delay its
approval of the Escrow Agreement. Service Provider further
agrees to deposit copies of the source code of any Updates or
other modifications to the GHX Exchange Software or the
Client Software (together with the Current Version, the
“Source Code”), to the extent there are Updates or other
modifications delivered to Novation, VHA, UHC and HPPI, each
six (6) months during the Term of this Agreement. Promptly
after the Effective Date and from to time to time hereafter,
Service Provider shall deposit, or cause to be deposited all
source code relating to NPS in the escrow arrangements
contemplated by the Escrow Agreement.

(b) Upon the occurrence of an Activation Event (as verified in


accordance with the terms of the escrow agreement),
Novation, VHA, UHC and HPPI each may exercise its rights
under the licenses set forth in Section 6.4.3 above with
respect to the Source Code, and the Escrow Agent shall deliver
the Source Code to each of Novation, VHA, UHC and HPPI.
Upon the delivery of the Source Code by the Escrow Agent,
Novation, VHA, UHC and HPPI each shall maintain the Source
Code in confidence in accordance with Section 10.1. Novation,
VHA, UHC and HPPI each shall use the Source Code to
exercise Novation, VHA, UHC and HPPI’s rights under Section
6.4.3 and for no other purpose. Novation, VHA, UHC and HPPI
each shall promptly return the Source Code to escrow upon
the first to occur of: (a) the expiration of the Initial Term or if
this Agreement has been renewed prior to the Activation
Event, the Renewal Term; (b) immediately upon termination of
this Agreement if this Agreement has been terminated by
Service Provider as a result of an uncured material breach by
Novation, VHA, UHC and HPPI; (c) if Novation, VHA, UHC and
HPPI’s rights with respect to the Source Code are activated as
a result of the event described in clause (iii) of Section
6.4.3(d), then such rights shall cease at such time when
Service Provider has cured the factors that have caused such
event to occur and Service Provider becomes able to fulfill its
obligations to make the GHX Exchange available, and Service
Provider is able to demonstrate such capability to Novation’s
reasonable satisfaction; or (d) when Novation, VHA, UHC and
HPPI have no further need to utilize the licenses granted in
this Section 6.4. Novation, VHA, UHC and HPPI shall each be
liable to Service Provider for all damages incurred by Service
Provider arising from or relating to any unauthorized
disclosure of the Source Code by it, or any third party
operating under the direction of it. All expenses associated
with providing the Source Code escrow for the benefit of
Novation, VHA, UHC and HPPI shall be paid by Novation.

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(c) Service Provider shall cause Neoforma (or its successor, if
any) to maintain in full force and effect any source code
escrow in effect on the Effective Date until the Migration
Deadline. Service Provider shall also cause Neoforma (or its
successor) to promptly deposit in such escrow any and all
material revisions or modifications after the Effective Date to
the software that is the subject of such escrow. In lieu of the
foregoing, Service Provider may subject all such software to
the Escrow Agreement, in which case “Source Code” shall be
deemed to include, in addition to the GHX Exchange Software
and Client Software, all the corresponding software relating to
the Novation Marketplace.

6.4.6 Proprietary Rights; Restrictions. Notwithstanding anything to the


contrary expressed or implied in this Agreement, Service Provider (or,
as applicable, its licensors) retains all right, title, interest, and
Intellectual Property Rights in and to the GHX Exchange and any
derivative works thereof. Except only as expressly set forth in this
Section 6.4, none of Novation, VHA, UHC or HPPI may itself, or allow
any third party to: (a) modify or otherwise generate any derivative
works from the GHX Exchange; or (b) disassemble, decompile or
otherwise reverse engineer the GHX Exchange or attempt to reveal
the trade secrets, know-how, source code (except as expressly
permitted under Section 6.4.5), or structure underlying the GHX
Exchange. None of Novation, VHA, UHC or HPPI shall provide access
to the GHX Exchange to any third party except as is expressly
authorized in this Agreement. Service Provider reserves to itself all
rights with respect to the GHX Exchange not expressly granted to
Novation, VHA, UHC or HPPI under this Agreement.

7. FEES AND TAXES

7.1 Fees. [*****] shall pay the fees set forth as part of Exhibit B (“Scope of
Services”) for [*****], the [*****], [*****] and the [*****] (the “Service
Fees”). Fees for [*****] (other than [*****] and [*****]) shall be as set forth
in the applicable [*****]. [*****] who wish to receive the [*****] shall be
responsible for the [*****].

7.2 Taxes. Service Provider, Novation, VHA, UHC and HPPI shall take reasonable
steps to 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 Product through the Novation Marketplace or
the GHX Exchange or relating to [*****].

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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7.3 Other Expenses. No Party shall be required to pay to any other Party any
amounts for the performance of their respective obligations hereunder other
than those expressly set forth in this Agreement.

7.4 Payment Terms.

7.4.1 Invoices. Service Provider shall issue to Novation at least thirty (30)
days prior to the beginning of a calendar month an invoice for the
Service Fees and other charges due Service Provider for such calendar
month hereunder and not otherwise invoiced (collectively,
“Charges”).

7.4.2 Payments. All invoices submitted by Service Provider to Novation are


due and payable on or before the first day of a calendar month.

7.4.3 Credits. With respect to any amounts to be paid or reimbursed by


Service Provider to Novation pursuant to this Agreement or pursuant
to liquidated damages provisions, as set forth in Section 2.3.1,
Service Provider may, at its option, pay such amounts to Novation by
giving Novation a credit to be applied against Charges otherwise
payable to Service Provider.

7.5 Member-Based Pricing.

7.5.1 Conversion to Member-Based Pricing. Except for [*****] Member-


Based Pricing (as addressed in 7.5.2), the Parties shall begin to
convert to pricing based on payment for the [*****] by the Members
(“Member-Based Pricing”) by [*****]. Notwithstanding the
foregoing, upon the prior written approval of VHA, UHC and Novation,
they may elect to [*****] the date for conversion to Member-Based
Pricing at any time. Upon the earlier of written notice from Novation
that Novation, VHA and UHC have elected to proceed with Member-
Based Pricing on [*****] basis, or [*****], the Parties shall work
together in good faith to develop a detailed plan for such conversion
beginning at least [*****] prior to the anticipated date of conversion
to Member-Based Pricing. Upon written approval of such a Plan by
each of Novation, VHA and UHC, each Party shall be obligated
hereunder to take the respective actions set forth under such plan by
the applicable deadlines set forth therein. In developing the detailed
plan, the parties shall negotiate appropriate amendments to this
Agreement to (i) credit in full against the [*****] [*****] amounts
collected from [*****] of [*****] and/or [*****] paying under Member-
Based Pricing, and (ii) specify payment mechanics to effect the
foregoing credit.

7.5.2 [*****] Member-Based Pricing. Notwithstanding Section 7.5.1, [*****]


Members shall pay for access to the [*****] (including any [*****]
services if they so elect) through Member-Based Pricing as of the

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Effective Date, which Member-Based Pricing shall be subject to
Section 2.2.3.

8. TERM AND TERMINATION

8.1 Initial Term. This Agreement shall become effective at the Effective Time and
will remain in effect until 11:59 P.M. Central Time Zone on December 31,
2011 (the “Initial Term”), unless terminated earlier in accordance with the
terms of this Agreement.

8.2 Renewal and Extension of Term. None of the Parties shall be obligated to
renew or extend this Agreement beyond the Initial Term. However, if Service
Provider wishes to extend or renew this Agreement, then at least [*****]
prior to the expiration of the Initial Term, Service Provider shall deliver to
each of the other Parties a proposal describing the terms on which this
Agreement would be extended for an additional [*****] (“Renewal
Proposal”). The pricing in the Renewal Proposal shall be the most favorable
pricing that Service Provider provides, directly or indirectly, to any Person
that receives services that are the same as or substantially similar to any of
the Services to be provided during the Renewal Term, unless otherwise
specifically disclosed in the Renewal Proposal (such disclosure to include
how the proposed pricing differs from any more favorable pricing). At least
[*****] prior to the expiration of the Initial Term, each of Novation, VHA or
UHC shall provide notice to Service Provider and to the other Parties of its
intent to (i) accept the Renewal Proposal describing the terms on which this
Agreement will be extended, and the appropriate Parties shall promptly
begin drafting a renewal agreement including such terms; (ii) not renew this
Agreement (“Non-Renewal Notice”); or (iii) negotiate with Service Provider
the terms on which to renew the Agreement. Any statement or notice of such
intent by a Party is not binding on any other Party. In the event that all of the
Parties agree in writing on terms for a Renewal Term, the Agreement shall,
except as otherwise expressly agreed in writing, renew for one (1) [*****]
term after the completion of the Initial Term ( “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”.

8.3 Termination for Cause or Dissolution.

8.3.1 For Cause. Each of Service Provider and Novation will have the right
to terminate this Agreement if such other Party breaches any of its
obligations under this Agreement in any material respect unless the
breaching Party (x) cures such breach within [*****] after receiving
written notice of such breach or (y) if such breach is not curable
within such [*****] period, makes substantial progress in curing such
breach

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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within such [*****] period and cures such breach within [*****] after
receiving written notice of such breach. Novation may terminate this
Agreement (i) for Service Provider’s failure to meet its Service Level
obligations hereunder only as set forth in Exhibit C or (ii) if Service
Provider is unable to perform for more than [*****] all or a
substantial portion of the Services due to any third party claim of
infringement or misappropriation of Intellectual Property Rights
whether or not it is the subject of indemnification hereunder. Any
dispute regarding whether a breach has occurred or has been cured or
the nature of such breach shall be addressed in accordance with
Section 17.

8.3.2 Novation Dissolution. In the event that the Amended and Restated
Operating Agreement, dated January 25, 2001, as amended from time
to time, between VHA and UHC (“Novation Operating
Agreement”) is terminated (and not replaced by any successor
document) (the “Novation Dissolution”), effective as of the date
specified by either VHA or UHC in a written notice to Service Provider,
each of Service Provider, VHA and UHC shall, pursuant to good faith
negotiations, enter into separate agreements for the remainder of the
current Term with Service Provider upon the terms and conditions
hereof, with the aggregate price for the Services to be rendered under
the new separate agreements to be allocated as directed in writing
by VHA and UHC and shall not exceed the total amounts otherwise
due hereunder. Service Provider shall negotiate in good faith with
VHA or UHC if such Party wishes to reduce the Services to be
received under such a separate agreement in order to reduce Service
Provider’s costs and the amounts due for such Services; provided
that, if Service Provider agrees to reduce such Services and Fees,
Service Provider shall have no obligation to reduce fees by an
amount greater than its costs are reduced. If requested by any one or
more of VHA or UHC, Service Provider shall establish a separate
“look and feel” for the Party so requesting and charge a reasonable
fee for such service.

8.3.3 Termination of Merger Agreement. This Agreement shall terminate,


automatically and without notice, if, prior to the Effective Time, the
Merger Agreement is terminated in accordance with its terms.

8.4 Termination for Insolvency Events.

8.4.1 Service Provider Insolvency Event. If Service Provider becomes or is


declared insolvent, becomes subject to a voluntary or involuntary
bankruptcy or similar proceeding, or makes an assignment for the
benefit of all or substantially of all of its creditors (“Insolvency
Event”), then in such event, Novation may terminate this Agreement
immediately upon providing written notice of termination to Service
Provider or, if such

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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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.

8.4.2 Novation Insolvency Event. If Novation becomes the subject of an


Insolvency Event, each of Service Provider, VHA and UHC shall,
pursuant to good faith negotiations, enter into separate agreements
for the remainder of the current Term with Service Provider upon the
terms and conditions hereof, with the aggregate price for the Services
to be rendered under the new separate agreements to be allocated as
directed in writing by VHA and UHC and shall not exceed the total
amounts otherwise due hereunder. Service Provider shall negotiate in
good faith with VHA or UHC if such Party wishes to reduce the
Services to be received under such a separate agreement in order to
reduce Service Provider’s costs and the amounts due for such
Services; provided that, if Service Provider agrees to reduce such
Services and Fees, Service Provider shall have no obligation to reduce
fees by an amount greater than its costs are reduced. If requested by
any one or more of VHA or UHC, Service Provider shall establish a
separate “look and feel” for the Party so requesting and charge a
reasonable fee for such service.

8.4.3 VHA or UHC Insolvency Event. If UHC or VHA (the “Insolvent V/U/N
Party”) becomes the subject of an Insolvency Event, each of Services
Provider and the other Parties (excluding HPPI and the Insolvent
V/U/N Party) (the “Solvent V/U/N Parties”) shall, pursuant to good
faith negotiations, enter into separate agreements for the remainder
of the current Term with Service Provider upon the terms and
conditions hereof, with the aggregate price for the Services to be
rendered under the new separate agreements to be allocated as
directed in writing by the Solvent V/U/N Parties. Service Provider shall
negotiate in good faith with any Solvent V/U/N Party if such Party
wishes to reduce the Services to be received under such a separate
agreement in order to reduce Service Provider’s costs and the
amounts due for such Services as well as a reduction of Service
Provider’s costs and the amounts due for Services by reason of the
elimination of Services to the Insolvent Party. Such good faith
negotiations shall be conducted within the following limitations: (a)
the aggregate price for the Services to be rendered under the new
separate agreements shall not exceed the total amounts otherwise
due hereunder; (b) Service Provider shall have no obligation to reduce
fees by an amount greater than its costs are reduced; (c) Solvent
V/U/N Parties shall not be obligated to pay more than their Novation
Fee Share (as defined below) prior to the Insolvency Event; (d) no
Solvent V/U/N Party shall have the right to terminate this Agreement
as provided below if, under a new separate agreement (upon the
terms and conditions hereof) offered, it would have the right to
receive the same Services it received prior to the Insolvency Event
for an aggregate cost to both Solvent V/U/N Parties no more than their
Novation Fee Share prior to the Insolvency Event; and (e)

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Service Provider shall not have the right to terminate this Agreement
as provided below if, under a new separate agreement (upon the
terms and conditions hereof) offered, Service Provider would provide
the same Services it provided to the Solvent V/U/N Parties prior to the
Insolvency Event and have the right to receive an aggregate price for
such Services at least equal to (and no less than) the Solvent V/U/N
Parties’ Novation Fee Share prior to the Insolvency Event. In the event
that following such good faith negotiations Service Provider and the
Solvent V/U/N Parties fail to reach separate agreements for the
remainder of the current Term, than any of Service Provider or the
Solvent V/U/N Parties may terminate this Agreement. If requested by
any one or more of Solvent V/U/N Parties, Service Provider shall
establish a separate “look and feel” for the Party so requesting and
charge a reasonable fee for such service. Nothing in this Agreement
is intended to constitute a waiver or release of any claim that Service
Provider or any Solvent V/U/N Party may have against any Party that
becomes the subject of an Insolvency Event or under Section 19. In
addition, and notwithstanding anything else in this Agreement,
Service Provider may immediately take all actions reasonably
necessary to convert the Members of an Insolvent V/U/N Party to
Member-Based Pricing. “Novation Fee Share” shall mean, with
respect to Novation and the other Solvent V/U/N Party collectively,
such other Solvent V/U/N Party’s share of the aggregate price for the
Services paid by Novation hereunder prior to the Insolvency Event.

8.5 Termination Upon Service Provider Change of Control. Service Provider shall
promptly notify Novation of the effectiveness of any Service Provider
Change of Control. In the event Novation has not previously consented to a
Service Provider Change of Control, Novation shall have the right to
terminate this Agreement effective on the date specified in Novation’s notice
of termination, in the event of receipt of any such notice from Service
Provider of a Service Provider Change of Control, or upon the effectiveness of
any Service Provider Change of Control or thereafter in the event no notice is
given in accordance herewith.

8.6 Return of Materials. Upon termination or expiration of this Agreement and


any applicable Termination Assistance Period for any reason, Service
Provider, Novation and each of the Alliances shall promptly return to the
other Parties, and shall not take, use or disclose, all records (in any form,
format or medium) containing or relating to Service Provider Materials or
Novation Materials or the Confidential Information of the other Parties,
except that Service Provider and Novation may each maintain a copy of such
records for archival purposes, to meet obligations to joint owners of
Transaction Data, to comply with laws, for internal audit purposes, for
purposes of defense of litigation, for continuity of business purposes and to
establish or protect a Party’s rights under this Agreement, and Novation shall
provide a copy to each of VHA, UHC and HPPI for such purposes.

8.7 Survival. All rights and obligations with regard to information disclosed or
matters occurring or arising before the effective date of termination, and all
rights

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and obligations which by their terms are intended to survive termination or
expiration of this Agreement, will survive such termination or expiration,
including, without limitation, the rights and obligations set forth in Sections
6.4.3, 6.4.5, 6.4.6, 8.6, 8.7, 8.8, 8.9, 9, 10, 11.3.2, 11.4, 14, 15, 16, 17, 18 and
19, and the final sentence of Section 2.5.4(d). The foregoing rights and
remedies shall be cumulative and in addition to all other rights and remedies
available in law and in equity.

8.8 Termination Assistance Services. Upon the later of termination or expiration


of this Agreement or the end of the Termination Assistance Period, Service
Provider will (i) de-activate all Identifications of Novation, the Alliances and
all Participating Members who are not subject to Member-Based Pricing at
such time, and (ii) if this Agreement has expired or if any party other than
Service Provider has terminated this Agreement in accordance with Section
8.3.1, refund an allocable portion of Fees paid for any period after
termination and provide Novation and each Alliance with an electronic copy
of the Member Data and [*****]. Service Provider hereby grants to Novation
and each Alliance the perpetual right to use the foregoing materials for their
use internally and with their Members and, if applicable, for re-hosting and
use on an e-commerce system that is competitive with the GHX Exchange,
solely for the use of Novation, the Alliances and their Members. Service
Provider will provide the Termination Assistance Services during the
Termination Assistance Period. Except as otherwise provided in this Section
8.8, this Agreement shall remain in full force and effect during the
Termination Assistance Period. For the first [*****] of the Termination
Assistance Period, the Charges required to be paid hereunder shall be
reduced by [*****]. Thereafter, Termination Assistance Services shall be
provided at Service Provider’s then-current Charges.

8.9 Equitable Remedies. Each Party reserves its rights to seek equitable relief in
connection with the enforcement of any of its rights hereunder. If a court of
competent jurisdiction should find that any Party has breached (or attempted
or threatened to breach) any of its obligations hereunder, such Party 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 it or restraining it from further breaches (or
attempted or threatened breaches).

9. DATA RIGHTS; INTELLECTUAL PROPERTY

9.1 Data Rights.

9.1.1 Member Data. Novation shall have the right to access and use all
Member Data as provided herein. For purposes of this Agreement,
“Member Data” shall be defined as Transaction Data with respect to
which either (i)

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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the applicable Participating Member or (ii) the applicable Supplier has
consented to Novation’s and the applicable Alliance’s access to and
use of such Transaction Data either pursuant to an agreement with
Service Provider or Neoforma or as separately agreed between the
Member or Supplier, as applicable, and Novation. During the Term, (i)
access of Novation or the applicable Alliance to Member Data arising
solely from the consent of a particular Participating Member shall
continue as long as the Member remains a Participating Member and
is subject to an agreement with Service Provider or Neoforma and as
long as such Participating Member’s consent to such access remains
in effect, and (ii) Novation’s access to Member Data arising solely
from a Supplier’s consent shall continue as long as the Supplier’s
consent to such access remains uncontested and in effect.

9.1.2 Transaction Data. As between the Parties to this Agreement, the


parties to each transaction that is executed in whole or in part via the
GHX Exchange or Novation Marketplace after the Effective Time (e.g.,
the applicable Supplier and Participating Member) will each own the
Transaction Data relating to such transaction. Neither Service
Provider nor Novation may disclose any Transaction Data to any third
party without the consent of one of the owners of such Transaction
Data. All Transaction Data will be deemed to be Confidential
Information and therefore subject to the provisions of Article 10
hereof (and subject to rights and restrictions related to such
Transaction Data as apply between the Member and Service Provider,
Neoforma or Novation, as the case may be).

9.1.3 Aggregated GHX Data. Service Provider will not include Transaction
Data in Aggregated GHX Data without the consent of both the
Supplier and the Participating Member that are parties to the
transaction to which the Transaction Data relates. Notwithstanding
any provision of this Agreement to the contrary, (i) no Aggregated
GHX Data shall be compiled by Service Provider or any of its
Affiliates in which Members are parties to more than [*****] of the
transactions that generate the Transaction Data included in the
compilation of Aggregated GHX Data, (ii) neither Service Provider nor
any of its Affiliates, (including, without limitation, any other GPO)
shall have the right to use any Transaction Data of Members of any
Alliance to create Aggregated GHX Data that permits a recipient to
compare GPOs or to compare academic medical centers and non-
academic medical centers, and (iii) each of VHA, UHC and HPPI shall
have the right (subject to the terms of any license or other
permission of its Members) to aggregate Member Data, to prepare
Aggregated Alliance Member Data and to perform analysis using
Member Data with respect to each of their Members in each of its
sole discretion. If Service

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Provider begins offering Aggregated GHX Data to third parties during
the Term, then Service Provider shall provide Aggregated GHX Data
that is based in part on the Member Data to Novation [*****] during
the [*****] period following the Effective Date and, following such
period but prior to the expiration or termination of the Term, at pricing
[*****] [*****] [*****] the [*****] [*****] [*****] by [*****] to any
[*****] [*****] in [*****] with Section [*****].

9.1.4 Aggregated Alliance Member Data. Each of VHA, UHC and HPPI
hereby grant the following licenses with respect to its Aggregated
Alliance Member Data:

(a) A nonexclusive, non-transferable royalty-free license to


Novation to access and use such Aggregated Alliance Member
Data only as directed by each of VHA, UHC or HPPI ; and

(b) A nonexclusive, non-transferable royalty-free license to


Service Provider to use such Aggregated Alliance Member
Data only to the extent that such use is: (i) required for the
performance of Service Provider’s obligations pursuant to this
Agreement and (ii) in accordance with the confidentiality
provisions of Section 10.

Assuming that it has the requisite rights from its Members, each
Alliance may prepare (or cause a third party, including Service
Provider, to prepare on its behalf) any and all (i) Aggregated Alliance
Member Data that the Alliance deems appropriate with respect to its
Members and (ii) combinations of such data that two or more of the
Alliances may deem appropriate with respect to each of their
Aggregated Alliance Member Data, in each case without the consent
of or license from any Supplier.

9.1.5 Product Data. All Product Data provided by a Supplier shall be owned
by the Supplier of the Product which the Product Data describes.

9.2 Analytic Data. Subject to the rights of Members and Service Provider with
respect to the underlying Transaction Data, all Analytic Data shall be owned
by Novation. Novation hereby grants to each of UHC, VHA and HPPI a non-
exclusive, royalty-free license to use for any purposes whatsoever the
Analytic Data that Novation owns.

9.3 No Other Licenses or Use. Except as expressly set forth in this Section 9,
none of the Alliances, Novation or Service Provider grants any license,
express or implied, in any of the Transaction Data, Product Data, Analytic
Data, [*****]

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Data or [*****]. The failure to abide by the terms and conditions of this
Section 9 shall constitute a material default of this Agreement.

9.4 Ownership by Third Parties. The GHX Exchange, the Novation Marketplace
[*****] and the AllSource® Catalog contain third party Marks and other
Intellectual Property belonging to third parties, including Product Data and
Transaction Data. All such Intellectual Property is and will remain the
property of its respective owners. The Parties acknowledge that, from time
to time, the Parties may use third parties to provide certain data for use on
or in connection with the GHX Exchange and the Novation Marketplace
pursuant to a separate agreement with a third party (e.g., supply line data
that is provided by [*****]). The Parties acknowledge that all data that a
Party gathers or develops independent of this Agreement shall not be
covered by this Agreement, provided that Service Provider shall not solicit
any such information from a Member without fully disclosing to the Member
all intended uses for which such information is being collected and will be
used.

9.5 Intellectual Property.

9.5.1 Deliverables. As between Service Provider and VHA, UHC, HPPI or


Novation, as the case may be, the ownership of all Deliverables
created pursuant to Section 4 of this Agreement and all Intellectual
Property Rights related thereto shall be mutually agreed by the
parties to each SOW and set forth therein.

9.5.2 Proprietary Rights; Restrictions. Notwithstanding anything to the


contrary expressed or implied in this Agreement, but subject to
Article 4 hereof, each Party (or, as applicable, its licensors) retains all
right, title, interest in and to its Intellectual Property, and any
derivative works thereof and improvements thereto, and each Party
reserves to itself all rights with respect thereto. For purposes of this
Agreement, “Intellectual Property” collectively means any and all
copyrights, patents, patent registration rights, business processes,
data rights, mask works, Marks and associated goodwill, trade
secrets, know how, moral rights, design and so-called “look and feel”
and graphical user interface, data flows, product and connectivity
specifications, schematics, documentation, source code and object
code, data maps and definitions and other proprietary rights of each
Party, whether such is now existing or may hereafter come into
existence. With respect to Service Provider, Intellectual Property
includes, without limitation: (i) the GHX Exchange (including, without
limitation, all web pages of such Exchange and Service Provider’s
proprietary XML schema and document type definitions, to the extent
that the same exist); (ii) the AllSource® Catalog; and (iii) Aggregated
GHX Data, but excluding in

_________________________

Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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each of (i) through (iii) Transaction Data and Product Data. With
respect to Novation, Intellectual Property includes, without limitation:
(i) Novation Materials; (ii) Intellectual Property comprising or included
in Novation Proprietary Services; but excluding in each of (i) and (ii)
Transaction Data and Product Data. As between Service Provider and
Novation on the one hand, and each of VHA, UHC and HPPI on the
other hand, each of VHA, UHC and HPPI shall own the Aggregated
Alliance Member Data with respect to its Members. Notwithstanding
the foregoing and except as expressly provided in Section 9.1.2,
nothing in this Agreement shall affect any Party’s ownership or other
rights in Intellectual Property created or arising prior to the Effective
Date.

10. SAFEGUARDING OF DATA; CONFIDENTIALITY

10.1 Confidentiality.

10.1.1 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
designated “confidential” or “proprietary” or which, under the
circumstances, should reasonably have been understood to be
confidential, (iii) the terms and conditions of this Agreement, (iv) all
Transaction Data, except as provided in Section 9, (v) as to Novation
and the Alliances, all [*****], except as provided in Section 9, (vi)
with respect to an Alliance, information regarding the affairs and
business of their respective Affiliates, Members or customers, (vii)
with respect to Novation, all Novation Materials, the Novation
Contracts and all information contained therein or related thereto,
(viii) with respect to Novation and each Alliance, all Aggregated
Alliance Member Data relating to the Members of such Alliance, (ix)
with respect to GHX, all Aggregated GHX Data and (x) with respect to
Novation and each Alliance, all Analytic Data relating to the Members
of such Alliance.

10.1.2 Confidentiality Obligations. Each Party agrees that (i) it will not use or
disclose to any other Party or third Person including its Affiliates
(other than its wholly-owned subsidiaries) 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.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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10.1.3 Exclusions. Section 10.1.2 will not prevent a Party from disclosing
Information that such Party demonstrates: (i) is owned by such Party
or its Affiliates or is already known (except via a breach of this
Agreement) 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 breach of this
Agreement or other unauthorized act of the recipient Party, (iii) is
rightfully received from a third party, provided that (A) the source is
not known to be bound by a confidentiality agreement, and (B) this
clause (iii) shall in no event apply to Transaction Data transmitted by
or to Members, 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 17, such Confidential Information may be disclosed pursuant
to and in accordance with the approval and at the direction of the
arbitrator conducting such proceeding.

10.1.4 No License. Nothing contained in this Section 10.1 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, Mark, trade secret or other Intellectual
Property Rights or any license to the Confidential Information of the
other Party.

10.1.5 Loss of Confidential Information. In the event of any breach by the


recipient Party of this Section 10.1 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.

10.2 Safeguarding of Data. Service Provider shall maintain appropriate


safeguards, consistent with prevailing industry standards, against the
destruction, inappropriate disclosure, wrongful access or use, loss or
alteration of Novation’s or either Alliance’s Confidential Information in the
possession of Service Provider. In any event, Service Provider shall maintain
safeguards that are no less

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rigorous than those maintained by Service Provider for its own information of
a similar nature and, in no event, less than a reasonable level of safeguards.
Novation and each Alliance shall maintain appropriate safeguards,
consistent with prevailing industry standards, against the destruction,
inappropriate disclosure, wrongful access or use, loss or alteration of Service
Provider’s Confidential Information in the possession of Novation or such
Alliance, as the case may be. In any event, Novation and the Alliances shall
maintain safeguards that are no less rigorous than those maintained by
Novation and the Alliance for their own information of a similar nature and,
in no event, less than a reasonable level of safeguards.

10.3 Business Associate Provisions. To the extent reasonably requested by any


Party, each Party will enter into one or more addenda to this Agreement to
enable the other Parties to satisfy their obligations as business associates of
the Members, including the obligation to extend certain confidentiality
obligations to subcontractors of such a Party as a business associate.

11. REPRESENTATIONS, WARRANTIES AND COVENANTS

11.1 Representations by Service Provider. Service Provider represents and


warrants to Novation, VHA, UHC and HPPI that each of the following
statements in this Section 11.1 are true and correct as of the date hereof and
as of the Effective Time (except as otherwise provided below).

11.1.1 Due Organization. Service Provider is a limited liability company duly


organized, validly existing and in good standing under the laws of the
State of Delaware.

11.1.2 Authority; Non-Contravention.

(a) Service Provider has all requisite limited liability company


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 part of
Service Provider. This Agreement has been duly executed and
delivered by Service Provider, and it constitutes the valid and
binding obligation of Service Provider, enforceable against
Service Provider 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 Service


Provider does not, and the performance of this Agreement by
Service Provider will not, (i) conflict with or violate the GHX
Formation Agreement, the GHX LLC Agreement or other
organizational

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documents of Service Provider, (ii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to
Service Provider or by which Service Provider 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 Service
Provider’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 Service Provider pursuant to, any note, bond, mortgage,
indenture, agreement, lease, license, permit, franchise or
other instrument or obligation to which Service Provider is a
party or by which Service Provider 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 Service Provider.

(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 Service Provider in connection with
the execution, delivery and performance of this Agreement,
except those already obtained as of the Effective Date.

11.1.3 Performance. All Services will be performed throughout the Term in a


professional and workmanlike manner.

11.1.4 Extension of Other Agreements. Except as otherwise provided on


Exhibit N hereto, all agreements with members of Service Provider
(including, without limitation, HCA Inc., Premier, Inc. and each of their
Affiliates) have been extended until [*****] on the same terms as
were in effect on [*****], other than amendments to its agreements
with Premier, Inc., HCA Inc. and their respective Affiliates solely to
conform certain provisions of such agreements to the provisions of
this Agreement (the “Conforming Amendments”). Service Provider
has provided accurate and complete copies of such agreements with
each of such entities as they were in effect on [*****] (or prior to the
date of the Merger Agreement in the case of the Conforming
Amendments), except for the redaction of certain confidential
information.

11.1.5 Source Code Escrow. As of the Effective Time, with respect to all
Source Code owned or controlled by Service Provider immediately
before the Effective Date, Service Provider has taken all actions
required to be taken on or before the Effective Date pursuant to
Section 6.4.5.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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11.1.6 Agreements.

(a) All agreements between Service Provider and Suppliers that


are currently in effect are in the form provided to Novation
and the Alliance or have only immaterial modifications
thereto.

(b) All agreements between Service Provider and any GPO that
are currently in effect are set forth on Exhibit M and complete
copies (subject to redaction of certain confidential
information) have been provided to Novation and the
Alliances. Exhibit M also sets forth any pricing policy,
understanding or arrangement that is currently in effect with
respect to any GPO that is not a party to an agreement with
Service Provider or members of such a GPO.

(c) Service Provider charges a fee for all services that it provides
to customers, except for its WebConnect product.

11.2 Representations by Novation, VHA, UHC and HPPI. Each of Novation, VHA,
UHC and HPPI, severally and not jointly, represents and warrants to Service
Provider that the following statements made by it in this Section 11.2 are
true and correct as of the date hereof and as of the Effective Time.

11.2.1 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.

11.2.2 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

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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 or 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.

11.3 Compliance with Laws and Regulations; Other Covenants.

11.3.1 Compliance with Laws. Service Provider represents and warrants that
throughout the Term, Service Provider and the Services shall be and
shall remain in compliance with all applicable federal, state and local
laws and regulations. Each of Novation, VHA, UHC and HPPI
represents and warrants that throughout the Term, Novation, VHA,
UHC and HPPI shall be and shall remain in compliance with all
applicable federal, state and local laws and regulations.

11.3.2 HHS and Comptroller General. Service Provider agrees that, until the
expiration of four (4) years after the furnishing of any goods and
services pursuant to this Agreement, it will make available, upon
written request of the Secretary of Health and Human Services or the
Comptroller General of the United States or any of their duly
authorized representatives, copies of

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this Agreement and any books, documents, records and other data of
Service Provider that are necessary to certify the nature and extent of
the costs incurred by Members in purchasing such goods and
services. If Service Provider carries out any of its duties under this
Agreement through a subcontract with a related organization
involving a value or cost of ten thousand dollars ($10,000) or more
over a twelve-month period, Service Provider will cause such
subcontract to contain a clause to the effect that, until the expiration
of four (4) years after the furnishing of any good or service pursuant
to said contract, the related organization will make available upon
written request of the Secretary of Health and Human Services or the
Comptroller General of the United States or any of their duly
authorized representatives, copies of this Agreement and any books,
documents, records and other data of said related organization that
are necessary to certify the nature and extent of costs incurred by
Service Provider for such goods or services. Service Provider shall
give Novation, VHA, UHC and HPPI notice immediately upon receipt
of any request from the Secretary of Health and Human Services or
the Comptroller General of the United States or any of their duly
authorized representatives for disclosure of such information.

11.3.3 No Exclusion or Debarment. Service Provider represents and


warrants, as of the Effective Date, that Service Provider has not: (a)
been listed by any federal or state agency as excluded, debarred,
suspended or otherwise ineligible to participate in federal and/or
state programs; or (b) been convicted of any crime relating to any
federal and/or state program. Service Provider further agrees to
immediately notify Novation, VHA, UHC and HPPI in writing in the
event Service Provider is listed by a federal or state agency as
excluded, debarred, suspended or otherwise ineligible to participate
in any federal and/or state programs or if Service Provider is
convicted of any crime relating to any such program.

11.3.4 No Exchange of Competitively Sensitive Information. None of


Novation, VHA, UHC or HPPI will use the Exchange or activities
related to the Exchange for the purposes of exchanging among
Suppliers or their Affiliates competitively sensitive information such
as prices or terms of sale.

11.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS


AGREEMENT, EACH OF NOVATION, VHA, UHC AND HPPI DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE. SERVICE PROVIDER MAKES NO REPRESENTATIONS,
WARRANTIES OR COVENANTS TO ANY OTHER PARTY HEREUNDER
WITH RESPECT TO ANY PRODUCTS SOLD THROUGH THE GHX
EXCHANGE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
SERVICE PROVIDER PROVIDES

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ALL SERVICES HEREUNDER “AS IS.” SERVICE PROVIDER HEREBY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE WITH REGARD TO THE SERVICES. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER
MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO
ACCURACY OF DATA. SERVICE PROVIDER DOES NOT WARRANT THAT
IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS IN THE
SERVICES OR THAT USE OF THE SERVICES, ACCESS TO PRODUCT
DATA OR LINKS TO OTHER SUPPLIER MATERIALS WILL BE
UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, SERVICE PROVIDER PROVIDES NO WARRANTIES
WITH RESPECT TO THE FUNCTIONALITY OF THE GHX EXCHANGE
SOFTWARE AND THE CLIENT SOFTWARE. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, SERVICE PROVIDER MAKES NO WARRANTY
REGARDING FEATURES, SOFTWARE OR SERVICES PROVIDED BY
THIRD PARTIES.

12. USE OF SUBCONTRACTORS; RIGHTS TO REQUEST REPLACEMENT

12.1 Generally. Service Provider may subcontract its obligations under this
Agreement subject to the limitations imposed by this Section 12.1. Service
Provider shall not subcontract any Services included in the Member-Facing
Plan to a Competitor.

12.2 Right to Request Replacement. Novation and each of the Alliances shall have
the right during the Term to request that Service Provider withdraw and
replace (or cause to be withdrawn and replaced, as the case may be), as
soon as reasonably possible, an employee of Service Provider, any of its
Affiliates or subcontractors who is providing Services included in the
Member-Facing Plan. Service Provider will approve any such request if
Service Provider determines that the individual’s performance is materially
deficient, good faith doubts exist concerning the individual’s ability to render
future performance, or there have been material misrepresentations by or
concerning the individual.

12.3 Continuing Responsibility. Service Provider shall remain responsible for


obligations performed by subcontractors to the same extent as if such
obligations were performed by Service Provider. Service Provider shall be
Novation’s sole point of contact regarding the Services, including with
respect to payment.

12.4 Confidential Information. Service Provider shall not disclose Confidential


Information of any of Novation, VHA, UHC, HPPI or any of their Members to a
subcontractor unless and until such subcontractor has agreed in writing to
protect

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the confidentiality of such Confidential Information in all material respects as
required of Service Provider under this Agreement.

13. INSURANCE

13.1 Insurance. Service Provider, Novation and each Alliance 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.
Service Provider will maintain and keep in force during the Term general
liability insurance, workers compensation insurance and property damage
insurance with a minimum combined single limit of liability in the amount of
not less than $1,000,000 per occurrence and $3,000,000 in the aggregate and
will name Novation, VHA, UHC and HPPI, as their interests may appear, as
additional insureds. The foregoing liability limits can be satisfied through a
combination of primary and excess policies.

13.2 Proof of Insurance. On the Effective Date and when otherwise requested by
Novation, Service Provider will provide a certificate of insurance reflecting
the coverage described in Section 13.1 issued by an insurance company and
signed by an authorized agent. Service Provider will not amend, in any
material respect that affects the interests of Novation, VHA, UHC, HPPI or the
Members or terminate said insurance except after thirty (30) days’ prior
written notice to Novation. In addition, Service Provider shall provide
Novation with at least thirty (30) days prior written notice of any material
cancellation or material modification of such insurance by the insurance
company.

14. INDEMNITY

14.1 Service Provider Indemnity. Subject to Section 14.4, Service Provider 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 arising from the claim of any Person who is not a Party arising as a
result of or from (i) the failure of Service Provider to perform any of its
obligations under any agreement between Service Provider and a third party
(including, without limitation, any agreements between Service Provider and
a Supplier); (ii) any claims arising out of Service Provider’s breach of this
Agreement; (iii) 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 gross
negligence or willful misconduct of Service Provider or its Affiliates; (iv) the
loss of or damage to the real or tangible personal property (whether owned
or leased) of any of Novation, VHA, UHC and HPPI and any of their Affiliates,
officers, directors, employees, consultants and agents to the extent caused
by the gross negligence or willful misconduct of Service Provider or its
Affiliates; (v) Service Provider’s failure to pay and discharge any taxes
(including

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interest and penalties) for which Service Provider is responsible pursuant to
the terms of this Agreement; and (vi) any claim asserted against any of
Novation, VHA, UHC and HPPI and any of their Affiliates by an employee of
Service Provider to the extent such claim arises from decisions, acts,
omissions or violations of statute by Service Provider with respect to such
employee’s employee/employer relationship with Service Provider.

14.2 Novation Indemnity. Subject to Section 14.4, Novation shall indemnify,


defend and hold harmless each of Service Provider and its Affiliates, officers,
directors, employees, consultants and agents from and against any and all
Losses awarded against or paid in settlement by Service Provider incurred or
sustained by any of such persons arising from the claim of any Person who is
not a Party arising as a result of or from (i) the failure of Novation to perform
any of its obligations under any agreement between Novation and a third
party; (ii) any claims arising out of Novation’s breach of this Agreement; (iii)
any claim arising out of the death of or bodily injury to any employee of
Service Provider or its Affiliates (or their respective subcontractors) to the
extent caused by the gross negligence or willful misconduct of Novation or
its Affiliates; (iv) the loss of or damage to the real or tangible personal
property (whether owned or leased) of Service Provider and its Affiliates,
officers, directors, employees, consultants and agents to the extent caused
by the gross negligence or willful misconduct of Novation or its Affiliates; (v)
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; and (vi) any claim asserted against Service Provider 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.

14.3 Infringement Claims.

14.3.1 Indemnity. Each of Service Provider and Novation, VHA, UHC and
HPPI, 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 the claim
of any Person who is not a Party relating to any Services, software,
hardware or the indemnitor’s Materials (“Item(s)”) provided or
delivered by the indemnitor to the indemnitee under this Agreement
that, when used in conformity with all applicable written instructions
and documentation, (i) infringes any United States patent or United
States copyright, or infringes or otherwise violates any trademark
rights under the laws of the United States or any state thereof, or (iii)
constitutes misappropriation of any trade secret that is enforceable in
the United States (each such third-party claim, action, suit or
proceeding, an “Infringement Claim”).

14.3.2 Indemnity Exclusions. Notwithstanding anything to the contrary


herein, the indemnitor shall have no obligation to defend or
indemnify the

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indemnitee for any Infringement Claim to the extent arising out of or
relating to (i) modifications to any Item made by or on behalf of the
indemnitee where but for such modifications there would have been
no Infringement Claim, (ii) any Intellectual Property that is embodied
or otherwise included in [*****] as of the Effective Date, (iii) any use
of any Service Provider Intellectual Property not in accordance with
this Agreement, (iv) any use of the GHX Exchange in combination
with other products, equipment, software, or data not supplied by
Service Provider if the GHX Exchange can still be used and
infringement can be avoided by not using such other product,
equipment, software or data, or (v) any use of any release of the GHX
Exchange Software or Client Software other than the most current
release made available to the Parties and their Members. With
respect to Third Party Technology, only the indemnity, if any, given by
the developer or manufacturer thereof will apply, and Service
Provider shall not be obligated to provide any indemnity hereunder
for any third party claim to the extent based on such Third Party
Technology.

14.3.3 Injunction or Prohibition. If the indemnitee’s use of any Item is


enjoined or otherwise prohibited, or if the indemnitor reasonably
believes that there exists a threat of the same, the indemnitor shall
have the right, in its sole discretion and at its expense, in addition to
its indemnification obligations above, to (i) obtain for the indemnitee
the right to continue to use the affected Item, or (ii) replace or modify
the affected Item so that it becomes non-infringing and remains
functionally equivalent.

14.4 Indemnity Procedures. Promptly after receipt by an indemnified party of a


notice of any third party claim or the commencement of any action, such
indemnified party must (a) notify the indemnifying party in writing of any
such claim; (b) provide the indemnifying party with reasonable assistance to
settle or defend such claim at the indemnifying party’s own expense; and (c)
grant to the indemnifying party the right to control the defense and/or
settlement of such claim, at the indemnifying party’s own expense;
provided, however, that (i) the failure to so notify, provide assistance or
grant authority and control will only relieve the indemnifying party of its
obligation to the indemnified party to the extent that the indemnifying party
is prejudiced thereby; (ii) the indemnifying party will not, without the
indemnified party’s consent (such consent not to be unreasonably withheld
or delayed), agree to any settlement which: (x) makes any admission on
behalf of the indemnified party; or (y) consents to an injunction against the
indemnified party (except an injunction relating solely to the indemnified
party’s continued use of any infringing Intellectual Property); and (iii) the
indemnified party will have the right, at its expense, to participate in any
legal proceeding to contest and defend a claim and to be represented by
legal counsel of its choosing, but will have no right to settle a claim without
the indemnifying party’s written

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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consent, such consent not to be unreasonably withheld or delayed, and (iv)
in the event the indemnifying party elects not to assume the control granted
pursuant to clause (c) above, the indemnified party will have the right,
notwithstanding anything in the preceding clause (iii) to the contrary, to
control the defense and/or settlement of such claim, at the indemnifying
party’s expense. The indemnifying party shall not be required to indemnify
the indemnified party for the cost of the arbitrators’ fees, the allocation of
which is set forth in Section 17.

14.5 Exclusive Remedy. NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS


AGREEMENT TO THE CONTRARY, SECTIONS 14.1, 14.2 AND 14.3 SET FORTH
THE SOLE AND EXCLUSIVE REMEDY OF THE INDEMNITEES, AND THE ENTIRE
OBLIGATION AND LIABILITY OF THE INDEMNITORS, FOR ANY CLAIMS BY ANY
PERSON WHO IS NOT A PARTY TO THIS AGREEMENT.

15. LIMITATION OF LIABILITY

EXCEPT FOR EACH PARTY’S OBLIGATIONS UNDER SECTIONS 10 (CONFIDENTIALITY)


AND 14 (INDEMNIFICATION) OF THIS AGREEMENT AND EXCEPT FOR PAYMENT OF
FEES, NO PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND (INCLUDING
DEATH OR BODILY INJURY), WHETHER BASED ON CONTRACT, INDEMNITY,
WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR
ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM
THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT,
OR FROM ANY SERVICES COVERED BY OR FURNISHED UNDER THIS AGREEMENT,
WILL IN ANY CASE EXCEED THE EQUIVALENT OF THE SUM OF THE AMOUNTS PAID TO
SERVICE PROVIDER BY NOVATION PURSUANT HERETO DURING THE [*****] ENDING
IMMEDIATELY PRIOR TO THE CLAIM. EXCEPT FOR EACH PARTY’S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 14 OF THIS AGREEMENT OR AMOUNTS PAYABLE
PURSUANT TO EXHIBIT C, NO PARTY WILL BE LIABLE FOR ANY LOSS OF BUSINESS,
USE OR DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR
OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES
OF ANY KIND, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR OF
ANY LIMITED REMEDY. NO PARTY WILL APPLY FOR, SEEK OR OTHERWISE REQUEST
FROM ANY COURT, RELIEF OR REMEDY IN THE FORM OF EXEMPLARY OR PUNITIVE
DAMAGES.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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16. AUDIT RIGHTS

16.1 General. Subject to the following provisions of this Section 16, upon
reasonable prior written notice from Novation, Service Provider shall provide
to such third-party auditors as Novation may designate in writing, access
during normal business hours to Service Provider’s applicable facilities and
to appropriate Service Provider management personnel and subcontractors,
and to applicable data and records maintained by Service Provider with
respect to the Services for the purpose of confirming Service Provider’s
compliance with this Agreement. To the extent applicable to the Services
performed by Service Provider, the scope of such audits may include,
without limitation, (i) Service Provider’s practices and procedures, (ii) Service
Provider’s computer systems, (iii) the adequacy of general controls and
security practices and procedures, (iv) the adequacy of disaster recovery and
back-up procedures, (v) any matter necessary to enable Novation to meet
applicable legal or regulatory requirements, (vi) Service Provider’s
compliance with Service Levels and (vii) billing data and records relating to
the Services. Any such audit shall be conducted in a manner so as to
minimize any disruption to Service Provider’s business. Subject to Section
16.6, such audits shall be conducted at the expense of Novation.

16.2 Frequency of Audits. Novation shall not have the right to conduct more than
one audit in any 12-month period.

16.3 Auditors. The auditor conducting such audit shall be subject to the approval
of all the Parties, such approval not to be unreasonably withheld or delayed,
and shall be bound by written confidentiality provisions at least as restrictive
as those contained in this Agreement.

16.4 Record Retention. In order to document the Services and the fees and
expenses paid or payable by Novation under this Agreement, Service
Provider shall retain its standard records and supporting documentation for
the greater of (i) five (5) years or (ii) the period required by applicable law or
(iii) the period under which a claim could be asserted under applicable law
with respect to the transaction to which the records relate.

16.5 Cooperation. Service Provider shall use commercially reasonable efforts to


assist such auditors in connection with such audits.

16.6 Overcharges and Undercharges. If, as a result of any such audit, the auditor
determines that Service Provider has overcharged or undercharged Novation,
Novation, VHA, UHC or HPPI shall notify Service Provider of the amount of
such overcharge or undercharge and Service Provider or Novation, as
applicable, shall promptly pay to the other the amount of the overcharge or
undercharge, plus interest at a rate of 1% per month or the maximum rate
permitted by law, whichever is less, calculated from the date of receipt by
Service Provider of the overcharged or undercharged amount until the date
of payment. If any such audit reveals an overcharge to Novation during any
12-month period exceeding seven

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percent (7%) of Novation’s aggregate fees hereunder for such period, Service
Provider shall reimburse Novation for the reasonable out-of-pocket costs and
expenses incurred for such audit.

16.7 Audit Reports. Service Provider and Novation shall meet to review each audit
report promptly after the issuance thereof and to mutually agree upon the
appropriate manner, if any, in which to respond to the changes suggested by
the audit report.

17. DISPUTE RESOLUTION

Except as provided in Section 8.9, all disputes arising out of or in connection with
the execution, interpretation, performance or nonperformance of this Agreement
will be resolved in accordance with the procedures set forth in Article VIII of the GHX
Formation Agreement, mutatis mutandis.

18. GENERAL PROVISIONS

18.1 No Waiver. The delay or omission by any Party to exercise or enforce any
right or power of any provision of this Agreement shall not be construed as a
waiver or relinquishment to any extent of such Party’s right to assert or rely
upon any such provision or right in that or any other instance. A waiver by
any Party of any of the covenants to be performed by any other or any
breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant herein contained.

18.2 Entire Agreement. This Agreement and the Exhibits attached hereto, and the
GHX Formation Agreement, the GHX LLC Agreement, and the Merger
Agreement to the extent specifically referred to in this Agreement, together
constitute the complete and exclusive agreement between the Parties, and
supersede any and all prior agreements of the Parties with respect to the
subject matter hereof. This Agreement and the Exhibits attached hereto may
be amended or modified, or any rights under it waived, only by a written
document executed by all of the Parties.

18.3 Publicity. Except as required by law or provided in this Agreement, no Party


will make any public statement, press release or other announcement
relating to the terms of or existence of this Agreement without the prior
written approval of all other Parties. In addition, the Service Provider shall
not make any public statement, press release or other announcement (i)
relating to the Services that uses the name of a Member without such
Member’s prior written approval and, except in the case of Participating
Members subject to Member-Based Pricing, the approval of the Alliance to
which such Member belongs; or (ii) regarding the Deliverables without the
approval of Novation, UHC, VHA or HPPI, as the case may be. The Parties will
cooperate prior to the filing of any public document which may require the
filing of this Agreement as an exhibit or the filing of a

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description thereof in order to preserve the confidentiality and proprietary
information contained herein.

18.4 Assignment; Successors and Assigns. This Agreement will be binding on the
Parties and their respective successors and permitted assigns. No Party may,
or will have the power to, assign this Agreement without the prior written
consent of all other Parties. Notwithstanding the foregoing, no assignment
made in respect of or as a result of any dissolution of Novation will be
deemed an assignment for which prior consent is required, and such
assignment will be valid (it being understood that this provision does not
supersede the Parties’ rights and obligations under Section 8.3.2).
Notwithstanding the foregoing, nothing shall restrict Service Provider from
performing any of its obligations hereunder and/or in connection with
services provided to Participating Members through any of its wholly-owned
subsidiaries, or through subcontractors in accordance with Section 12 above,
provided that Service Provider remains liable for all performance hereunder.

18.5 Governing Law. This Agreement will be governed by and construed in


accordance with the laws of the State of Illinois, without regard to or
application of conflicts of law rules or principles.

18.6 Notices. Any notice required or permitted by this Agreement shall be in


writing and shall be deemed given if sent by prepaid registered or certified
United States mail, return receipt requested, or overnight mail with a
nationally recognized overnight mail courier, or by personal delivery,
addressed to another Party at the address shown below or at such other
address for which such Party gives notice hereunder. Notices will be deemed
given five business days after deposit in the United States Mail, two business
days after deposit with an overnight mail courier, or if by personal delivery,
when received, as applicable:

If to Novation:
Novation, LLC
125 East John Carpenter Freeway
Irving, Texas 75062
Attn: General Counsel

If to VHA: With a copy to:


VHA, Inc. Skadden, Arps, Slate, Meagher & Flom
220 East Las Colinas Boulevard LLP
Irving, Texas 75039-5500 Four Times Square
Attn: Chief Financial Officer New York, New York 10036-6522
Attn: Nancy A. Lieberman, Esq.

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If to UHC: With a copy to:
University HealthSystem Consortium McDermott Will & Emery LLP
2001 Spring Road, Suite 700 227 West Monroe Street
Oak Brook, Illinois 60523 Chicago, Illinois 60606
Attn: General Counsel Attn: Dean A. Kant, Esq.

If to Service Provider: With a copy to:


Global Healthcare Exchange, LLC Sidley Austin Brown & Wood LLP
11000 Westmoor Circle, Suite 400 One South Dearborn Street
Westminster, CO 80021 Chicago, Illinois 60603
Attn: Chief Executive Officer Attn: Jeffrey S. Rothstein, Esq.

18.7 No Agency. Except as otherwise expressly provided herein, the Parties are
independent contractors and will have no power or authority to assume or
create any obligation or responsibility on behalf of each other. This
Agreement will not be construed to create or imply any partnership, agency
(except as expressly provided herein) or joint venture.

18.8 Force Majeure.

18.8.1 Performance Excused. Subject to 18.8.2, no Party shall be liable for


any default or delay in the performance of its obligations under this
Agreement if and to the extent such default or delay is caused,
directly or indirectly, by: flood, earthquake, elements of nature or acts
of God, riots, civil disorders, terrorism, rebellions or revolutions in
any country, or any other cause beyond the reasonable control of
such Party, provided that (i) the non-performing Party has taken
reasonable measures to prevent such default or delay and (ii) such
default or delay cannot reasonably be circumvented by the non-
performing Party through the use of alternate sources, workaround
plans or other means (including with respect to Service Provider, by
Service Provider executing its disaster recovery plans).

18.8.2 Period of Excused Performance. In such event, the non-performing


Party shall be excused from further performance or observance of the
obligation(s) so affected for as long as such circumstances prevail
and such Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever
extent possible without delay. With respect to Service Provider’s
performance, such efforts shall be no less than the efforts used for
any other customer of Service Provider. Any Party so delayed in its
performance shall immediately notify the Party to whom
performance is due by telephone (to be confirmed in writing within
two days after the inception of such delay) and describe at a
reasonable level of detail the circumstances causing such delay.

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18.8.3 Critical Functions. Notwithstanding anything in this Section 18.8 to
the contrary, upon the occurrence of an event described in Section
18.8.1 that substantially prevents, hinders or delays performance of
services necessary for the performance of “critical functions” of such
Party for more than seven (7) consecutive days, such Party to whom
such affected or delayed performance is due will have the right to
immediately terminate this Agreement. For the purposes of this
Section 18.8.3, “critical functions” means with respect to a Party,
those business functions that are essential and critical to its business
operations or the business operations of its Members.

18.9 Severability. If for any reason a court of competent jurisdiction finds any
provision or portion of this Agreement to be unenforceable, that provision of
the Agreement will be enforced to the maximum extent permissible so as to
effect the intent of the Parties, and the remainder of this Agreement will
continue in full force and effect.

18.10 Counterparts. This Agreement may be executed in counterparts, each of


which will be deemed an original, but all of which, together, will constitute
one and the same instrument.

18.11 Headings. Section headings are included for only convenient reference and
do not describe the sections to which they relate.

18.12 Section 365(n) Matters. Service Provider acknowledges that if Service


Provider as a debtor-in-possession or a trustee in bankruptcy in a case under
the U.S. Bankruptcy Code rejects this Agreement or any agreement
supplementary hereto or thereto, Novation may elect to retain its rights
under this Agreement or any agreement supplementary hereto, as and to the
extent provided in Section 365(n) of the U.S. Bankruptcy Code. Upon the
written request of Novation to Service Provider or the bankruptcy trustee,
Service Provider or such bankruptcy trustee, as provided in Section 365(n) of
the U.S. Bankruptcy Code, (i) shall provide to Novation the Intellectual
Property for the Services as described in this Agreement, including all third-
party software and all Service Provider-owned software, and (ii) shall not
interfere with the rights of Novation as provided in this Agreement or any
agreement supplementary hereto, including or any escrow agreement that
may be entered, to obtain such Intellectual Property from the bankruptcy
trustee.

18.13 Additional Members. In the event of a merger, consolidation, sale of assets


or other acquisition transaction between Novation, VHA or UHC and any
other GPO, the Parties shall amend this Agreement to adjust Service Fees or
implement Member-Based Pricing for such new Members, at the election of
the affected Alliance, consistent with Section 2.2.3.

18.14 Termination of Neoforma Outsourcing Agreement. Immediately after the


Effective Time, the Parties shall execute (or cause their respective Affiliates,
as

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applicable, to execute), and deliver to each of the other Parties, the letter
agreement attached hereto as Exhibit P and made a part hereof.

19. [*****] OF [*****]

19.1 [*****] and [*****] [*****]. [*****] and [*****] agree, [*****] [*****] [*****]
[*****], that they will [*****] [*****] for the [*****] and [*****] of [*****]
under this Agreement, as follows:

(i) to the extent that any such [*****] or [*****] [*****] [*****] to any
[*****] or [*****] by [*****] or any [*****], [*****] shall [*****]
[*****];

(ii) to the extent that any such [*****] or [*****] [*****] [*****] to any
[*****] or [*****] by [*****] or a [*****], [*****] shall [*****] [*****];
and

(iii) to the extent that the [*****] set forth in (i) and (ii) are not applicable,
[*****] and [*****] shall [*****] [*****] in accordance with a [*****]
[*****] between [*****] and [*****].

19.2 [*****] and [*****] [*****]. Each of [*****] and [*****] hereby [*****] the
following with regard to its [*****] [*****] under this Section 19:

(i) any [*****] to [*****] [*****] to [*****] any other [*****] in [*****]’s
[*****] whatsoever, other than [*****] [*****] [*****] [*****] [*****]
or [*****] with respect to a [*****] described in Section 19.1(i) and
(ii);

(ii) any [*****] [*****] from the [*****], [*****] or [*****] of any [*****]
of [*****], [*****] or [*****] of [*****] or [*****] [*****], or [*****]
one another;

(iii) any [*****] of [*****], [*****] or [*****] of the [*****]'s [*****]


hereunder based upon a [*****] of or [*****] [*****] under the [*****]
or [*****]'s [*****] for any [*****] of its [*****] under this Agreement
based on [*****] for the [*****] of [*****] generally;

(iv) any [*****] to be [*****] by [*****] of the [*****] or other [*****] of


[*****] or of [*****] or [*****] or any [*****] therein or any other
circumstances bearing upon the [*****] of [*****] by [*****]; and

(v) any [*****] of [*****] or [*****] based on [*****] of this Agreement in


accordance with its terms.

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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Each of [*****]( and [*****] agrees that its [*****], as set forth in Section 19.1, constitutes a
[*****] of [*****] when [*****] and not [*****] [*****].

19.3 [*****] of [*****]. Neither [*****]'s nor [*****]'s [*****] and [*****] under
this Agreement shall be [*****] to any [*****], [*****], [*****], [*****] or
[*****] for any reason, including, without limitation, [*****], and shall not be
[*****] to any [*****] or [*****] whatsoever by reason of the [*****],[*****]
or [*****] of any of its [*****] and [*****] under this Agreement; excluding,
however, any [*****] based upon [*****]’s [*****] to [*****] any of its
[*****] under this Agreement.

[Remainder of page intentionally left blank.]

_________________________
Confidential materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omission.

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.

GLOBAL HEALTHCARE EXCHANGE, LLC NOVATION, LLC

By:________________________________
By:_________________________________
Name:
Name:
Title:
Title:
Date:
Date:

VHA INC. UNIVERSITY HEALTHSYSTEM


CONSORTIUM

By:______________________________ By:________________________________

Name: Name:

Title: Title:

Date: Date:

HEALTHCARE PURCHASING PARTNERS


INTERNATIONAL, LLC

By:_______________________________

Name:

Title:

Date:

[SIGNATURE PAGE TO
OUTSOURCING AGREEMENT]

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Exhibit A: Migration Plan

Attached

-59-
Exhibit B: Scope of Services

Attached.

-60-
Exhibit C: Service Levels, Metrics and Performance Credits

Attached.

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Exhibit D: Member-Facing Plan

Attached.

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Exhibit E: Form of Member Agreement

Attached.

-63-
Exhibit F: Reports and Metrics

Attached.

-64-
Exhibit G: Registration and Password Issuance and Protection Procedures

Attached.

-65-
Exhibit H: Intentionally Omitted

-66-
Exhibit I: Novation’s Trademark Usage Guidelines

Attached.

-67-
Exhibit J: Service Provider’s Trademark Usage Guidelines

Attached.

-68-
Exhibit K: VHA’s, UHC’s and HPPI’s Trademark Usage Guidelines

Attached.

-69-
Exhibit L: Intentionally Omitted

-70-
Exhibit M: Pre-Existing Agreements

-71-
Exhibit N: Exceptions to Section 11.1.4

Attached.

-72-
Exhibit O: Guiding Principles

-73-
Exhibit P: Letter Agreement

Attached.

-74-

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