PRODUCTS PROVIDED THAT THE ASSIGNEE AGREES TO
BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALSO PROVIDED
THAT THE ENTITY IS NOT A PACIFICARE COMPETITOR.
12.7.
FORCE MAJEURE.
NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY DELAY OR FAILURE TO PERFORM DUE TO CAUSES BEYOND ITS REASONABLE
CONTROL; PROVIDED THE NON-PERFORMING PARTY IS WITHOUT FAULT IN CAUSING SUCH
DEFAULT OR DELAY, AND SUCH DEFAULT OR DELAY COULD NOT HAVE BEEN PREVENTED BY
REASONABLE PRECAUTIONS AND CAN NOT REASONABLY BE CIRCUMVENTED BY THE
NON-PERFORMING PARTY THROUGH THE USE OF ALTERNATE SOURCES, WORKAROUND PLANS OR
OTHER MEANS.
IN SUCH EVENT PERFORMANCE TIMES SHALL BE CONSIDERED EXTENDED FOR A
PERIOD OF TIME EQUIVALENT TO THE TIME LOST BECAUSE OF ANY SUCH DELAY AS LONG THE
NON-PERFORMING PARTY CONTINUES TO USE ITS BEST EFFORTS TO RECOMMENCE PERFORMANCE
OR OBSERVANCE WHENEVER AND TO WHATEVER EXTENT POSSIBLE WITHOUT DELAY.
12.8.
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY THE
LAWS OF CALIFORNIA WITHOUT REGARD FOR ITS CHOICE OF LAW PROVISIONS.
12.9.
NOTICE.
ALL NOTICES MUST BE IN WRITING TO THE ADDRESS
SHOWN ON PAGE 1 OF THIS AGREEMENT AND WILL BE EFFECTIVE ON THE DATE RECEIVED.
12.10.
ESCROW.
MEDECISION, CUSTOMER AND DSI TECHNOLOGY ESCROW
SERVICES ARE PARTIES TO THAT CERTAIN PREFERRED ESCROW AGREEMENT EFFECTIVE AS OF
APRIL 4, 2000 (THE "ESCROW AGREEMENT"), A COPY OF WHICH IS ATTACHED AS EXHIBIT
D.
WITHIN NINETY (90) DAYS OF THE EFFECTIVE DATE, THE PARTIES AGREE TO ENTER
INTO AN AMENDMENT OF SUCH ESCROW AGREEMENT, SUBSTANTIALLY IN THE FORM ATTACHED
HERETO IN EXHIBIT D.
12.11.
[***].
[***]
12.12.
[***].
[***]
13.
DEFINITIONS.
13.1.
AFFILIATE SHALL MEAN CORPORATIONS, PARTNERSHIPS OR
OTHER ENTITIES THAT DIRECTLY OR
*** CONFIDENTIAL MATERIAL WHICH HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
9
INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROL, ARE CONTROLLED BY, OR
ARE UNDER COMMON CONTROL WITH CUSTOMER AS OF THE EFFECTIVE DATE AND INCLUDES ANY
OTHER ENTITY THAT, AFTER THE EFFECTIVE DATE, DIRECTLY OR INDIRECTLY THROUGH ONE
OR MORE INTERMEDIARIES, CONTROL, ARE CONTROLLED BY, OR ARE UNDER COMMON CONTROL
WITH CUSTOMER, PROVIDED THAT S (I) CUSTOMER IS LIABLE FOR ALL ACTS AND OMISSIONS
OF SUCH ENTITIES THAT WOULD CONSTITUTE A BREACH OF THIS AGREEMENT IF SUCH ACTS
OR OMISSIONS HAD BEEN PERFORMED BY CUSTOMER, AND (II) THAT NO SUCH ENTITY IS A
MEDECISION COMPETITOR.
THE TERM "CONTROL" (INCLUDING, WITH ITS CORRELATIVE
MEANINGS, "CONTROLLED BY" AND "UNDER COMMON CONTROL WITH") MEANS POSSESSION,
DIRECTLY OR INDIRECTLY, OF POWER TO DIRECT OR CAUSE THE DIRECTION OF MANAGEMENT
OR POLICIES (WHETHER THROUGH OWNERSHIP OF SECURITIES OR PARTNERSHIP OR OTHER
OWNERSHIP INTEREST, BY CONTRACT OR OTHERWISE).
AFFILIATES AS OF THE EFFECTIVE
DATE ARE LISTED IN APPENDIX B (THE "CURRENT AFFILIATES").
13.2.
CLAIM MEANS ANY CLAIM, LEGAL OR EQUITABLE CAUSE OF
ACTION, SUIT, LITIGATION, PROCEEDING (INCLUDING A REGULATORY OR ADMINISTRATIVE
PROCEEDING), GRIEVANCE, COMPLAINT, DEMAND, CHARGE, INVESTIGATION, AUDIT,
ARBITRATION, MEDIATION OR OTHER PROCESS FOR SETTLING DISPUTES OR DISAGREEMENTS,
INCLUDING, WITHOUT LIMITATION, ANY OF THE FOREGOING PROCESSES OR