In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.

Example Input: ENDORSEMENT AGREEMENT

    THIS ENDORSEMENT AGREEMENT is made and entered into effective this day of ___________________, 19__,  by and between SPORT-HALEY, INC.,  a Colorado corporation (the Company), and _________________ (hereinafter referred to as the Professional).

    WHEREAS, the Professional is an active, exempt and full-time touring professional on the Professional Golfer's Association Tour (the PGA Tour); and/or (the Senior PGA Tour) and

    WHEREAS, the company is in the business of designing and marketing quality men's and women's golf and active sportswear under the Haley label and desires to obtain the services of the Professional in endorsing, promoting and publicizing the Company and Haley apparel;

    NOW, THEREFORE, in consideration of the agreements of the parties set forth below, and in consideration of the Company's agreement to make the payments below described to the Professional the parties hereto agree as follows:

    1.   SERVICES OF THE PROFESSIONAL.  The Professional agrees to perform the          following services during the term of this Agreement:

              a.  The Professional agrees that, with respect to men's apparel,          he will exclusively endorse and use exclusively in play, practice,           exhibits, clinics and other events open to the media or public, Haley           brand apparel which shall consist of shirts, vests, jackets, sweaters,          pants and shorts (if permitted by applicable rules).

              b.  The Professional grants to the Company the exclusive worldwide          right and license to use his name, autograph, likeness, photographs,          electronic media depiction, signature and any other words, symbols or          depiction's which would identify the Professional to the public in           connection with the advertising, promotion, publicizing, sale and           distribution of Haley apparel by the Company.

              c.  Upon reasonable written request of the Company which shall be          tendered at least 30 days prior the date requested, the Professional           shall make himself available for the purpose of posing for print ads,          making commercials and other promotional materials, or attending           promotional events organized by the Company once per calendar year.  In          the event of such requests by the Company, the company shall be           responsible for the payment of all reasonable travel, lodging and           meal expenses incurred in connection with the Professional rendering          services described in this subsection. Should the services of the          Professional be required for longer than one day, the Professional           shall be entitled to his daily appearance fee, plus reasonable           expenses, for each day in excess of one day.

              d.  The Professional shall have the opportunity to select from           the Company's semi-annual golf sportswear collections for the purposes          of obtaining a wardrobe of Haley apparel suitable to the Professional           at the Company's expense. The Company shall have the right to place on          the left chest and right sleeve of any jackets, shirts, vests, or           sweaters and above the back pocket of any pants selected by the           Professional the Company's logo and name in use by the Company at that          time.

   2.    RIGHTS OF USAGE.  As described in Section 1(b) above, the Professional          has granted the company an exclusive worldwide right and license          to use his name, autograph, likeness, photographs, electronic media          depiction, signature and any other words, symbols or depiction's          (hereinafter the Professional's Image) which will identify the          Professional to the public in connection with the advertising,           promotion, publicizing, sale and distribution of Haley apparel.  The          Company shall have unlimited rights of utilization of the           Professional's Image in all advertising, promotion, publicity and           other forms of communication with any part during the term of this           Agreement, it being the intent of the Professional that the Company's          utilization of the Professional's Image shall be at the discretion of          the Company.  The right of usage described herein shall be subject to          the requirement that the Company shall not place the Professional's           Image in an unfavorable light.  The Professional or the Professional's          designated agent shall have the right to review any advertising,            promotion or publicity materials utilized by the company which            contain the Professional's Image on reasonable written or oral           request to the Company during the term of this Agreement.

    3.   COMPENSATION OF THE PROFESSIONAL.  In consideration of the rights          granted to the Company and the services to be provided by the           Professional, the Professional shall receive the following           compensation:

    4.   PAYMENTS. All payments to be made to the Professional pursuant to the          terms of this Agreement shall be made to the Professional and           delivered to ________________________________________________________           _____________________________________________________________________





         _____________________________________________________________________

         or at such other address as shall be designated in writing by          Professional.

    5.   RETENTION OF ENDORSEMENT RIGHTS. Except with respect to endorsement          rights granted to the Company for the apparel described herein, the          Professional shall retain all rights in and to the professional's name          and endorsement and the Professional shall not be prevented from           using, permitting or licensing others to  use the Professional name or          endorsement in connection with the advertising, promotion or sale of           any product other than golf apparel as described in Section 1 hereof.           The Professional represents and warrants that no agreement, contract           or understanding exists which would prevent or limit the performance           of any of his obligations under this Agreement.

    6.   TERM. The term of this Agreement shall extend from the date of          execution hereof through and until _______, unless extended by written          agreement of the parties. The parties shall use their best efforts to          reach agreement on the terms of any such extension. In the event the           Professional should for any reason become a non-exempt PGA Tour player,          the Company shall have the right to terminate this Agreement at its          discretion at any time during the initial term or any extension           thereof.  Additionally, if either part shall fail to observe or           perform any of the agreements or obligations undertaken by such party          hereunder, and such failure or default shall continue for a period of          30 days following notice from the non-defaulting party to the           defaulting party during which such failure or default shall not have           been cured by the defaulting party, then the non-defaulting party           shall have the right to terminate this Agreement following the           expiration of such 30-day notice period. The non-defaulting part          hereunder. Following the expiration of 90 days from the termination or          expiration of this Agreement, the Company shall cease usage of all           publicity, promotion and advertising materials which contain the          Professional's Image, it being the understanding of the parties that          during such 90-day period the Company shall have the right to use           such remaining publicity, promotion or advertising materials as shall          then be available to the Company.

    7.   NOTICE. All notices and communications required or permitted to be          given hereunder shall be in writing, signed by the sender, and           delivered by registered or certified mail to:

    If to the Company:       Robert G. Tomlinson, Chairman and CEO                              Sport-Haley, Inc.                              4600 East 48th Avenue                              Denver, CO 80216

    With a copy to:          Robert W. Walter, Esq.                              Berliner Zisser Walter & Gallegos, P. C.                              Suite 4700                              1700 Lincoln Street                              Denver, CO 80203

    If to the Professional:

    With a copy to:

    or such other address as shall have been furnished in writing by the     parties to each other.

    8.   ENTIRE AND SOLE AGREEMENT. This Agreement constitutes the entire          agreement between the parties and supersedes all statements, promises          and understandings, whether oral or written, with respect to subject          matter hereof.

    9.   SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the           Professional under any circumstances. The Company shall not be           entitled to assign this Agreement to any other party without the           Professional's express prior written consent, except any assignment           by the Company as a result of a stock exchange, merger, consolidation,          or sale of substantially all of the assets of the Company, in which           case not such consent shall be required.

    10.  SEVERABILITY. Should any one or more of the provisions of this           Agreement be determined to be illegal or unenforceable, all other          provisions of this Agreement shall be given effect separately from the          provision or provisions determined to be illegal or unenforceable.

    11.  GOVERNING LAW. This Agreement shall be construed and enforced in            accordance with, and governed by the laws of the State of Colorado           without regard to conflicts of laws principles.

    12.  COUNTERPARTS. This Agreement may be executed simultaneously in two or          more counterparts, each of which shall be an original, but all of which          together shall constitute one and the same Agreement. Facsimile           signatures shall be accepted by the parties hereto as original           signatures for all purposes.

    13.  HEADINGS. The headings in this Agreement are for purposes of           convenience and easy reference only and shall not limit or otherwise





         affect the meaning hereof.

    14.  DISPUTES. In the event of any dispute which arises between the parties          and which relates to the subject matter of this Agreement, the parties          acknowledge and agree that any such dispute shall be submitted for           binding arbitration in accordance with the arbitration procedures           established by the American arbitration Association in Denver,           Colorado.  If such association is not then in existence, an           independent association of arbitrators may be utilized  which is           designated by agreement of the parties. In the event the parties are           unable to agree on an independent association of arbitrators, either           party may apply to a court of competent jurisdiction for appointment          of arbitrators.

IN WITNESS WHEREOF, the Company and the Professional have executed this  Endorsement Agreement as of the day and year first above written.

                                       PROFESSIONAL:

                                       ----------------------------------------

                                       COMPANY:

                                       SPORT-HALEY, INC.

                                       By:                                           ------------------------------------- 
Question: Highlight the parts (if any) of this contract related to Post-Termination Services that should be reviewed by a lawyer. Details: Is a party subject to obligations after the termination or expiration of a contract, including any post-termination transition, payment, transfer of IP, wind-down, last-buy, or similar commitments?
Example Output: 7499

Example Input: Execution Version Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) would likely cause competitive harm to the Company, if publicly disclosed. Double asterisks denote omissions.   DEVELOPMENT AGREEMENT   This Development Agreement (this Agreement) is entered into and effective as of September 30, 2019 (Effective   Date) by and between Howmedica Osteonics Corp., a New Jersey corporation, also known as Stryker Orthopaedics   (Stryker), and Conformis, Inc., a Delaware corporation having a principal place of business located at 600 Technology Park   Drive, Billerica, MA 01821 (Conformis). Stryker and Conformis are collectively referred to herein as the Parties and   individually as a Party.   WHEREAS, the Parties are concurrently entering into an asset purchase agreement for Stryker's purchase of certain   Conformis assets concerning Patient-Specific Instrumentation (Asset Purchase Agreement), and a License Agreement, a   Distribution Agreement and a Quality Agreement, as defined in and attached to the Asset Purchase Agreement (collectively, such   agreements are referred to herein as the Other Agreements).   WHEREAS, Stryker and its Affiliates have developed and commercialized an Off-The-Shelf Knee Implant offered under   the trademark Triathlon.   WHEREAS, Conformis currently offers Patient-Specific Instrumentation for use with its Patient-Specific Implants,   including partial and total knee and hip arthroplasty.   WHEREAS, Stryker desires that Conformis develop, in accordance with the R&D Program, certain Patient-Specific   Instrumentation to be used with the current version of the Off-The-Shelf Knee Implant offered under the trademark Triathlon (such   Patient-Specific Instrumentation as so developed, the KIB Product).   THEREFORE, in consideration of the mutual representations, warranties and covenants herein and in the Other   Agreements constituting good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties   hereby agree as follows:   ARTICLE I   DEFINITIONS   1.1 Definitions. For purposes of this Agreement, the following terms shall have the following meanings, and to the extent   not defined in this section or otherwise in this Agreement, a term shall have the meaning ascribed to it in any of the Other   Agreements:   Source: CONFORMIS INC, 10-Q, 11/1/2019



Acceptance and Accept have the meaning set forth in Article 3.4 of this Agreement.   Acceptance Criteria has the meaning set forth in the R&D Work Plan.   Acceptance Notification Period has the meaning set forth in Article 3.3 of this Agreement.   Affiliate has the meaning set forth in the Asset Purchase Agreement.   Agents means Third Parties who are acting under the direction or control of a Party.   Applicable Laws means all applicable federal, state, local and foreign laws, ordinances, rules, regulations, orders,   writs, injunctions and decrees of any kind.   Asset Purchase Agreement has the meaning set forth in the recitals.   Change of Control has the meaning set forth in the Asset Purchase Agreement.   Claims has the meaning set forth in Article 7.3(a) of this Agreement.   Confidential Information has the meaning set forth in the Asset Purchase Agreement.   Conformis Background IP means any Invention, and all Intellectual Property rights underlying such Invention, that is,   as of the Effective Date, owned or licensable by Conformis without causing a breach of, or incurring any obligation to, a third   party, in each case to the extent necessary or reasonably useful to design, develop, manufacture, sell or otherwise exploit the KIB   Product, and for the avoidance of doubt, excluding the Purchased Assets, Conformis Foreground IP, Stryker Background IP,   Improved Stryker Background IP and Improved Conformis Background IP.   2   Source: CONFORMIS INC, 10-Q, 11/1/2019



Conformis Foreground IP means any Invention first developed by Conformis after the Closing Date other than in the   performance of the R&D Program, and all Intellectual Property rights underlying such Invention (for the avoidance of doubt,   excluding any Intellectual Property rights subsisting prior to the Closing Date or generated in the performance of the R&D   Program). For the avoidance of doubt, Conformis Foreground IP shall not include any Inventions using Stryker Confidential   Information (which shall not include the Purchased Assets for the purposes of the definition of Conformis Foreground IP) or   Stryker Background IP.   Conformis Indemnified Parties has the meaning set forth in Article 7.3(b) of this Agreement.   Conformis-Prosecuted Joint IP Rights has the meaning set forth in Article 5.8 of this Agreement.   Court has the meaning set forth in the Asset Purchase Agreement.   Deliverables has the meaning set forth under the R&D Work Plan.   Disclosing Party has the meaning set forth in the Asset Purchase Agreement.   Distribution Agreement has the meaning set forth in the Asset Purchase Agreement.   Equipment has the meaning set forth in Article 5.6(a) of this Agreement.   Failure Notice has the meaning set forth in Article 3.4 of this Agreement.   Finally Rejects has the meaning set forth in Article 3.4 of this Agreement.   Force Majeure Event has the meaning set forth in Article 10.4(a) of this Agreement.   3   Source: CONFORMIS INC, 10-Q, 11/1/2019



Improved Conformis Background IP means any Invention to the extent first arising in the performance of the R&D   Program, whether or not embodied in the KIB Product, that constitutes an improvement to Conformis Background IP, Conformis   Confidential Information (which shall not include any Confidential Information owned or commonly owned by Stryker) or the   Purchased Assets, and all Intellectual Property rights underlying such Invention (but expressly excluding all Transferred IP,   Conformis Foreground IP, Conformis Background IP and Stryker Background IP, and, for the avoidance of doubt, excluding all   Intellectual Property rights subsisting prior to the Closing Date).   Improved Stryker Background IP means any Invention to the extent first arising in the performance of the R&D   Program, whether or not embodied in the KIB Product, that constitutes an improvement to Stryker Background IP or any Stryker   Confidential Information (which shall not include the Purchased Assets for the purposes of this definition), and all Intellectual   Property rights underlying such Invention (but expressly excluding all Transferred IP, Conformis Foreground IP, Conformis   Background IP and Stryker Background IP, and, for the avoidance of doubt, excluding all Intellectual Property rights subsisting   prior to the Closing Date).   Insolvency Event means, with respect to any Party, the occurrence of any one of the following events:   (i) an involuntary proceeding is commenced against such Party under any applicable United States bankruptcy, insolvency,   reorganization or other similar United States or foreign law now or hereafter in effect, or a proceeding is commenced seeking   appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) for such Party or for all or   any substantial part of its property and such proceeding shall not be dismissed within [**] or an order for relief by a court of   competent jurisdiction shall be entered in any such proceeding; or   (ii) such Party shall commence a voluntary proceeding under any applicable United States or foreign bankruptcy, insolvency,   reorganization or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary   case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator,   4   Source: CONFORMIS INC, 10-Q, 11/1/2019



assignee, custodian, trustee, sequestrator (or other similar official) of such Party or of all or any substantial part of its property, or   shall make an assignment for the benefit of creditors.   Intellectual Property has the meaning set forth in the Asset Purchase Agreement.   Invention means any idea, invention, discovery, know-how, data, work of authorship, information, improvement,   technology, process, concept or material, whether or not patentable, copyrightable or protectable as a trade secret, and whether   or not reduced to practice or memorialized in writing.   Joint CI has the meaning set forth in the Asset Purchase Agreement.   Joint IP has the meaning set forth in Article 5.1(c) of this Agreement.   Joint IP Rights has the meaning set forth in Article 5.8 of this Agreement.   KIB Product has the meaning set forth in the recitals.   KIB Product IP means any Invention first arising in the performance of the R&D Program, whether or not embodied in   the KIB Product, and all Intellectual Property rights underlying such Invention (but expressly excluding all Transferred IP,   Conformis Background IP, Stryker Background IP, Improved Conformis Background IP and Improved Stryker Background IP,   and, for the avoidance of doubt, excluding all Intellectual Property rights subsisting prior to the Closing Date).   License Agreement has the meaning set forth in the Asset Purchase Agreement.   Off-The-Shelf Implant has the meaning set forth in the Asset Purchase Agreement.   5   Source: CONFORMIS INC, 10-Q, 11/1/2019



Off-The-Shelf Knee Implant has the meaning set forth in the Asset Purchase Agreement.   Other Agreements has the meaning set forth in the recitals.   Patents has the meaning set forth in the Asset Purchase Agreement.   Patient-Specific Implants has the meaning set forth in the Asset Purchase Agreement.   Patient-Specific Instrumentation has the meaning set forth in the Asset Purchase Agreement.   Person has the meaning set forth in the Asset Purchase Agreement.   Prior CDA has the meaning set forth in the Asset Purchase Agreement.   Purchased Assets has the meaning set forth in the Asset Purchase Agreement.   Receiving Party has the meaning set forth in the Asset Purchase Agreement.   Redelivery Period has the meaning set forth in Article 3.4 of this Agreement.   R&D Program means work performed in the development of the KIB Product under this Agreement pursuant to the   R&D Work Plan.   R&D Work Plan means the research and development plan set forth in Exhibit 1.   Relevant Indemnified Parties means (a) if Stryker is the indemnified Party, the Stryker Indemnified Parties and (b) if   Conformis is the indemnified Party, the Conformis Indemnified Parties.   6   Source: CONFORMIS INC, 10-Q, 11/1/2019



Representatives has the meaning set forth in the Asset Purchase Agreement.   Stryker Background IP means any Invention, and all Intellectual Property rights underlying such Invention, that is, as   of the Effective Date owned or licensable by Stryker without causing a breach of, or incurring any obligation to, a third party, in   each case to the extent each such Invention is (a) necessary or reasonably useful to design, develop, manufacture, sell and   otherwise exploit the KIB Product and (b) provided to Conformis by or on behalf of Stryker in connection with Conformis'   activities under this Agreement, and, for the avoidance of doubt, excluding the Transferred IP, Conformis Background IP,   Improved Conformis Background IP and Improved Stryker Background IP.   Stryker Indemnified Parties has the meaning set forth in Article 7.3(a) of this Agreement.   Stryker-Prosecuted Joint IP Rights has the meaning set forth in Article 5.8 of this Agreement.   Termination Notice means a written notice delivered by one Party to the other Party of its election to terminate this   Agreement pursuant to Article VIII.   Third Party has the meaning set forth in the Asset Purchase Agreement.   Trademarks has the meaning set forth in the Asset Purchase Agreement.   Transferred IP has the meaning set forth in the Asset Purchase Agreement.   Triathlon has the meaning set forth in the Asset Purchase Agreement.   Wire Instructions has the meaning set forth in the Asset Purchase Agreement.   7   Source: CONFORMIS INC, 10-Q, 11/1/2019



ARTICLE II   RESEARCH AND DEVELOPMENT PROGRAM   2.1 R&D Work Plan. The Parties agree to conduct the R&D Program pursuant to the R&D Work Plan and to perform   their respective obligations therein. To the extent Conformis' performance under the R&D Program is delayed due to Stryker's   delay in performing any of its obligations in accordance with the timelines in the R&D Work Plan, the applicable timelines shall be   deemed extended by a period of time corresponding to the length of such portion of the delay attributable to Stryker, on a day-by-   day basis. The R&D Work Plan may be amended by mutual written agreement of the Parties from time to time.   2.2 Agents or Third Parties. To the extent working with Agents or other Third Parties is permitted under the R&D Work   Plan, should a Party wish to engage an Agent or any other Third Party in connection with the R&D Work Plan or any other work   under this Agreement, such Party must obtain in advance a written agreement by such Agent or other Third Party (i) to assign to   the Party all Inventions conceived, created or generated by the Agent or other Third Party, and (ii) to maintain all Confidential   Information in confidence as set forth in Section 5.2.   ARTICLE III DELIVERABLES AND COMPLETION   3.1 Deliverables. Subject to the remedies set forth in Section 3.4, Conformis shall furnish Stryker with the Deliverables   as defined in the R&D Work Plan, and Stryker shall have the opportunity to analyze and test each Deliverable for the purposes of   determining Acceptance as set forth in the R&D Work Plan. Each Deliverable shall be deemed to be completed once such   Deliverable has been Accepted (as defined below).   3.2 Free from Infringement. Without the consent of Stryker, Conformis shall not introduce any structure or   methodology in the Deliverables (including a Deliverable within a Product or a Stryker Product) that (1) raise a colorable   argument of patent infringement in the manufacture, use, sale, offer for sale or importation of the Deliverable as such Deliverable   8   Source: CONFORMIS INC, 10-Q, 11/1/2019



is intended to be exploited under the Other Agreements, (2) misappropriate any Confidential Information of any Third Party, or   (3) otherwise violate any Intellectual Property rights of any Third Party. For clarity, disclosure of a matter on the Disclosure   Schedules to the Asset Purchase Agreement shall not be deemed consent by Stryker under this Section 3.2.   3.3 Completion. After a Deliverable has been furnished to Stryker, Stryker (or its Agent designee) will be entitled to   analyze and test the Deliverable to determine if it operates in accordance with and otherwise conforms to the applicable   Acceptance Criteria set forth in R&D Work Plan. Conformis shall provide such assistance as Stryker may reasonably request in   such determination. Stryker shall have [**] (Acceptance Notification Period) following the date the Deliverable is received by   Stryker to Accept or reject the Deliverable as described in Section 3.4.   3.4 Acceptance or Rejection. Respecting any Deliverable for Milestone #1 or Milestone #2, as set forth below, if   Stryker determines that a Deliverable operates in accordance with and otherwise conforms to the applicable Acceptance Criteria   pursuant to the R&D Work Plan, then Stryker will notify Conformis in writing that Stryker Accepts such Deliverable. If Stryker   reasonably determines that a Deliverable does not operate in accordance with or otherwise conform to the applicable Acceptance   Criteria, then Stryker will provide Conformis with a written notice of rejection within the Acceptance Notification Period   describing the defect in view of the relevant Acceptance Criteria and including sufficient detail with respect to such Stryker testing   and testing results as Conformis reasonably requests (Failure Notice). Conformis shall have [**] (or such longer period of time   as may be agreed between the parties in good faith should the scope and complexity of the applicable Deliverable warrant some   longer period of time) (Redelivery Period) following the date it receives the Failure Notice to correct and redeliver the   Deliverable. If Conformis timely delivers a corrected version of the Deliverable within the Redelivery Period, then Stryker will be   9   Source: CONFORMIS INC, 10-Q, 11/1/2019



entitled to repeat its acceptance analysis and testing process for the purposes of determining Acceptance as set forth in the R&D   Work Plan until such Deliverable operates in accordance with or otherwise conforms to the applicable Acceptance Criteria;   provided, however, that if Stryker properly rejects a particular Deliverable three (3) or more times in accordance with this Article   III, or if Conformis fails to deliver a version or corrected version, as the case may be, of the Deliverable within any respective [**]   period, Stryker may, terminate this Agreement in accordance with Section 8.2(c) (in the event of such three (3) rejections, Stryker   Finally Rejects the Deliverable). Such termination, together with the provisions of Section 5.2 of the License Agreement,   constitutes as Stryker's sole remedy and Conformis' exclusive liability in the event of any such rejection or failure by Conformis to   deliver materially conforming Deliverables hereunder so long as such rejection or failure does not arise from Conformis' fraud,   willful misconduct, gross negligence or bad faith. Stryker shall be deemed to have accepted a Deliverable timely furnished to it   unless (a) the Deliverable fails to operate in accordance with and otherwise conform the applicable Acceptance Criteria, and (b)   Stryker provides Conformis a written Failure Notice within the Acceptance Notification Period in accordance with this Section   3.4 (any acceptance or deemed acceptance, described in this Section 3.4, Acceptance or Accept). Acceptance of a   Deliverable shall not constitute a waiver of any rights Stryker may have based on Conformis' warranties set forth in this   Agreement.   3.5 Payment for Milestones. Stryker shall pay to Conformis the following milestone payments for the development   work to be conducted hereunder if and when the following milestones are met, as follows:   (a) Milestone #1 - Within thirty (30) days following the date on which Stryker receives the first prototype of the Patient-   Specific Instrumentation delivered to it by Conformis in accordance with the R&D Work Plan, Stryker shall pay to Conformis a   total of two million U.S. dollars ($2,000,000); and   10   Source: CONFORMIS INC, 10-Q, 11/1/2019



(b) Milestone #2 - Within thirty (30) days following the date on which there is a design freeze of the Patient-Specific   Instrumentation for the KIB Product in accordance with the R&D Work Plan, Stryker shall pay to Conformis a total of three   million U.S dollars ($3,000,000).   3.6 Payment. Stryker shall make all payments to Conformis required herein by wire transfer in accordance with the Wire   Instructions. Such payments are non-refundable and non-creditable except as set forth in the Other Agreements.   ARTICLE IV   RESTRICTIVE COVENANT   4.1 Exclusivity. Except as specifically provided in the Distribution Agreement, Conformis shall be prohibited from   developing or assisting another in developing, or causing another to develop, Patient-Specific Instrumentation for Off-The-Shelf   Knee Implants for any Third Party in the field of orthopedics until January 1, 2032 (or earlier, to the extent set forth in Section   2.3.3.4 or Section 2.3.5 of the Distribution Agreement), with the exception that Conformis (including any entity involved in a   Change of Control of Conformis, any such entity an Acquirer), may develop Patient-Specific Instrumentation for any Off-The-   Shelf Implants of Conformis, an Acquirer or any of their Affiliates. For purposes of clarity, the foregoing does not prevent   Conformis from granting any license, release, covenant not to sue or other immunity to any third party under any Patents, including   any such immunity that would authorize manufacture, use or sale of Patient-Specific Instrumentation for Off-The-Shelf Knee   Implants outside the Buyer Field.   ARTICLE V   INTELLECTUAL PROPERTY   5.1 Inventions.   (a) Inventorship of all Inventions developed by either Party, or both Parties, in the performance of the R&D Program, shall   be determined in accordance with the inventorship laws of the United States, even to the extent such Invention is not pursued in   patent applications.   (b) All right, title and interest in and to the Improved Stryker Background IP will vest solely in Stryker. Conformis agrees   to assign and hereby assigns to Stryker all right, title and interest in and to all Improved Stryker Background IP in which ownership   in same has vested in   11   Source: CONFORMIS INC, 10-Q, 11/1/2019



Conformis by operation of law or by assignment by its employees or consultants; and to facilitate such assignment to Stryker,   Conformis agrees (i) to regularly ensure that its employees and consultants timely make any appropriate assignments to it of that   which constitutes Improved Stryker Background IP, and (ii) at Stryker's reasonable request, to execute and have its employees   and consultants execute, as necessary, all assignments and any other documentation necessary to perfect title in Stryker of such   Improved Stryker Background IP.   (c) All right, title and interest in and to the Improved Conformis Background IP and KIB Product IP (Joint IP) shall be   owned jointly by the Parties. Subject to the limitations set forth in this Agreement, the Joint IP may be used freely by either Party or   its Affiliates and licensed to Third Parties by Conformis and its Affiliates, on the one hand, outside of the Buyer Field or by Stryker   and its Affiliates, on the other hand, within the Buyer Field, in each case, without the consent of, or duty to account to or notify, the   other Party, but, except with respect to external licenses of the Improved Conformis Background IP by Conformis or its Affiliates   to Third Parties, any external Third Party license shall be governed in accordance with the last sentence of Section 4.3(c) of the   APA. Each Party to whom ownership is to vest in Joint IP by operation of law or by assignment by its employees or Agents agrees   to assign and hereby assigns to the other Party an undivided one-half right, title and interest in and to all Joint IP; and to facilitate   such assignment, the Party possessing such ownership agrees (i) to regularly ensure that its employees and consultants timely make   any appropriate assignments to it; and (ii) at the other Party's reasonable request, to execute and have its employees and   consultants execute, as necessary, all assignments and any other documentation to perfect the undivided one-half right, title and   interest in and to the other Party of such Joint IP.   (d) Notwithstanding anything to the contrary, the foregoing does not constitute either (1) the grant by Conformis to Stryker   of any license or immunity of any kind with respect to the Conformis Background IP or Conformis Foreground IP, regardless of   the extent to which the Joint IP constitutes improvements to the Conformis Background IP or Conformis Foreground IP, (2) the   grant by Stryker to Conformis of any license or immunity of any kind with respect to the Stryker Background IP, or (3) the grant   by either Party of any license or immunity of any kind under any Intellectual Property rights owned by such Party, regardless of   whether the exploitation of the Joint IP would infringe such Intellectual Property rights. Neither Party shall assign a partial interest in   12   Source: CONFORMIS INC, 10-Q, 11/1/2019



the Joint IP or Joint IP Rights to any Affiliate or Third Party (i.e., neither Party shall create any additional joint owners of the Joint   IP), but each Party may assign all of its right, title and interest in and to the Joint IP and Joint IP Rights to an Affiliate or Third Party   pursuant to and in accordance with Section 10.2.   (e) Conformis shall promptly disclose to Stryker all (i) Improved Stryker Background IP, and (ii) Joint IP. Stryker shall   promptly disclose to Conformis all Joint IP.   (f) To the extent required and for the avoidance of doubt, Stryker hereby grants Conformis, and Conformis hereby   accepts, a non-exclusive license to the Stryker Background IP and Improved Stryker Background IP solely for purposes of   performing any obligations under this Agreement and the Distribution Agreement.   5.2 Confidential Information. The provisions of Sections 4.3(a)-(i) of Article 4 of the APA are incorporated herein as if   fully set forth herein.   5.3 Maintenance of Records. Each Party shall prepare and maintain complete and accurate records concerning all   Inventions for the purpose of documenting any possible Intellectual Property rights arising under this Agreement.   5.4 No Other Rights.   (a) Conformis acknowledges and agrees that, as between the Parties, Stryker owns all right, title and interest, including all   Intellectual Property rights, within the Stryker Background IP and Stryker's Confidential Information, including any Stryker   Confidential Information underlying the Joint IP, and that, under this Agreement, except as expressly set forth herein, Conformis   shall acquire no right, title, or interest in or to any of the foregoing, or any other Intellectual Property rights that are owned or   controlled by Stryker, by implication, estoppel or otherwise.   (b) Stryker acknowledges and agrees that, as between the Parties, Conformis owns all right, title and interest, including all   Intellectual Property rights, in and to Conformis Background IP and Conformis' Confidential Information, including any Conformis   Confidential Information underlying the Joint IP, and that, under this Agreement, Stryker shall acquire no right, title, or interest in or   to any of the foregoing or any other Intellectual Property rights that are owned or controlled by Conformis, by implication, estoppel   or otherwise.   5.5 Employees and Consultants.   13   Source: CONFORMIS INC, 10-Q, 11/1/2019



(a) Conformis shall ensure that all its employees, consultants, Agents or other Third Parties who perform any portion of   Conformis' R&D Program obligations under this Agreement have entered into written agreements with Conformis whereby such   employee, consultant, Agent or other Third Party assigns to Conformis all ownership rights in any Inventions made or developed   by such employee, consultant, Agent or Third Party in the course of such R&D Program work under this Agreement.   (b) Stryker shall ensure that all its Affiliates and its or their employees, consultants, Agents or other Third Parties who perform any   portion of Stryker's R&D Program obligations under this Agreement have entered into written agreements with Stryker whereby   such employee, consultant, Agent or Third Party assigns to Stryker all ownership rights in any Inventions made or developed by   such employee, consultant, Agent or Third Party in the course of such R&D Program work under this Agreement.   5.6 Tangible Property.   (a) All tooling, patterns, dies, gauges, jobs, fixtures, and all specifications, drawings, samples, designs, software, firmware,   programs, formulae, and other tangible items (Equipment) furnished by Stryker to Conformis in connection with this   Agreement: (i) shall only be used in the performance of the R&D Program; (ii) shall remain the property of Stryker; and (iii) shall   be disposed of or returned in good repair, normal wear and tear excepted, by Conformis to Stryker at Stryker's direction and   expense upon Stryker's request. Conformis assumes risk of loss and damage to said items while in its possession or under its   control, subject to normal wear and tear. Conformis shall notify Stryker promptly whenever any items of Stryker's tangible   property are in need of repair or replacement. Stryker shall endeavor to mark its property as property of Stryker for   14   Source: CONFORMIS INC, 10-Q, 11/1/2019



use only under this Agreement. Conformis waives any right it may have in law or equity to withhold Stryker's property.   (b) All Equipment furnished by Conformis to Stryker in connection with this Agreement: (i) shall only be used in the performance   of the R&D Program; (ii) shall remain the property of Conformis; and (iii) shall be disposed of or returned in good repair, normal   wear and tear excepted, by Stryker to Conformis at Conformis' direction and expense upon Conformis' request. Stryker assumes   risk of loss and damage to said items while in its possession or under its control, subject to normal wear and tear. Stryker shall   notify Conformis promptly whenever any items of Conformis' tangible property are in need of repair or replacement. Conformis   shall endeavor to mark its property as property of Conformis for use only under this Agreement. Stryker waives any right it may   have in law or equity to withhold Conformis' property.   5.7 Trademarks. Nothing in this Agreement shall confer to any Party any rights, whether by way of ownership, license or   right to use, in any of the Trademarks of any other Party. Conformis shall not use the Trademarks of Stryker without Stryker's   prior written consent and Stryker shall not use the Trademarks of Conformis without Conformis' prior written consent.   5.8 Prosecution of Patent Rights. Stryker shall be solely responsible, in its sole discretion, for preparing, filing,   prosecuting and maintaining Patents arising from all Improved Stryker Background IP. Stryker shall be solely responsible for costs   and expenses of preparing, filing, prosecuting and maintaining any such Patents. Stryker shall have the first right to prepare, file,   prosecute and maintain Patents or copyrights arising from any Joint IP that is not Improved Conformis Background IP (Stryker-   Prosecuted Joint IP Rights). Conformis shall have the first right to prepare, file, prosecute and maintain Patents or copyrights   arising from any Improved Conformis Background IP (Conformis-Prosecuted Joint IP Rights, and together with the Stryker-   Prosecuted Joint IP Rights, Joint IP Rights). With respect to Joint IP Rights, the non-prosecuting Party will have the right, but   not the obligation, to review and comment, and have the comments reasonably considered by the prosecuting Party, with regard to   the filing, prosecution,   15   Source: CONFORMIS INC, 10-Q, 11/1/2019



and maintenance of the Joint IP Rights. In this regard, the prosecuting Party agrees to provide reasonable time for the non-   prosecuting party to review and comment prior to any deadline associated with such Patent. Conformis and Stryker shall be   equally responsible for costs and expenses of preparing, filing, prosecuting and maintaining any such Joint IP Rights.   Notwithstanding the foregoing, in the event that the applicable Party decides not to file at all or not to file a continuing or other   application to maintain the viability of the U.S part of a family of patents to which an application belongs, or decides to abandon or   discontinue the prosecution or maintenance of any of the Joint IP Rights, such Party shall notify the other Party thereof, and such   other Party may elect to continue the prosecution (including non-provisional application and PCT entry) or maintenance of such   Joint IP Rights at its sole expense and in the name(s) of both Stryker and Conformis. The provisions of Sections 5.1(c) and 5.1(d)   and this Section 5.8 shall run with the Joint IP, and each party shall ensure that any assignee of its interest in the Joint IP expressly   assumes in writing such provisions. Any Party pursuing Patent applications in accordance with this Section 5.8 may disclose   Confidential Information in patent applications to the extent necessary to provide requisite support for claims therein, provided   however, the non-prosecuting Party will have the right, but not the obligation, to review and comment on the scope and content of   the proposed disclosure, including the proposed disclosure of Confidential Information, prior to submission of the first disclosure of   same in any such Patent applications, and have the comments reasonably considered by the prosecuting Party. In this regard, the   prosecuting Party agrees to provide reasonable time for the non-prosecuting party to review and comment prior to any such   submission associated with such Patent.   5.9 Infringement and Defense.   (a) Each Party may in its sole discretion enforce the Patents or other intellectual property rights it solely owns pursuant to   this Agreement, as well as to defend against any assertions of invalidity, unenforceability or ownership of such Patents.   (b) The Parties shall confer and consult with respect to disputes with Third Parties respecting the infringement, validity,   enforceability or ownership of any Joint IP, including the settlement thereof. Such consultation shall be for the purpose of   determining the best approach within such actions and neither Party shall take any action to enforce or defend any Joint IP without   the other Party's prior written consent.   16   Source: CONFORMIS INC, 10-Q, 11/1/2019



5.10 Publicity. Neither Party shall issue any press release or otherwise publicize this Agreement or the development work   to be conducted hereunder, except in accordance with Section 4.2 of the APA.   ARTICLE VI   REPRESENTATIONS AND WARRANTIES   6.1 Representations, Warranties and Covenants. Each Party hereby represents and warrants to, and covenants with,   each other Party that:   (a) Due Organization. Good Standing and Power. It is a corporation duly organized, validly existing and in good standing under   the laws of its jurisdiction of organization and has the power and authority to own, lease and operate its assets and to conduct the   business now being conducted by it. It has all requisite corporate power and authority to enter into this Agreement and to perform   its obligations hereunder.   (b) Authorization and Validity of Agreement. The execution, delivery and performance by it of this Agreement and the   consummation by it of the transactions contemplated hereby have been duly authorized and approved by all necessary corporate   or equivalent action on its part. This Agreement has been duly executed and delivered by it and constitutes its legal, valid and   binding obligation, enforceable against it in accordance with its terms, except as the same may be limited by applicable   bankruptcy, insolvency, reorganization, moratorium or other Applicable Laws relating to or affecting creditors' rights generally and   by general equity principles.   (c) Absence of Conflicts. The execution, delivery and performance by it of this Agreement and the consummation by it of the   transactions contemplated hereby do not and will not:   (i) violate any Applicable Laws, regulations, orders, writs, injunctions or decrees of any governmental, judicial, legislative,   executive, administrative or regulatory   17   Source: CONFORMIS INC, 10-Q, 11/1/2019



authority of the United States or any foreign country or of any state or local governmental authority;   (ii) conflict with, or result in the breach of any provision of, its certificate or articles of incorporation, bylaws or equivalent   organizational documents;   (iii) result in the creation of any lien or encumbrance of any nature upon any property being transferred or licensed by it   pursuant to this Agreement; or   (iv) violate, conflict with, result in the breach or termination of or constitute a default under (or event which with notice, lapse of   time or both would constitute a default under), any permit, contract or agreement to which it is a Party or by which any of its   properties or businesses are bound.   (d) Consents. No authorization, consent or approval of, or notice to or filing with, any governmental authority is required for the   execution, delivery and performance by it of this Agreement, other than those associated with obtaining required regulatory   approvals as contemplated hereby.   (e) Employee and Consultant Obligations. Each of its employees, consultants and Agents who will engage in activities on behalf of   a Party under the R&D Work Plan, or who will have access to Confidential Information, is contractually obligated, or will be   contractually obligated prior to his/her participation or access, to (i) assign to the Party all Intellectual Property rights conceived,   made or discovered by such employee or Agent, whether solely or in collaboration with others, in connection with such   employee's, consultant's or Agent's work for the Party, and (ii) maintain the confidentiality of the Confidential Information. To the   extent applicable, it is the intent of the Parties that ownership of all developments under this Agreement shall vest in the respective   Party by operation of law or by assignment prior to assignment to the other Party pursuant to Article V.   18   Source: CONFORMIS INC, 10-Q, 11/1/2019



(f) Debarment. No employee, consultant or Agent who will engage in activities on behalf of such Party under the R&D   Work Plan, or who will have access to Confidential Information of the other Party, has been the subject of a debarment proceeding   under 21 U.S.C. § 335a, and has been excluded from participation in any Federal or State or other government health care   program.   6.2 EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, INCLUDING THE   REQUIREMENTS IN THE R&D WORK PLAN, CONFORMIS MAKES NO WARRANTY WITH RESPECT TO THE   SERVICES OR DELIVERABLES FURNISHED HEREUNDER, AND NO WARRANTIES OF ANY KIND, WHETHER   WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-   INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY.   ARTICLE VII LIMITATION ON LIABILITY AND INDEMNIFICATION   7.1 Responsibility and Control. Each Party shall be solely responsible for the safety of its own employees, Agents and   subcontractors with respect to their activities related to this Agreement.   7.2 Limitation of Liability. EXCEPT FOR [**], IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE   OTHER PARTY FOR [**], EVEN IF SUCH PARTY WAS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH   DAMAGES. CONFORMIS' LIABILITY ON A PER OCCURRENCE BASIS UNDER SECTION 7.3(A)(IV) SHALL NOT   EXCEED THE GREATER OF (I) $[**] AND (II) THE AMOUNT OF INSURANCE COVERAGE ACTUALLY PAID TO   CONFORMIS UNDER THEN-CURRENT INSURANCE POLICIES OF CONFORMIS IN RESPECT OF SUCH   DAMAGES. For the purposes of this Section 7.2, per occurrence means the occurrence of any claim or series of claims   directly arising out of or resulting from the same act, omission or event.   7.3 Mutual Indemnification.   (a) Indemnification by Conformis. Conformis shall indemnify and hold harmless Stryker, its directors, officers, employees, Agents   and Affiliates and   19   Source: CONFORMIS INC, 10-Q, 11/1/2019



their respective successors, heirs and assigns (collectively the Stryker Indemnified Parties) against any and all claims, suits,   actions, and demands, wherever brought and however denominated, brought by a Third Party (all of the foregoing being referred   to herein as Claims) against the Stryker Indemnified Party including all damages, collateral damages and settlements arising   therefrom and reasonable outside attorneys' fees and litigation expenses related thereto, to the extent arising from or related to (i)   any breach of Conformis' representations, warranties or obligations under this Agreement, (ii) any alleged violation of any   Applicable Laws by Conformis, (iii) the negligence (excluding any product liability Claim), gross negligence or intentionally   wrongful acts or omissions of Conformis, its employees, consultants, Agents and Affiliates in their performance hereunder, and (iv)   any portion of a Claim alleging personal injury on account of product liability attributable to a Deliverable (including a Deliverable   within a Product or a Stryker Product). Conformis shall have no obligation or liability with respect to any Claim under Section   7.3(a)(iii) or Section 7.3(a)(iv) to the extent directly arising out of or relating to: (1) any use of the Products in any manner not in   accordance with applicable documentation (e.g., instructions for use, package inserts, labels, surgical guides and other materials   provided by or approved by Conformis) that is not a result of Conformis' conduct; (2) damage to the Products occurring after   shipment that is not a result of Conformis' conduct; or (3) any modifications to the Products that are not contemplated by the   instructions for use thereto by any Person other than Supplier and that is not a result of Conformis' conduct. Notwithstanding   anything to the contrary, Stryker's sole remedy and Conformis' exclusive liability for breach of Section 3.2 with respect to a   Product or a Stryker Product shall be as set forth in Section 10.1(i) of the Distribution Agreement.   (b) Indemnification by Stryker. Stryker shall indemnify and hold harmless Conformis, its directors, officers, employees, Agents   and   20   Source: CONFORMIS INC, 10-Q, 11/1/2019



Affiliates and their respective successors, heirs and assigns (collectively the Conformis Indemnified Parties) against any and   all Claims against the Conformis Indemnified Parties to the extent arising from or related to (i) any breach of Stryker's   representations or warranties under this Agreement, (ii) any alleged violation of any Applicable Laws by Stryker, and (iii) the   grossly negligent or intentionally wrongful acts or omissions of Stryker, its employees, consultants, Agents and Affiliates in their   performance hereunder.   (c) Joint Liability. To the extent that Stryker, on the one hand, and Conformis, on the other hand, each has indemnification   obligations to the other in connection with a single Claim, they will contribute to the aggregate damages, liabilities, costs and   expenses arising from such Claim in a proportion reflecting the relative and comparative responsibilities and determined liability of   the Parties for such damages, liabilities, costs and expenses, as well as any other relevant equitable considerations. The amount   paid or payable by a Party for purposes: of apportioning the aggregate damages, liabilities, costs and expenses shall be deemed to   include all reasonable legal fees and expenses incurred by such Party in connection with investigating, preparing for or defending   against such Claim.   (d) Indemnification Procedures. Claims for indemnification under this Agreement shall be governed by the indemnification   procedures set forth in Section 5.5 of the Asset Purchase Agreement.   (e) Settlement. If the indemnifying Party assumes the defense of a Claim, no compromise or settlement of such claims may be   effected by the indemnifying Party without the indemnified Party consent unless: (a) there is no finding or admission of any violation   of Applicable Requirements or any violation of the rights of any Person by the indemnified Party and no effect on any other claims   that may be made against the indemnified Party, (b) the sole relief provided is   21   Source: CONFORMIS INC, 10-Q, 11/1/2019



monetary damages that are paid in full by the indemnifying Party and (c) such settlement includes as an unconditional release of   liability by such Third Party claimant in respect of all Indemnified Persons.   ARTICLE VIII   TERM AND TERMINATION   8.1 Term. The term of this Agreement shall begin as of the Effective Date and continue until Acceptance of all Deliverables   for Milestones #1 and #2 pursuant to Section 3.4 and completion of Milestone #3, unless earlier terminated under Section 8.2, as   provided for under the Other Agreements, or as mutually agreed by the Parties.   8.2 Termination.   (a) Dissolution or Insolvency Event. Either Party may terminate this Agreement effective immediately upon delivery of a   Termination Notice if the other Party is (A) dissolved or is seeking to dissolve itself under applicable corporate law other than as   part of a corporate restructuring under which its assets were first transferred to an assignee under this Agreement in accordance   with Section 10.2; or (B) (i) becomes subject to an Insolvency Event, provided that, no termination right shall exist in respect of an   Insolvency Event that is a chapter 11 case under the Bankruptcy Code if the Party subject to such chapter 11 case (x) continues   to perform all of its material obligations under this Agreement, (y) does not seek to reject this Agreement or take any action in   such chapter 11 case to disavow or undermine the rights of the other Party under this Agreement, and (z) assumes this Agreement   on or before any deadline in such chapter 11 case for such assumption; notwithstanding the foregoing, nothing herein shall limit or   prevent the Party not subject to an Insolvency Event from objecting to assumption or assumption and assignment of this   Agreement or requiring cure payments or adequate assurance   22   Source: CONFORMIS INC, 10-Q, 11/1/2019



of future performance as a condition of assumption or assumption and assignment.   (b) Default. If any Party believes the other is in material breach of any of its material obligations under this Agreement in a   manner other than as set forth in Article III to which this Section 8.2(b) does not apply, it may give notice of such material breach   to the allegedly breaching Party, which Party shall have [**] (or such longer period of time as may be reasonably commensurate   with the effort reasonably required to remedy such default) in which to remedy such default. If such alleged material breach is not   remedied in the time period set forth above, the Party alleging material breach shall refer the matter to the chief executive officers   of each Party, who shall meet and confer within [**] after notice from the non-breaching Party of its desire for such a meeting. If   the Parties are unable to resolve any dispute in such meeting and no Action has been brought in accordance with Section 10.8   with respect to such dispute, the non-breaching Party may terminate this Agreement immediately upon delivery to the defaulting   Party of a Termination Notice. The non-defaulting Party's right to terminate this Agreement in accordance with this Section 8.2(b)   shall not be construed as an exclusive remedy.   (c) If Stryker Finally Rejects any Deliverable for Milestone #1 or #2 in accordance with Article III, Stryker may terminate   this Agreement, which termination shall be effective immediately upon delivery of a Termination Notice to Conformis.   8.3 Surviving Rights/Obligations.   (a) The provisions of Articles V, VI, VII and IX and Sections 8.3, 8.4, 10.1, 10.2, 10.5 - 10.13 and 10.15, together with   any provisions required for the interpretation or enforcement of any of the foregoing, shall survive the termination or expiration of   this Agreement, provided, however that Section 7.3(a)(iv) shall survive the termination or expiration of this Agreement for only   [**] thereafter. The termination of this Agreement shall not relieve any Party from obligations that are expressly indicated to survive   termination of the Agreement.   23   Source: CONFORMIS INC, 10-Q, 11/1/2019



8.4 Return or Destruction of Confidential Information. Solely with respect to Confidential Information in which a   Party has no ownership interest at all, owned or co-owned Confidential Information being exempt herefrom, upon termination of   this Agreement, unless independently authorized to retain such of the Disclosing Party's Confidential Information under an Other   Agreement, each Receiving Party shall, and shall direct its Representatives to, cease all use and make no further use of any   Confidential Information of the Disclosing Party and shall, upon written request from the Disclosing Party, promptly return or   destroy all Confidential Information of the Disclosing Party (including copies thereof) that is in tangible form (provided, however,   that, with respect to electronic imaging of the Disclosing Party's Confidential Information, such materials shall be deleted and   removed from access by an ordinary user from all computer hard drives, servers and similar media but shall not require any action   to delete or erase such materials from any disaster recovery tapes or other back-up media or any record retention or computer   storage system so long as the Receiving Party and its Representatives take such actions as are reasonably likely to prevent access   to such materials by any person other than information technology and other administrative employees who are responsible for   maintaining those disaster recovery tapes and other back-up media) and any documents created by the Receiving Party or any of   its Representatives containing Confidential Information of the Disclosing Party. The Receiving Party shall provide to the Disclosing   Party written certification of destroyed Confidential Information of the Disclosing Party promptly following the destruction thereof.   Notwithstanding the foregoing, the Receiving Party and its Representatives may retain one copy of any Confidential Information of   the Disclosing Party in a secure location in the Receiving Party's legal department for the purpose of establishing compliance with   Applicable Laws (including professional standards) and for defending or maintaining any litigation (including any administrative   proceeding) relating to this Agreement, the Other Agreement, the Prior CDA or the Confidential Information, provided that all such   information shall continue to be kept confidential pursuant to the terms of this Agreement.   24   Source: CONFORMIS INC, 10-Q, 11/1/2019



ARTICLE IX   RECORD-KEEPING AND AUDITS   9.1 Records Retention. Each of the Parties shall record in written or electronic form all material information with respect   to the performance of its obligations relating to the R&D Program in accordance with standard industry practices.   ARTICLE X   MISCELLANEOUS   10.1 Agency. Neither this Agreement nor any of the Other Agreements creates any partnership, agency or other   relationship among the Parties for any purpose, including for all tax purposes. No Party is granted any right or authority to assume   or to create any obligation or responsibility on behalf or in the name of the other Party or to bind the other Party in any manner   whatsoever.   10.2 Assignment and Change of Control. Except as otherwise provided herein, a Party shall not have the right to   assign any of its rights or obligations under this Agreement (whether through a merger, sale of stock, or otherwise) without the   prior written consent of the other Party; except that, either Party shall be permitted, without any need for the other Party's   consent, to assign this Agreement (a) in whole or in part to an Affiliate (provided, however, that once such Person is no longer an   Affiliate of the assigning Party, such former Affiliate shall assign this Agreement back to the assigning Party), provided that the   assigning Party provides the other Party notice of any such assignment provided further that failure to provide such notice of such   assignment shall not render such assignment void; or (b) to a Third Party in connection with sale or transfer of all or substantially all   of the assigning Party's business or assets relating to the subject matter of this Agreement, whether by Change of Control, merger,   sale of assets or otherwise; provided, however, that, with respect to clause (b), (i) any assignment of this Agreement shall be void   and have no effect unless and until the assignee assumes the   25   Source: CONFORMIS INC, 10-Q, 11/1/2019



obligations of the assigning Party in a written instrument, a copy of which is provided to the other Party; and (ii) any assignment of   this Agreement must be accompanied by a simultaneous assignment of the Other Agreements to the same assignee, and the   assigning Party's interest in the Purchased Assets to the same assignee unless otherwise agreed by Conformis in advance, which   agreement shall not be unreasonably withheld. Any assignment in whole or in part shall not relieve the assigning Party of its   obligations hereunder. If and to the extent that a Party assigns any of its rights and/or obligations hereunder in accordance with this   Section 10.2, then this Agreement shall be binding upon the assignee to the same extent as if it were a Party hereto. Any   assignment not in accordance with this Section 10.2 shall be void.   10.3 Further Actions. Each Party agrees, subsequent to the execution and delivery of this Agreement and without any   additional consideration, to execute, acknowledge and deliver such further documents and instruments, and to do all such other   acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.   10.4 Force Majeure.   (a) In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its   benefits because of fire, natural disaster, action or decrees of Governmental Entities or any other event not within such Party's   reasonable control (a Force Majeure Event), the Party who has been so affected shall give written notice to the other Party as   soon as practicable and shall do everything reasonably possible to resume performance. Upon receipt of such notice, all   obligations under the Agreement shall be immediately suspended. If the period of nonperformance exceeds [**] from the receipt   of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may, by giving written notice,   terminate the Agreement. Any acceptance or warranty period affected by a Force Majeure Event shall likewise be extended for a   period equal to the duration of such Force Majeure Event. As applied to this Section 10.4   26   Source: CONFORMIS INC, 10-Q, 11/1/2019



and to determine whether an event is reasonably beyond control of a Party, materials shortages, strikes, slowdowns, other labor   related delays or events resulting from a Party's, its Affiliates or their respective agents' negligence, gross negligence, fraud or   intentional misconduct are not Force Majeure Events.   (b) Notwithstanding the provisions set forth in Section 10.4(a), above, a Force Majeure Event shall not include any   governmental action of an enforcement nature that arises from or relates to either Party's failure to comply with any federal,   national, state, provincial, international, or local law, statute, regulation or ordinance applicable to such Party's performance   hereunder.   10.5 Notices. All notices, requests, demands, waivers, instructions, consents and other communications to be given   pursuant to the terms of this Agreement will be in writing and will be deemed to have been duly given upon receipt if delivered by   hand, sent by a nationally recognized overnight mail service, or mailed by registered or certified mail, return receipt requested,   postage prepaid:   If to Stryker, addressed to:   Howmedica Osteonics Corp. c/o Stryker Corporation Attn: Legal Department, [**] 325 Corporate Drive Mahwah, NJ 07430   If to Conformis, addressed to:   Conformis, Inc. Attn: Chief Executive Officer and General Counsel 600 Technology Park Drive Billerica, MA 01821   With a copy (which shall not constitute notice) to:   27   Source: CONFORMIS INC, 10-Q, 11/1/2019



WilmerHale Attn: Jason Kropp, Esq. 60 State Street Boston, MA 02109   Any Party may change its address, telephone number, or facsimile number by prior written notice to the other Party.   10.6 Amendments and Waivers. This Agreement may not be modified or amended except by an instrument or   instruments in writing signed by the Party against whom enforcement of any such modification or amendment is sought. Conformis   may waive compliance by Stryker or Stryker may waive compliance by Conformis with any term or provision of this Agreement   on the part of such Party to be performed or complied with, but only by an instrument in writing. The waiver by any Party of a   breach of any term or provision of this Agreement will not be construed as a waiver of any subsequent breach.   10.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of New York State   (without regard to the conflict of laws provisions thereof).   10.8 Jurisdiction. Subject to Section 10.14, the federal and state Courts of New York State shall have exclusive   jurisdiction to hear and decide any suit, Action or proceedings, and to settle any disputes, which may arise out of or in connection   with this Agreement; provided, however, that each Party shall have the right to institute judicial proceedings in any court of   competent jurisdiction against the other Party or anyone acting by, through or under the other Party, in order to enforce an Order   entered by federal state courts of New York. Each Party shall cause its applicable permitted Third Party sublicensees and   Affiliates receiving any rights or benefits (including the receipt of any Confidential Information) under this Agreement to be bound   by this Section 10.8 prior to their exercise of any such rights or receipt of any such benefits. If such Party fails to comply with the   foregoing sentence   28   Source: CONFORMIS INC, 10-Q, 11/1/2019



with respect to any such Third Party or Affiliate, the other Party shall have the right to seek relief in any court of competent   jurisdiction in connection with any dispute involving such Third Party or Affiliate.   10.9 Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of   any provision shall not affect the validity or enforceability of the other provisions hereof. If any term or other provision of this   Agreement, or the application thereof to any Person or any circumstance, is invalid, illegal or unenforceable by a Court of   competent jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be   valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement   and the application of such provision to other Persons or circumstances shall not be affected by such invalidity, illegality or   unenforceability, nor shall such invalidity, illegality or unenforceability affect the validity or enforceability of such provision, or the   application thereof, in any other jurisdiction.   10.10 Entire Agreement and Third-Party Beneficiaries. This Agreement (including the Other Agreements) contains   the entire agreement by and among the Parties with respect to the subject matter hereof and there are no agreements,   understandings, representations or warranties between the Parties other than those set forth or referred to herein. This Agreement   is not intended to confer upon any Person not a party (or their successors and assigns permitted by Section 10.2), and to the   extent expressly provided, their Affiliates, Agents, employees and representatives, any rights or remedies hereunder, except that   Section 7.3(a) and Section 7.3(b) hereof are intended to benefit, and to be enforceable by, any of the Relevant Indemnified   Parties therein described.   10.11 Jointly Prepared. This Agreement has been prepared jointly and shall not be strictly construed against any Party.   29   Source: CONFORMIS INC, 10-Q, 11/1/2019



10.12 Expenses. Except as otherwise set forth in this Agreement and the Other Agreements, all legal and other costs and   expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the Party incurring   such costs and expenses.   10.13 Counterparts and Electronic Transmission. This Agreement may be executed in one or more counterparts, all   of which will be considered one and the same agreement, and will become effective when one or more counterparts have been   signed by each of the Parties and delivered to the other Party. This Agreement may be executed and delivered by facsimile or e-   mail transmission with the same effect as if a manually signed original was personally delivered.   10.14 Negotiation in Event of Dispute. In the event of any dispute or disagreement between any of the Parties as to   the interpretation of any provision of this Agreement or any agreement incorporated herein, the performance of obligations   hereunder or thereunder, or any other disputed matter relating hereto or thereto, such matter, upon the written request of any   Party, will be referred to an executive of each Party. Such executives will promptly meet in good faith to resolve the dispute. If the   executives do not agree upon a decision within thirty calendar days after the reference of the matter to them, any Party will be free   to exercise any remedies available to it.   10.15 Rules of Construction. As used in this Agreement, the words include, includes and including means   including without limitation, and no inferences or conclusions of any sort shall be drawn from the fact that in some instances in   this Agreement the words include, includes and including are actually followed by the phrase without limitation or the   equivalent while in other instances they are not. Except where the context expressly requires otherwise, the use of any gender   herein will be deemed to encompass references to any gender, and the use of the singular will be deemed to include the plural (and   vice versa).   30   Source: CONFORMIS INC, 10-Q, 11/1/2019



[Signature Page Follows]   31   Source: CONFORMIS INC, 10-Q, 11/1/2019



IN WITNESS WHEREOF, the parties have caused this Development Agreement to be duly executed as of the respective   dates written below.   HOWMEDICA OSTEONICS CORP. CONFORMIS, INC.   By: /s/ Spencer Stiles By: /s/ Mark A. Augusti Name: Spencer Stiles Name: Mark A. Augusti Title: President Title: President and CEO Date: September 26, 2019 Date: 9-30-2019   [Signature Page to Development Agreement]   Source: CONFORMIS INC, 10-Q, 11/1/2019



Execution Version Certain identified information has been excluded from the exhibit because it is both (i) not material and (ii) would likely cause competitive harm to the Company, if publicly disclosed. Double asterisks denote omissions.   Source: CONFORMIS INC, 10-Q, 11/1/2019 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
Example Output: 38669

Example Input: 1                                                                    EXHIBIT 10.26

Confidential Treatment Requested

                          CO-BRANDING AGREEMENT

     This Co-Branding Agreement (this Agreement) by and between VerticalNet, Inc., a Pennsylvania corporation having a principal place of business at 700 Dresher Road, Suite 100, Horsham, Pennsylvania, PA 19044 (VerticalNet), and Neoforma.com, Inc., a Delaware corporation having a principal place of business at 3255-7 Scott Boulevard, Santa Clara, CA 95054 (Neoforma), is dated as of November 19, 1999 (the Effective Date).

     In consideration of the mutual covenants herein, and intending to be legally bound hereby, the Parties agree as follows:

1. DEFINITIONS.

     1.1 ADVERTISING shall mean any paid advertisements, links, pointers, sponsorships, buttons, banners, navigation, or any other placements or promotions or similar services or rights on a Site, but excluding Advertising that is not paid for or which is part of an overall partnering or revenue sharing arrangement and any Product Listings.

     1.2 AFFILIATE shall mean, when used with reference to a Party, any individual or entity directly or indirectly controlling, controlled by or under common control with such Party. For purposes of this definition, control means the direct or indirect ownership of at least 50% of the outstanding voting securities of a Party, or the right to control the policy decisions of such Party.

     1.3 CAREER CENTER GROSS MARGIN shall have the meaning ascribed thereto in Section 10.5.1  [CO-BRANDED CAREER CENTER].

     1.4 CO-BRANDED CAREER CENTER shall mean the Site located at an URL to be mutually agreed upon (which agreement shall not be unreasonably withheld or delayed) containing a VerticalNet Mark and a Neoforma Mark listing openings for positions and posting other career information in the medical and healthcare fields substantially in the form of the existing Career Center portions of the VerticalNet Medical Online Communities.

     1.5 CO-BRANDED SITES shall mean the Co-Branded Career Center and the Co-Branded Training and Education Center.

     1.6 CO-BRANDED TRAINING AND EDUCATION CENTER shall mean the Site located at an URL to be mutually agreed upon (which agreement shall not be unreasonably withheld or delayed) containing a VerticalNet Mark and a Neoforma Mark listing training and education offerings in the medical and healthcare fields substantially in the form of the existing Training and Education portions of the VerticalNet Medical Online Communities.

     1.7 CONFIDENTIAL INFORMATION shall mean all proprietary and confidential information of a Party, including, without limitation, trade secrets, technical information, business information, sales information, customer and potential customer lists and identities, product sales plans, sublicense agreements, inventions, developments, discoveries, software, know-how, methods, techniques, formulae, data, processes and other trade secrets and proprietary ideas, whether or

2

not protectable under patent, trademark, copyright or other areas of law, that the other Party has access to or receives and which, if disclosed in writing, is marked as Confidential Information, or if disclosed orally, is confirmed in writing to be Confidential Information within five days of such oral disclosure, but does not include information that (a) is or becomes publicly available through no fault of the receiving Party; (b) was already known to the receiving Party at the time it was disclosed to the receiving Party, as evidenced by written records of the receiving Party; (c) is independently developed by or on behalf of the receiving Party without reference or access to such information, as evidenced by written records of the receiving Party; or (d) is received from a third party who is under no obligation of confidentiality to the disclosing Party.

     1.8 DEDUCTIBLES shall mean credits for claims, allowances, seller rebates or returned goods, commissions paid to any third parties, and sales, service, excise, use, value-added and other similar taxes (excluding income taxes) actually paid.

     1.9 INITIAL TERM shall mean the Effective Date through the day prior to the second anniversary of the Effective Date, unless earlier terminated pursuant to Section 11.

     1.10 INTELLECTUAL PROPERTY shall mean any and all trade secrets, patents, copyrights, trademarks, URLs, trade dress, brand features, know-how and similar rights of any type under the laws of any applicable governmental authority, including, without limitation, all applications and registrations relating to any of the foregoing.

     1.11 INTELLECTUAL PROPERTY RIGHTS shall mean all rights in and to Intellectual Property.

     1.12 LABORATORY PRODUCTS shall mean any equipment, instruments or other products used for scientific research and analysis in the field of human health care, including, but not limited to, the categories of equipment, instruments and products listed on EXHIBIT A, (i) that is (a) previously used and is being resold by or on behalf of the prior end-user purchaser or (b) previously sold but unused and is being resold by or on behalf of the prior end-user purchaser, and (ii) excluding Medical Products.

     1.13 LABORATORY PRODUCTS LISTINGS shall mean any VerticalNet Laboratory Product Listings and Neoforma Laboratory Product Listings.

     1.14 LABORATORY PRODUCTS NET REVENUE shall mean the Transaction Fees derived from the promotion and sale of the Neoforma Product Listings for Laboratory Products through the Co-Branded Sites, less any Deductibles.

Source: NEOFORMA INC, S-1/A, 12/2/1999





     1.15 LINK shall mean a link (including, but not limited to, a hyperlink, button or banner) that connects two Sites in a manner so that when a user clicks on the link, the user is transferred directly from one Site to a second Site. A Link from Site A to Site B indicates that Site A is the Site of origin and Site B is the Site to which the user is linked.

     1.16 MEDICAL PRODUCTS shall mean any equipment, including capital equipment, instruments and other products used for in-patient diagnostic or treatment purposes in the field of human health care, excluding Laboratory Products.

                                    2    3

     1.17 MEDICAL PRODUCTS LISTINGS shall mean any VerticalNet Medical Product Listings and Neoforma Medical Product Listings.

     1.18 MEDICAL PRODUCTS NET REVENUE shall mean the Transaction Fees derived from the sale of New Medical Products and Used and Excess Medical Products through the Neoforma Sites, less any Deductibles.

     1.19 NEOFORMA AUCTION shall mean the functionality and services provided at the auction portion of the Neoforma Site.

     1.20 NEOFORMA CAREER CONTENT shall have the meaning ascribed thereto in Section 4.5  [CO-BRANDED CAREER CENTER].

     1.21 NEOFORMA COMPETITORS shall mean Medibuy.com, Promedix.com, Medicalbuyer.com and Medsite.com. During the Term, Neoforma may add to this defined term additional third parties whose primary purpose is the multi-vendor online sale of Medical Products.

     1.22 NEOFORMA CONTENT shall mean the Neoforma Career Content and the Neoforma T&E Content.

     1.23 NEOFORMA DELIVERABLE shall mean any good, service or other item to be delivered or made available by Neoforma.

     1.24 NEOFORMA GAR shall mean Neoforma GAR, Inc.

     1.25 NEOFORMA HOME PAGE shall mean the home page located at the Neoforma Site.

     1.26 NEOFORMA LABORATORY PRODUCTS LISTING shall mean a Neoforma Product Listing relating to a Laboratory Product that is not already listed on a VerticalNet Site.

     1.27 NEOFORMA LINK shall mean a Link that contains a Neoforma Mark and will take users of other Sites to the Neoforma Home Page.

     1.28 NEOFORMA MARK shall mean any trademark, service mark, trade name, domain name, design or logo of Neoforma.

     1.29 NEOFORMA MEDICAL PRODUCTS LISTING shall mean a Neoforma Product Listing relating to a Medical Product that is not already covered by a VerticalNet Medical Product Listing on Neoforma Plan and/or Neoforma Shop.

     1.30 NEOFORMA PLAN shall mean the plan portion of the Neoforma Site.

     1.31 NEOFORMA PRODUCT LISTING shall mean a Product Listing of Neoforma for Medical Products or Laboratory Products, including any Neoforma Product Listings for Laboratory Products made available hereunder by Neoforma to VerticalNet.

                                    3    4

     1.32 NEOFORMA RESOURCES HOME PAGE shall mean the Site located at http://www.neoforma.com/rf/index.html?PageMode=Static&file=resrc_main&hdrTab= resources&subHdrTab=0&dir=resources (or a successor Site thereto).

     1.33 NEOFORMA SHOP shall mean the shop portion of the Neoforma Site.

     1.34 NEOFORMA SITE shall mean any Site owned and operated by Neoforma, including, but not limited to, the Site located at www.neoforma.com (or any successor Sites to any of the foregoing).

     1.35 NEOFORMA T&E CONTENT shall have the meaning ascribed thereto in Section 5.5  [CO-BRANDED TRAINING AND EDUCATION SITE].

     1.36 NET ADVERTISING REVENUE shall mean the gross amount collected by a Party from a third party for the sale of Advertising, less any Deductibles.

     1.37 NEW MEDICAL PRODUCTS shall mean new, unused Medical Products.

     1.38 PARTY shall mean VerticalNet or Neoforma.

     1.39 PRODUCT LISTING shall mean a listing of a third party's product at a Site in exchange for a fee, commission, or other compensation for purposes of promoting the sale of such third party's product to a third party purchaser, including, without limitation, sales by auction.

     1.40 QUALIFIED LEAD shall mean a customer referred by Neoforma to VerticalNet that is not, at the time of referral, a customer of VerticalNet, which customer has agreed to place a listing on (a) the Co-Branded Career Center and/or (b) the Co-Branded Training and Education Center.

     1.41 RENEWAL TERM shall have the meaning ascribed thereto in Section 11.1  [AUTOMATIC RENEWAL].

     1.42 SITE shall mean a site located on the World Wide Web portion of the Internet.

     1.43 TERM shall mean the Initial Term and any Renewal Terms.

     1.44 TRAINING AND EDUCATION GROSS MARGIN shall have the meaning ascribed thereto in Section 10.5.2  [CO-BRANDED TRAINING AND EDUCATION CENTER].

Source: NEOFORMA INC, S-1/A, 12/2/1999





     1.45 TRANSACTION ORIGINATION PARTY shall mean the Party from whose Site a third party clicked through, using a Link, to a Site containing a Product Listing resulting in the purchase of the product promoted in such Product Listing by such third party.

     1.46 TRANSACTION FEE shall mean any payments, including, without limitation, fees and commissions, but collected by a Party from a third party in consideration for goods or services, excluding any Advertising for the benefit of a third party, provided or promoted at one or more Sites operated or controlled by such Party.

     1.47 URL shall mean a universal resource locator used for purposes of identifying a page located on the Internet.

                                    4    5

     1.48 USED AND EXCESS MEDICAL PRODUCTS shall mean (a) previously used Medical Products being resold by or on behalf of the prior end-user purchaser and (b) previously sold but unused Medical Products being resold by or on behalf of the prior end-user purchaser.

     1.49 VERTICALNET AUCTION shall mean, in VerticalNet's discretion, the Site located at www.labx.com (or a successor Site thereto) or the Auction portion of the Site located at www.hospitalnetwork.com.

     1.50 VERTICALNET BUYER'S GUIDE shall mean the Buyer's Guide portion of the VerticalNet Medical Online Communities (or a successor Site thereto).

     1.51 VERTICALNET COMPETITOR shall mean any Site primarily directed to the sale or auction of Laboratory Products.

     1.52 VERTICALNET CONTENT shall have the meaning ascribed thereto in Section 6.1  [VERTICALNET CONTENT].

     1.53 VERTICALNET DELIVERABLE shall mean any good, service or other item to be delivered or made available by VerticalNet.

     1.54 VERTICALNET LABORATORY PRODUCTS LISTING shall mean a VerticalNet Product Listing relating to a Laboratory Product that is not already covered by a Neoforma Medical Product Listing on a VerticalNet Site.

     1.55 VERTICALNET LINK shall mean a Link that contains a VerticalNet Mark and will take users of other Sites to a page of a VerticalNet Site.

     1.56 VERTICALNET MARK shall mean any trademark, service mark, trade name, domain name, design or logo of VerticalNet.

     1.57 VERTICALNET MEDICAL ONLINE COMMUNITIES shall mean the Sites located at www.edental.com, www.hospitalnetwork.com, www.medicaldesignonline.com, and www.nurses.com (or any successor Sites to any of the foregoing).

     1.58 VERTICALNET MEDICAL PRODUCTS LISTING shall mean a VerticalNet Product Listing relating to a Medical Product that is not already listed on Neoforma Plan and Neoforma Shop.

     1.59 VERTICALNET PRODUCT LISTING shall mean a Product Listing of VerticalNet for Medical Products or Laboratory Products, including any VerticalNet Product Listings made available hereunder by VerticalNet to Neoforma.

     1.60 VERTICALNET PRODUCT SHOWCASE shall mean the Product Showcase portion of the VerticalNet Medical Online Communities.

     1.61 VERTICALNET SITE shall mean any Site owned and operated by VerticalNet, including, but not limited to, the VerticalNet Medical Online Communities, the Co-Branded Sites and the Site located at www.verticalnet.com (or a successor Site to any of the foregoing).

                                    5    6

2. MEDICAL PRODUCTS.

     2.1 Within 30 days after the Effective Date, VerticalNet shall provide a copy of all VerticalNet Medical Product Listings for Used and Excess Medical Products existing as of the Effective Date to Neoforma for use on Neoforma Plan, Neoforma Shop and Neoforma Auction on an exclusive basis (even as to VerticalNet), to the extent VerticalNet has the right to do so.

     2.2 Within 30 days after the Effective Date, VerticalNet shall provide a copy of all VerticalNet Medical Product Listings for New Medical Products existing as of the Effective Date to Neoforma for use on Neoforma Plan, Neoforma Shop and Neoforma Auction on an exclusive basis (even as to VerticalNet), to the extent VerticalNet has the right to do so. VerticalNet shall use commercially reasonable efforts to acquire consent from its customers to provide all VerticalNet Medical Product Listings for New Medical Products existing as of the Effective Date to Neoforma.

     2.3 From time to time during the Term, VerticalNet shall provide a copy of all VerticalNet Medical Product Listings received by VerticalNet after the Effective Date to Neoforma as such Product Listings are made available to VerticalNet for use on Neoforma Plan, Neoforma Shop and Neoforma Auction on an exclusive basis (even as to VerticalNet), to the extent VerticalNet has the right to do so. VerticalNet shall use commercially reasonable efforts to acquire consent from its customers to provide all VerticalNet Medical Product Listings for New Medical Products received by VerticalNet after the Effective Date to Neoforma.

     2.4 Notwithstanding the foregoing, VerticalNet's activities in connection with its Storefronts and E-Commerce Centers (as conducted today, in a fashion substantially similar to the manner in which such activities are conducted today or as otherwise mutually agreed upon by the parties, which agreement shall not be unreasonably withheld or delayed) shall not be considered to be a breach of Section 2.1  [MEDICAL PRODUCTS], 2.2  [MEDICAL PRODUCTS] or 2.3  [MEDICAL PRODUCTS].

     2.5 VerticalNet hereby grants Neoforma an exclusive license, even as to

Source: NEOFORMA INC, S-1/A, 12/2/1999





VerticalNet, to use, modify, enhance, reproduce, display, perform and transmit the VerticalNet Medical Product Listings, subject to and in accordance with the terms, conditions and provisions of this Agreement, to the extent that VerticalNet has the right to do so.

     2.6 Neoforma shall list each VerticalNet Product Listing on Neoforma Plan or Neoforma Shop or Neoforma Auction. The look-and-feel of the VerticalNet Product Listings as displayed on Neoforma Plan, Neoforma Shop and Neoforma Auction shall be substantially consistent with the look-and-feel of the other Medical Products Listings displayed on such Sites, unless otherwise agreed upon by the Parties.

     2.7 VerticalNet shall add a Neoforma Link to each VerticalNet Buyer's Guide labeled Neoforma Search (or as otherwise mutually agreed upon by the Parties), substantially consistent with the prototype attached hereto as EXHIBIT B, which Links shall be as prominent as the other Links on such Sites. If a user of a VerticalNet Buyer's Guide clicks on such button, such user shall be linked to a Site containing a VerticalNet frame surrounding the appropriate search results on Neoforma Shop. As soon as is commercially reasonable, and in any event, no later that the first anniversary of the Effective Date, such search results shall only contain

                                    6    7

Product Listings for New Medical Products. Notwithstanding the foregoing, if, at any time, Neoforma lists Used and Excess Medical Products on Neoforma Shop, VerticalNet may remove or relocate the Neoforma Link described in this Section 2.7  [MEDICAL PRODUCTS], in VerticalNet's reasonable discretion.

     2.8 Neoforma hereby grants VerticalNet the right to frame all pages of the Neoforma Sites that contain Medical Products Listings with a frame containing VerticalNet Marks substantially consistent with the prototype attached hereto as EXHIBIT C, which framed pages shall only be accessible from the VerticalNet Sites. VerticalNet shall place a Link on the homepage of each VerticalNet Medical Online Community under Marketplace to such framed pages of the Neoforma Sites.

     2.9 Neoforma shall host and maintain Neoforma Plan, Neoforma Shop and Neoforma Auction. Neoforma owns and shall continue to own the domain name and the URL used in connection with its business, including but not limited to, Neoforma Plan, Neoforma Shop and Neoforma Auction.

     2.10 VerticalNet shall not enter into any agreement with a Neoforma Competitor for the on-line listing of Medical Products or place any Link to the Site of a Neoforma Competitor on the VerticalNet Medical Online Communities.

     2.11 During the Term, VerticalNet shall not use its Site located at www.meddeals.com to conduct online auctions of Medical Products.

3. LABORATORY PRODUCTS.

     3.1 Within 30 days after the Effective Date, Neoforma shall provide a copy of all Neoforma Laboratory Product Listings existing as of the Effective Date to VerticalNet for use on the VerticalNet Sites on an exclusive basis (even as to Neoforma), to the extent Neoforma has the right to do so. Notwithstanding the foregoing, the provisions of Sections 3.1  [LABORATORY PRODUCTS] through 3.8  [LABORATORY PRODUCTS] shall not apply to any Laboratory Product sold through live (non-virtual) auctions conducted by Neoforma (through Neoforma GAR or otherwise) for which no Product Listing is made; provided, however, that Neoforma shall use commercially reasonable efforts to acquire Product Listings for all such Laboratory Products. If Neoforma receives a set of Product Listings packaged as a lot, Neoforma shall use commercially reasonable efforts to provide all Laboratory Product Listings contained in such lot to VerticalNet in accordance with this Agreement.

     3.2 From time to time during the Term, Neoforma shall provide a copy of all Neoforma Laboratory Product Listings received by Neoforma after the Effective Date to VerticalNet as such Product Listings are made available to Neoforma for use on the VerticalNet Sites on an exclusive basis (even as to Neoforma).

     3.3 Neoforma hereby grants VerticalNet an exclusive license, even as to Neoforma, to use, modify, enhance, reproduce, display, perform and transmit the Neoforma Laboratory Product Listings, subject to and in accordance with the terms, conditions and provisions of this Agreement, to the extent Neoforma has the right to do so.

                                    7    8

     3.4 VerticalNet shall list each such Neoforma Product Listing on the VerticalNet Auction. Neoforma shall provide each Neoforma Product Listing to VerticalNet in the form of the template attached hereto as EXHIBIT D. The look-and-feel of the Neoforma Product Listings as displayed on the VerticalNet Auction shall be substantially consistent with the look-and-feel of the other Laboratory Products Listings displayed on the VerticalNet Auction, unless otherwise agreed upon by the Parties.

     3.5 VerticalNet hereby grants Neoforma the right to frame all pages of the VerticalNet Auction that contain Laboratory Products Listings with a frame containing Neoforma Marks, which framed pages shall only be accessible from the Neoforma Sites.

     3.6 VerticalNet shall host and maintain the VerticalNet Auction. VerticalNet owns and shall continue to own the domain name and the URL used in connection with the VerticalNet Auction.

     3.7 Neoforma shall add Links labeled Laboratory or Laboratory Equipment (or as otherwise mutually agreed upon by the Parties) to a Site containing a Neoforma frame surrounding the VerticalNet Auction from Neoforma Plan, Neoforma Shop and Neoforma Auction, which Links shall be as prominent as the other Links on such Sites.

     3.8 Neoforma shall not enter into, and shall cause its Affiliates to not enter into, any agreement with a third party for the on-line listing of Laboratory Products on a VerticalNet Competitor or place any Link to a VerticalNet Competitor on the Neoforma Sites.

Source: NEOFORMA INC, S-1/A, 12/2/1999





     3.9 Within four weeks after the Effective Date, the Parties will collaborate to establish a close mutually-beneficial arrangement between Neoforma GAR and VerticalNet.

4. CO-BRANDED CAREER CENTER

     4.1 VerticalNet shall design, develop and implement a Co-Branded Career Center and shall use commercially reasonable efforts to implement the Co-Branded Career Center as soon as possible following the Effective Date, and in any event, no later than February 1, 2000. The Co-Branded Career Center shall contain employment listings from the Career Center portion of each VerticalNet Medical Online Community. The overall look and feel of the Co-Branded Career Center shall be mutually agreed upon by the Parties and shall be substantially in the form of EXHIBIT E. VerticalNet shall host and maintain the Co-Branded Career Center in accordance with the terms and conditions set forth in this Agreement. Neoforma may maintain and/or add other career resource links to the Neoforma Sites; provided, however, that Neoforma shall not place any Links on any Neoforma Site to a Site that is primarily a career center and shall not place a Neoforma Link on any Site that is primarily a career center.

     4.2 The Co-Branded Career Center shall contain Links to the Career Center portion of each VerticalNet Medical Online Community.

     4.3 After the Co-Branded Career Center is implemented, VerticalNet shall notify Neoforma in writing at least five days prior to making any material change to the Co-Branded Career Center. If Neoforma does not notify VerticalNet of its rejection of such change within five days, Neoforma shall be deemed to have approved such change.

                                    8    9

     4.4 VerticalNet shall register and own the domain name and the URL used in connection with the Co-Branded Career Center, subject, however, to Neoforma's agreement on the name to be used for the URL, which domain name and URL shall be mutually agreed upon by the Parties.

     4.5 From time to time during the Term, Neoforma shall provide Qualified Leads to VerticalNet for job listings for inclusion, at VerticalNet's then current listing rate, in the Co-Branded Career Center and, in VerticalNet's sole discretion, on any other VerticalNet Site. VerticalNet shall be responsible for, and shall have sole control of, all credit, billing and collection in connection with the Qualified Leads. Neoforma shall have no authority to make collections on behalf of VerticalNet.

     4.6 Neoforma hereby grants VerticalNet an exclusive license to use, modify, enhance, reproduce, display, perform and transmit the Neoforma Career Content, subject to and in accordance with the terms, conditions and provisions of this Agreement. VerticalNet shall not disclose, transfer or otherwise provide the Neoforma Career Content to any third party, except as otherwise permitted under this Agreement.

     4.7 Neoforma shall place a Link on the Neoforma Resources Home Page (unless otherwise mutually agreed upon by the Parties) labeled Career Center (or a mutually agreeable substitute for such term) in a mutually agreeable location and size that will directly transfer users to the Co-Branded Career Center, which Links shall be as prominent as (a) the other Links on such Site and (b) the Career Link on such Site on the Effective Date. Neoforma shall not place any Link on a Neoforma Site to, or a Neoforma Link on the Site of, any other provider or host of a service similar to the Co-Branded Career Center or to any other career service websites.

     4.8 VerticalNet hereby grant Neoforma the right to frame all pages of the Co-Branded Career Center with a frame, which framed pages shall only be accessible from the Neoforma Sites.

5. CO-BRANDED TRAINING AND EDUCATION SITE

     5.1 VerticalNet shall design, develop and implement a Co-Branded Training and Education Center and shall use commercially reasonable efforts to implement the Co-Branded Training and Education Center as soon as possible following the Effective Date. The Co-Branded Training and Education Center shall contain training and education listings from the Training and Education portion of each VerticalNet Medical Online Community. The overall look and feel of the Co-Branded Training and Education Center shall be mutually agreed upon by the Parties and shall be substantially in the form of EXHIBIT F. VerticalNet shall host and maintain the Co-Branded Training and Education Center in accordance with the terms and conditions set forth in this Agreement.

     5.2 The Co-Branded Training and Education Center shall contain Links to the Training and Education portion of each VerticalNet Medical Online Community.

     5.3 After the Co-Branded Training and Education Center is implemented, VerticalNet shall notify Neoforma in writing at least five days prior to making any material change to the Co-Branded Training and Education Center. If Neoforma does not notify VerticalNet of its rejection of such change within five days, Neoforma shall be deemed to have approved such change.

                                    9    10

     5.4 VerticalNet shall register and own the domain name and the URL used in connection with the Co-Branded Training and Education Center, subject, however, to Neoforma's agreement on the name to be used for the URL, which domain name and URL shall be mutually agreed upon by the Parties.

     5.5 On the Effective Date, Neoforma shall provide a copy of all listings for inclusion, at VerticalNet's reasonable business discretion and at VerticalNet's then current listing rate, in the Co-Branded Training and Education Center and, in VerticalNet's sole discretion, on any other VerticalNet Site (the Neoforma T&E Content) on an exclusive basis (even as to Neoforma). Neoforma shall provide the Neoforma T&E Content to VerticalNet. VerticalNet shall be responsible for, and shall have sole control of, all credit, billing and collection in connection with the Neoforma T&E Content. Neoforma shall have no authority to make collections on behalf of VerticalNet.

     5.6 From time to time during the Term, Neoforma shall provide Qualified

Source: NEOFORMA INC, S-1/A, 12/2/1999





Leads to VerticalNet for job listings for inclusion, at VerticalNet's then current listing rate, in the Co-Branded Training and Education Center and, in VerticalNet's sole discretion, on any other VerticalNet Site.

     5.7 Neoforma hereby grants VerticalNet an exclusive license to use, modify, enhance, reproduce, display, perform and transmit the Neoforma T&E Content, subject to and in accordance with the terms, conditions and provisions of this Agreement. VerticalNet shall not disclose, transfer or otherwise provide the Neoforma T&E Content to any third party, except as otherwise permitted under this Agreement.

     5.8 Neoforma shall place a Link on the Neoforma Resources Home Page (unless otherwise mutually agreed upon by the Parties) labeled Training and Education (or mutually agreeable substitutes for such terms) in a mutually agreeable location and size that will directly transfer users to the Co-Branded Training and Education Center, which Links shall be as prominent as (a) the other Links on such Site and (b) the Training Link on the Site on the Effective Date. Neoforma shall not place any Link on a Neoforma Site to, or a Neoforma Link on the Site of, any other provider or host of a service similar to the Co-Branded Training and Education Center or to any other training or education service websites.

6. VERTICALNET CONTENT

     6.1 VerticalNet shall from time to time provide or make available to Neoforma, for use in accordance with the provisions of this Agreement, the title and an abstract of (a) all original content created from time to time by the managing editor of the VerticalNet Medical Online Communities, and (b) the content created from time to time by guest columnists for the VerticalNet Medical Online Communities (the VerticalNet Content), to the extent such columnists have approved the provision of such content by VerticalNet to Neoforma.

     6.2 VerticalNet hereby grants to Neoforma a non-exclusive, non-transferable license to use, reproduce, display and transmit the VerticalNet Content, solely in connection with the operation of the Neoforma Site, subject to and in accordance with the terms, conditions and provisions of this Agreement. Neoforma may reproduce, display and transmit any VerticalNet

                                    10    11

Content for up to three weeks on the Neoforma Site, and after the expiration of such three week period Neoforma shall cease to reproduce, display and transmit such VerticalNet Content and shall remove such VerticalNet Content from the Neoforma Site.

     6.3 On each page of the Neoforma Site that contains all or a portion of the VerticalNet Content, Neoforma shall place a VerticalNet Link to the VerticalNet Site that contains the full text of such VerticalNet Content in a mutually agreeable location and size.

     6.4 Neoforma shall not remove any titles or any trademark, copyright or patent notices, or any proprietary or restricted rights notices that appear on the VerticalNet Content. All such titles and notices must be reproduced on all permitted copies of the VerticalNet Content.

7. ADVERTISING

     7.1 ADVERTISEMENTS ON THE NEOFORMA SITE.

             7.1.1 During the Term, VerticalNet shall have the non-exclusive right (except as to Neoforma) to arrange for the sale of Advertising on Neoforma Plan (and any other parts of the Neoforma Sites within which Neoforma elects to include Advertising) to third parties. During the Term, the parties shall meet from time to time to discuss the Advertising inventory available for sale. Any Advertising inventory that Neoforma appoints VerticalNet to arrange to sell shall not also be appointed to any third party to arrange for sale to third parties.

             7.1.2 VerticalNet will use commercially reasonable efforts to sell advertisements on the Neoforma Sites. The advertising policies (including rates and procedures) applicable to VerticalNet's sale of advertising for the Neoforma Sites will be established by Neoforma (the Neoforma Advertising Policies). Neoforma shall promptly notify VerticalNet of any changes to the Neoforma Advertising Policies.

             7.1.3 VerticalNet shall provide notice to Neoforma of each advertiser that agrees to place an advertisement on a Neoforma Site on the terms and conditions contained in the then current Neoforma Advertising Policies. Neoforma shall then have three business days after receipt of such notice to (a) accept or reject such advertiser, in its reasonable business discretion, and (b) notify VerticalNet of its decision. If, at the end of such three-day period, Neoforma has not responded to such notice, Neoforma shall be deemed to have accepted such advertiser. Neoforma shall then work with the advertiser to facilitate the placement of the advertisement and maintain such advertisement on the agreed-upon page of a Neoforma Site. Neoforma shall have the right to terminate its agreement with any such advertiser in its reasonable business discretion. Neoforma shall be responsible for, and shall have sole control of, all credit, billing and collection with the advertisements on the Neoforma Sites. VerticalNet shall have no authority to make collections on behalf of Neoforma.

             7.1.4 During the Term, Neoforma shall not place any advertisements on a Neoforma Site for any VerticalNet Competitor.

     7.2 ADVERTISEMENTS ON THE CO-BRANDED SITES.

                                    11    12

             7.2.1 During the Term, VerticalNet shall have the exclusive right to arrange for the sale of all advertising on the Co-Branded Sites, subject to reasonable approval of each such advertiser by Neoforma. Neoforma shall have two days to consider each VerticalNet request for approval of the sale of advertising on a Co-Branded Site. If, at then end of such two-day period, Neoforma has neither approved nor denied a request, VerticalNet's request shall be deemed approved.

Source: NEOFORMA INC, S-1/A, 12/2/1999





             7.2.2 VerticalNet will use reasonable efforts to sell advertisements on the Co-Branded Sites subject to VerticalNet's then current advertising policies (including rates and procedures).

8. CO-MARKETING ACTIVITIES

     8.1 ADVERTISING CAMPAIGNS. VerticalNet and Neoforma shall use commercially reasonable efforts to co-promote the VerticalNet Medical Online Communities, the Co-Branded Sites, the VerticalNet Buyer's Guide, Neoforma Plan, Neoforma Shop and Neoforma Auction in mutually agreeable advertising, collateral marketing material and sales force activities. All co-promotion advertising materials produced by or on behalf of either Party (the Originating Party) shall be subject to the written approval of the other Party (the Receiving Party), which approval shall not to be unreasonably withheld, delayed or conditioned. The Receiving Party shall notify the Originating Party of its approval or disapproval of such advertising materials as soon as practicable, but in any event within five business days after Receiving Party's receipt thereof. Any failure of the Receiving Party to respond within such five business day period shall be deemed disapproval of the advertising materials in question.

     8.2 REGISTRATION. The parties shall use commercially reasonable efforts to coordinate their registration systems to create a pass-through registration system for users first accessing the other's Sites. If a user first accesses a Neoforma Site from a VerticalNet Site, such user shall be considered a VerticalNet user for the purposes of this Agreement, to the extent such user identifies him/her/itself, or Neoforma can reasonably identify such user, as a VerticalNet user. If a user first accesses a VerticalNet Site from a Neoforma Site, such user shall be considered a Neoforma user for the purposes of this Agreement, to the extent such user identifies him/her/itself, or VerticalNet can reasonably identify such user, as a Neoforma user.

     8.3 CROSS-PROMOTION. The Parties shall place Links to each other's Sites in mutually agreeable locations and sizes on their respective Sites as soon as practicable, and in no event more than 15 days after the Effective Date. The Links shall remain on the Sites during the Term; provided, however, that such Links may be removed or relocated if the Parties mutually agree thereto.

     8.4 NEWSLETTERS.

             8.4.1 NEOFORMA NEWSLETTERS. If Neoforma distributes a newsletter to its users or customers, Neoforma shall promote the VerticalNet Auction, the Co-Branded Career Center and the Co-Branded Training and Education Center in each such newsletter, in a manner consistent with the manner in which other third party promotions are set forth in such newsletters.

                                    12    13

             8.4.2 VERTICALNET NEWSLETTERS. VerticalNet shall allow Neoforma to place sponsorships at no additional charge for Neoforma Shop, Neoforma Plan or Neoforma Auction in the VerticalNet newsletter distributed to its subscriber base two times during each calendar month, in a manner consistent with the manner in which other third party sponsorships are set forth in such newsletters.

     8.5 LINKS.

             8.5.1 Throughout the first six months after the Effective Date, VerticalNet shall place button Links to Neoforma Shop or Neoforma Auction on (a) [*] of all available third-party advertising inventory on the home pages of the VerticalNet Medical Online Communities. Thereafter, VerticalNet shall place button Links to Neoforma Shop or Neoforma Auction on unsold third-party advertising inventory (up to [*] of the total third party advertising inventory) on the home pages of the VerticalNet Medical Online Communities as frequently as VerticalNet places internal advertisements on such advertising inventory and (b) the site located at www.meddeals.com.

             8.5.2 Throughout the Term, VerticalNet shall place button Links to Neoforma Shop or Neoforma Auction on (a) the VerticalNet Buyer's Guides (as described in Section 2.7  [MEDICAL PRODUCTS]) and VerticalNet Auction, and (b) the News Analysis, Product Center and Discussion Forums portions of the VerticalNet Medical Online Communities.

9. INTELLECTUAL PROPERTY

     9.1 Except as set forth in Section 2.10  [MEDICAL PRODUCTS], nothing in this Agreement shall be construed as preventing VerticalNet from implementing VerticalNet Links on any other Site.

     9.2 Except as set forth in Sections 3.8  [LABORATORY PRODUCTS] and 5.8  [CO-BRANDED TRAINING AND EDUCATION SITE], nothing in this Agreement shall be construed as preventing Neoforma from implementing Neoforma Links on any other Site.

     9.3 VerticalNet hereby grants to Neoforma a non-exclusive, non-transferable, royalty-free, right and license to link to the VerticalNet Sites through a VerticalNet Link. VerticalNet shall furnish Neoforma with a full color representation of each VerticalNet Link at least two days prior to its scheduled placement on a page of the Neoforma Site. If VerticalNet subsequently modifies any VerticalNet Link or the URL associated with such VerticalNet Link, it shall furnish a representation of same to Neoforma, which Neoforma shall substitute for the prior version within two days after receipt thereof. VerticalNet shall have final approval over all VerticalNet Links on the Neoforma Site.

     9.4 Neoforma hereby grants VerticalNet a non-exclusive, non-transferable, royalty-free, right and license to link to the Neoforma Sites through a Neoforma Link. Neoforma shall furnish VerticalNet with a full color representation of each Neoforma Link at least two days prior to its scheduled placement on the Co-Branded Sites or a VerticalNet Medical Online Community. If Neoforma subsequently modifies any Neoforma Link or the URL associated with such Neoforma Link, it shall furnish a representation of same to VerticalNet, which VerticalNet shall substitute for the prior version within two days after receipt thereof. Neoforma shall have final approval over all Neoforma Links on the Co-Branded Sites or a VerticalNet Medical Online Community.

*Certain information on this page has been omitted and filed separately with the

Source: NEOFORMA INC, S-1/A, 12/2/1999





Commission. Confidential treatment has been requested with respect to the  omitted portions.

                                    13    14

     9.5 Except for the express rights granted to Neoforma under this Agreement, Neoforma acknowledges and agrees that the Intellectual Property of VerticalNet is and shall remain the sole property of VerticalNet and nothing in this Agreement shall confer in Neoforma any right of ownership or license rights in VerticalNet's Intellectual Property. In addition, Neoforma shall not now or in the future contest the validity of VerticalNet's Intellectual Property.

     9.6 Except for the express rights granted to VerticalNet under this Agreement, VerticalNet acknowledges and agrees that the Intellectual Property of Neoforma is and shall remain the sole property of Neoforma and nothing in this Agreement shall confer in VerticalNet any right of ownership or license rights in Neoforma's Intellectual Property. In addition, VerticalNet shall not now or in the future contest the validity of Neoforma's Intellectual Property.

     9.7 Neoforma agrees to use the VerticalNet Marks in accordance with the terms of this Agreement and with good trademark practices including, but not limited to, protecting the value of the goodwill residing in such Intellectual Property.

     9.8 VerticalNet agrees to use the Neoforma Marks in accordance with the terms of this Agreement and with good trademark practices including, but not limited to, protecting the value of the goodwill residing in such Intellectual Property.

     9.9 Except as explicitly set forth herein, nothing in this Agreement shall be construed as preventing either Party from developing other co-branded versions of its materials, data, information and content.

10. COMMERCIAL TERMS

     10.1 DEVELOPMENT FEE. On the Effective Date, Neoforma shall pay to VerticalNet a one-time, non-refundable fee in the amount of [*] in consideration of VerticalNet's design, development and implementation of the Co-Branded Sites pursuant to Sections 4.1  [CO-BRANDED CAREER CENTER] and 5.1  [CO-BRANDED TRAINING AND EDUCATION SITE], respectively.

     10.2 PROMOTIONAL FEES. In consideration of the performance by VerticalNet of its obligation to promote the Neoforma Shop, Neoforma Plan and Neoforma Auction under Section 8.2  [REGISTRATION], Neoforma shall pay to VerticalNet a promotional fee equal to [*], payable in eight equal quarterly and non-refundable installments of [*], with the first installment payable on the Effective Date, the second installment payable on the [*] month anniversary of the Effective Date, the third installment payable on the [*] month anniversary of the Effective Date, the fourth installment payable on the [*] month anniversary of the Effective Date, the fifth installment payable on the [*] month anniversary of the Effective Date, the sixth installment payable on the [*] month anniversary of the Effective Date, the seventh installment payable on the [*] month anniversary of the Effective Date and the eighth and final installment payable on the [*] month anniversary of the Effective Date.

     10.3 MEDICAL PRODUCTS LISTINGS.

             10.3.1 During each 12 month period during the Initial Term that commences on the Effective Date or an anniversary of the Effective Date (each, a Contract Year),

*Certain information on this page has been omitted and filed separately with the  Commission. Confidential treatment has been requested with respect to the  omitted portions.

                                    14    15

commissions shall accrue in an amount equal to [*] of any Medical Products Net Revenues during such Contract Year resulting from (a) any VerticalNet Medical Products Listing or (b) any Neoforma Medical Products Listing for which VerticalNet was the Transaction Origination Party. From and after the point when such accrued commissions equal [*] in any Contract Year (such [*] of accrued commissions shall not be payable by Neoforma), Neoforma shall pay to VerticalNet commissions equal to [*] of any Medical Products Net Revenues during such Contract Year resulting from (a) any VerticalNet Medical Products Listing or (b) any Neoforma Medical Products Listing for which VerticalNet was the Transaction Origination Party.

             10.3.2 After the Initial Term, Neoforma shall pay to VerticalNet commissions equal to [*] of any Medical Products Net Revenues during such Contract Year resulting from (a) any VerticalNet Medical Products Listing or (b) any Neoforma Medical Products Listing for which VerticalNet was the Transaction Origination Party.

     10.4 LABORATORY PRODUCTS LISTINGS. During the Term, VerticalNet shall pay to Neoforma commissions equal to [*] of any Laboratory Products Net Revenues during such Contract Year resulting from (a) any Neoforma Laboratory Products Listing or (b) any VerticalNet Laboratory Products Listing for which Neoforma was the Transaction Origination Party.

     10.5 CO-BRANDED SITES.

             10.5.1 CO-BRANDED CAREER CENTER. VerticalNet will pay Neoforma [*] of the Career Center Gross Margin. Career Center Gross Margin shall mean the listing fees related to the Neoforma Career Content and e-commerce revenue derived during the Term from users of the Co-Branded Career Center (less Deductibles).

             10.5.2 CO-BRANDED TRAINING AND EDUCATION CENTER. VerticalNet will pay Neoforma [*] of the Training and Education Gross Margin. Training and Education Gross Margin shall mean the listing fees related to the Neoforma T&E Content and e-commerce revenue derived during the Term from users of the Co-Branded Training and Education Center (less Deductibles).

     10.6 ADVERTISING REVENUE.

Source: NEOFORMA INC, S-1/A, 12/2/1999





             10.6.1 Except as set forth in Section 10.6.4  [ADVERTISING REVENUE], during the Term, VerticalNet shall not share any revenue derived from advertisements hosted on any VerticalNet Site with Neoforma; provided, however, that if Neoforma brings VerticalNet a Qualified Ad Lead (as defined below) for a new customer that turns into a sale of advertising on a VerticalNet Medical Online Community, VerticalNet shall pay to Neoforma a commission of [*] of the Net Advertising Revenue resulting from such sale of advertising. As used in this Section 10.6.1  [ADVERTISING REVENUE], a Qualified Ad Lead shall mean a customer referred to VerticalNet by Neoforma that is not, at the time of referral, a customer of VerticalNet, and which customer has agreed to place an advertisement on a VerticalNet Medical Online Community on the terms and conditions contained in VerticalNet's then current advertising policies.

*Certain information on this page has been omitted and filed separately with the  Commission. Confidential treatment has been requested with respect to the  omitted portions.

                                    15    16

             10.6.2 VerticalNet shall have the first right to sell renewals of Advertising originally sold by VerticalNet on the Neoforma Sites until 30 days after the then current term of such Advertising expires.

             10.6.3 Neoforma shall pay to VerticalNet a commission of [*] of the Net Advertising Revenue received during the Term for the initial placement and renewals of Advertising sold by VerticalNet on the Neoforma Sites. In addition, if Neoforma sells Advertising to a third party on the Neoforma Sites independently from VerticalNet and if Neoforma previously rejected Advertising by such party when proposed by VerticalNet pursuant to Section 7.1.3  [ADVERTISEMENTS ON THE NEOFORMA SITE], or terminated without cause a prior agreement with such third party that had resulted from such a proposal by VerticalNet, then Neoforma shall pay [*] of the Net Advertising Revenue resulting from such Advertising during the Term to VerticalNet. Neoforma shall provide prompt notice to VerticalNet of each advertiser that has agreed with Neoforma to place an advertisement on a Neoforma Site.

             10.6.4 VerticalNet shall pay to Neoforma a commission of [*] of the Net Advertising Revenue received by VerticalNet during the Term for Advertising on the Co-Branded Sites.

     10.7 PAYMENT TERMS. Except as otherwise provided in this Agreement, each Party shall provide the other Party with all amounts due under this Agreement for the prior calendar quarter within 30 days after the end of each calendar quarter during the Term. Each payment shall be accompanied by a statement detailing the amount of applicable gross revenue received, the calculation of the amount due to the other Party and the amount of the payment accompanying such statement. All payments due to either Party hereunder shall be made in immediately available U.S. funds, without set-off or counterclaim, less any taxes, duties, charges, withholdings, restrictions or conditions of any nature imposed or levied by any governmental taxing or other authority.

     10.8 TAXES. All payments required under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments. When applicable, such taxes shall appear as separate items on a Party's invoice or statement of the other Party. Payment of such taxes or charges shall be the responsibility of the Party whose obligation it is under this Agreement to make the payment in respect of which such taxes are assessed, excluding any taxes based upon the other Party's net income. In lieu thereof, a Party shall provide the other Party with a tax or levy exemption certificate acceptable to the taxing or levying authority.

     10.9 AUDITS. During the 18-month period following the payment by one Party of any amount due under this Agreement to the other Party, the Party receiving payment (the Auditing Party) shall have the right, at its own expense, to have an independent Big Five accounting firm (the Auditor) audit the financial records of the other Party (the Audited Party) relating to such payment to verify the accuracy of the Audited Party's financial records in order to verify the amount of the payments owed and/or paid. The Auditing Party may cause the Auditor to perform such an audit not more than once in any 12-month period, unless a prior audit within the past two years revealed that the amount owed by the Audited Party to the Auditing Party was underpaid in excess of 8% of the amount owed, in which case an audit may be performed no more frequently than twice in any 12-month period. If the amount owed by the Audited Party to

*Certain information on this page has been omitted and filed separately with the  Commission. Confidential treatment has been requested with respect to the  omitted portions.                                        16    17

the Auditing Party was underpaid, the Audited Party shall pay the additional amount owed and all accrued interest thereon to the Auditing Party within 15 days of notice of such underpayment to the Audited Party. If the amount owed by the Audited Party to the Auditing Party was underpaid in excess of 10% of the amount owed, the fees of such audit shall also be paid to the Auditing Party within 15 days of notice of such to the Audited Party. If the amount owed by the Audited Party to the Auditing Party was overpaid, the Auditing Party shall return the excess amount paid to the Auditing Party within 15 days of notice of such underpayment to the Auditing Party. The Auditing Party shall give reasonable advance written notice to the Audited Party, and each audit shall be conducted during normal business hours and in a manner that does not cause unreasonable disruption to the conduct of business by the Audited Party.

     10.10 INTEREST. All payments not paid by the date such payments are due shall bear interest from the due date to the date payments are actually paid at the rate of the lower of (a) 1% per month or (b) the maximum rate permitted by law.

11. TERM AND TERMINATION

     11.1 AUTOMATIC RENEWAL. This Agreement will automatically renew at the end of the Initial Term or a subsequent renewal term on a year to year basis (each, a Renewal Term), unless either Party notifies the other at least 30 days prior to the end of the Initial Term or then current Renewal Term, as applicable, of its intention not to renew this Agreement (a Termination Notice).

Source: NEOFORMA INC, S-1/A, 12/2/1999





     11.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event any material breach of a material term of this Agreement by such other Party that remains uncured 30 days in the case of a breach of a payment obligation, or 45 days for all other breaches, after notice of such breach was received by such other Party; provided, however that if such breach is not reasonably capable of cure within the applicable cure period, the breaching Party shall have an additional 180 days to cure such breach so long as the cure is commenced within the applicable cure period and thereafter is diligently prosecuted to completion as soon as possible.

     11.3 UPON TERMINATION. Upon termination of this Agreement, (a) each Party's liability for any charges, payments or expenses due to the other Party that accrued prior to the date of termination shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date; (b) VerticalNet shall be responsible for all charges, payments or expenses incurred by it in connection with the removal of the Neoforma Links, Neoforma Content and Neoforma Product Listings from the Co-Branded Sites and all other VerticalNet Sites; (c) Neoforma shall be responsible for all charges, payments or expenses incurred by it in connection with the removal of the VerticalNet Links, VerticalNet Content and VerticalNet Product Listings from the Neoforma Sites; (d) all rights of Neoforma to use, display, reproduce or publish the VerticalNet Marks shall immediately cease, (e) all rights of VerticalNet to use, display, reproduce or publish the Neoforma Marks shall immediately cease, (f) all rights of Neoforma to use, display, reproduce and transmit the VerticalNet Content and VerticalNet Product Listings shall immediately cease and Neoforma shall, at VerticalNet's cost, return one copy of the VerticalNet Content and VerticalNet Product Listings for Medical Products to VerticalNet in electronic format and destroy all other copies of

                                    17    18

such content, (g) all rights of VerticalNet to use, create derivative works of, reproduce, display, perform and transmit the Neoforma Content and Neoforma Product Listings shall immediately cease and VerticalNet shall, at Neoforma's cost, return one copy of the Neoforma Content and the Neoforma Product Listings for Laboratory Products to Neoforma in electronic format and destroy all other copies of such content, (h) all rights of VerticalNet to arrange for the sale of advertising on the Neoforma Sites shall immediately cease, (i) VerticalNet shall retain ownership of the domain names and URLs at which the VerticalNet Sites (including, but not limited to, the Co-Branded Sites) are located, and (j) Neoforma shall retain ownership of the domain names and URLs at which the Neoforma Sites (including, but not limited to Neoforma Plan and Neoforma Shop) are located. If a Termination Notice is sent, the parties shall promptly meet to discuss a phase-out of the Co-Branded Sites and all Links and transfers of Product Listings set forth herein.

12. DISPUTE RESOLUTION

     12.1 NEGOTIATION AND ESCALATION. If any controversy or claim arises relating to this Agreement, the Parties will attempt in good faith to negotiate a solution to their differences, including progressively escalating any controversy or claim through senior levels of management. If negotiation does not result in a resolution within 30 days of when one Party first notifies the other of the controversy or claim, either Party may resort to arbitration under Section 12.2  [ARBITRATION].

     12.2 ARBITRATION. Any controversy or claim between the Parties concerning any breach or alleged breach of this Agreement or performance or nonperformance of any obligation under this Agreement which cannot be resolved by negotiation will be resolved by binding arbitration under this Section 12.2  [ARBITRATION] and the then-current Commercial Rules and supervision of the American Arbitration Association (the AAA). If any part of this Section 12.2  [ARBITRATION] is held to be unenforceable, it will be severed and will not affect either the duty to arbitrate or any other part of this Section 12.2  [ARBITRATION]. The arbitration will be held in Philadelphia, Pennsylvania, before a sole disinterested arbitrator who is knowledgeable in business information and the Internet and experienced in handling commercial disputes. The arbitrator shall be appointed jointly by the Parties hereto within 30 days following the date on which the arbitration is instituted. If the Parties are unable to agree upon the arbitrator within such 30-day period, the AAA shall be instructed to select such arbitrator within 15 days thereafter. The arbitrator's award will be final and binding and may be entered in any court having jurisdiction. The arbitrator will not have the power to award punitive or exemplary damages, or any damages excluded by, or in excess of, any damage limitations expressed in this Agreement. Issues of arbitrability will be determined in accordance solely with the federal substantive and procedural laws relating to arbitration; in all other respects, the arbitrator will be obligated to apply and follow the substantive law of the Commonwealth of Pennsylvania.

     12.3 EQUITABLE RELIEF. Notwithstanding anything to the contrary in this Agreement, in the event of an alleged violation of Article 13  [CONFIDENTIALITY] of this Agreement by either Party, the Party alleging such a violation may seek temporary injunctive or other appropriate equitable relief from any court of competent jurisdiction pending appointment of an arbitrator. The Party requesting such relief shall simultaneously file a demand for arbitration of the dispute, and shall

                                    18    19

request that the American Arbitration Association proceed under its rules for an expedited hearing.

     12.4 COSTS. Unless the arbitrator, if any, determines otherwise, each Party will bear its own attorneys' fees and other costs associated with the negotiation and arbitration provided for by this Article 12  [DISPUTE RESOLUTION], except that costs and expenses of the arbitrators shall be shared equally. If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings will pay all associated costs, expenses and attorneys' fees that are reasonably incurred by the other Party.

     12.5 TWO YEAR LIMITATION. Except for claims under Sections 15.4  [INDEMNIFICATION BY NEOFORMA] and 15.5  [INDEMNIFICATION BY VERTICALNET] hereof, neither Party may bring a claim or action regardless of form, arising out of or related to this Agreement, including any claim of fraud or misrepresentation, more than two years after the cause of action accrues or

Source: NEOFORMA INC, S-1/A, 12/2/1999





becomes known, whichever is later.

     12.6 CONFIDENTIALITY. In order to facilitate the resolution of controversies or claims between the Parties with respect to each Party hereto, such controversies or claims, including details regarding negotiations, arbitration and settlement terms, shall be treated as Confidential Information of the other Party hereto in accordance with Article 13  [CONFIDENTIALITY].

     12.7 REMEDIAL MEASURES. In the event of (a) any material remediable breach of this Agreement by the other Party which remains uncured 30 days after notice of such breach (other than a breach of a payment obligation) was received by the other Party or (b) any material breach which cannot be cured, the non-breaching Party may take reasonable remediable measures at the cost of the breaching Party without prejudice and in addition to any other rights arising from such breach. In addition, the non-breaching Party shall take reasonable steps to mitigate damages arising out of such breach.

13. CONFIDENTIALITY

     13.1 CONFIDENTIALITY OBLIGATIONS. Except as permitted elsewhere under this Agreement, each Party agrees to take Reasonable Steps (as defined below) (a) to receive and maintain the Confidential Information of the other Party in confidence, (b) not to disclose such Confidential Information to any third parties and (c) to promptly notify the disclosing Party upon learning of any law, rule, regulation or court order that purports to compel disclosure of any Confidential Information of the disclosing Party and to reasonably cooperate with the disclosing Party in the exercise of the disclosing Party's right to protect the confidentiality of such Confidential Information. Neither Party hereto shall use all or any part of the Confidential Information of the other Party for any purpose other than to perform its obligations under this Agreement. The Parties will take Reasonable Steps (as defined below) to ensure that their employees, representatives and agents comply with this provision. As used herein, Reasonable Steps means at least the same degree of care that the receiving Party uses to protect its own Confidential Information, and, in no event, no less than reasonable care.

     13.2 EXCLUSIONS. Nothing contained herein shall prevent a Party from disclosing Confidential Information pursuant to any applicable law, rule, regulation or court order; provided, however, that such Party complies with the notice provisions of Section 13.1(c)  [CONFIDENTIALITY OBLIGATIONS] to the

                                    19    20

extent permissible under applicable laws, rules, regulations or court orders. Such disclosure shall not alter the status of such information hereunder for all other purposes as Confidential Information.

     13.3 TERMINATION. Upon termination of this Agreement, all Confidential Information shall be returned to the disclosing Party or destroyed unless otherwise specified or permitted elsewhere under this Agreement. The confidentiality obligations contained in this Article 13  [CONFIDENTIALITY] shall survive termination of this Agreement for a period of three years.

     13.4 INJUNCTION. Each Party acknowledges and agrees that the provisions of this Article 13  [CONFIDENTIALITY] are reasonable and necessary to protect the other Party's interests in its Confidential Information, that any breach of the provisions of this Article 13  [CONFIDENTIALITY] may result in irreparable harm to such other Party, and that the remedy at law for such breach may be inadequate. Accordingly, in the event of any breach or threatened breach of the provisions of this Article 13  [CONFIDENTIALITY] by a Party hereto, the other Party, in addition to any other relief available to it at law, in equity or otherwise, shall be entitled to seek temporary and permanent injunctive relief restraining the breaching Party from engaging in and/or continuing any conduct that would constitute a breach of this Article 13  [CONFIDENTIALITY], without the necessity of proving actual damages or posting a bond or other security.

     13.5 PUBLICITY. Except as may be required by applicable laws, rules or regulations (including those arising under any securities laws), neither Party will originate any publicity, news release or other public announcement, written or oral, whether to the public press or otherwise, concerning the relationship between the Parties or the transactions described in this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. In the event disclosure is required by applicable law, rules or regulations, then the Party required to so disclose such information shall, to the extent possible, provide to the other Party for its approval (such approval not to be unreasonably withheld) a written copy of such public announcement at least five business days prior to disclosure. Notwithstanding the foregoing, either Party shall have the right to make a press release with respect to its entering into this Agreement; provided that such Party provides to the other Party a copy of the proposed press release no less than five business days prior to its proposed release and that the contents of such press release shall be subject to the other Party's consent, which consent shall not be unreasonably delayed or withheld.

14. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents, covenants and warrants to the other Party that:

     14.1 It has the corporate power to enter into this Agreement and to grant the rights and licenses granted herein and otherwise perform this Agreement;

     14.2 It is not a Party to any agreement or understanding and knows of no law or regulation that would prohibit it from entering into and performing this Agreement or that would conflict with this Agreement; and

     14.3 When executed and delivered by it, this Agreement will constitute a legal, valid and binding obligation of it, enforceable against it in accordance with this Agreement's terms.

                                    20    21

15. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION.

     15.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, VERTICALNET HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR

Source: NEOFORMA INC, S-1/A, 12/2/1999





STATUTORY, WITH RESPECT TO ANY AND ALL VERTICALNET DELIVERABLES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

     15.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEOFORMA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY AND ALL NEOFORMA DELIVERABLES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

     15.3 LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY OF ARTICLE 13, THE INDEMNIFICATION OBLIGATIONS OF NEOFORMA UNDER SECTIONS 15.4(c)  [INDEMNIFICATION BY NEOFORMA] AND (d) AND THE INDEMNIFICATION OBLIGATIONS OF VERTICALNET UNDER SECTION 15.5(c)  [INDEMNIFICATION BY VERTICALNET] AND (d), NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY OF ARTICLE 13, THE INDEMNIFICATION OBLIGATIONS OF NEOFORMA UNDER SECTION 15.4(c)  [INDEMNIFICATION BY NEOFORMA] AND (d) AND THE INDEMNIFICATION OBLIGATIONS OF VERTICALNET UNDER SECTION 15.5(c)  [INDEMNIFICATION BY VERTICALNET] AND (d), EACH PARTY'S LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED $1,000,000.

     15.4 INDEMNIFICATION BY NEOFORMA. Neoforma shall indemnify and hold harmless VerticalNet and its officers, directors, employees and agents from and against any and all losses, claims, damages, liabilities, obligations, penalties, judgments, awards, costs, expenses and disbursements, including without limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing or defending any action, suit, proceeding or investigation asserted by a third party, caused by, relating to, based upon, arising out of or in connection with (a) any breach by Neoforma of the representations, warranties or agreements made by it under this Agreement, (b) negligence, recklessness or intentional misconduct on the part of Neoforma or its Affiliates or its officers, directors, employees, agents or consultants, (c) any claim that the Neoforma Content, Neoforma Product Listings, Neoforma Sites or a Neoforma Mark violates, infringes or misappropriates any Intellectual Property Rights or any other right of any third party, or (d) the use of a VerticalNet Mark or a VerticalNet Deliverable outside of the license rights granted herein.

     15.5 INDEMNIFICATION BY VERTICALNET. VerticalNet shall indemnify and hold harmless Neoforma and its officers, directors, employees and agents from and against any and all losses,

                                    21    22

claims, damages, liabilities, obligations, penalties, judgments, awards, costs, expenses and disbursements, including without limitation, the costs, expenses and disbursements, as and when incurred, of investigating, preparing or defending any action, suit, proceeding or investigation asserted by a third party, caused by, relating to, based upon, arising out of or in connection with (a) any breach by VerticalNet of the representations, warranties or agreements made by it under this Agreement, (b) negligence, recklessness or intentional misconduct on the part of VerticalNet or its officers, directors, employees, agents or consultants, (c) any claim that the VerticalNet Content, VerticalNet Product Listings, VerticalNet Sites or a VerticalNet Mark violates, infringes or misappropriates any Intellectual Property Rights or any other right of any third party, or (d) the use of a Neoforma Mark or a Neoforma Deliverable outside of the license rights granted herein.

     15.6 INDEMNITEE OBLIGATIONS. Each person seeking to be reimbursed, indemnified, defended and/or held harmless under Sections 15.4  [INDEMNIFICATION BY NEOFORMA] or 15.5  [INDEMNIFICATION BY VERTICALNET] (each, an Indemnitee) shall (a) provide the Party obliged to indemnify such Indemnitee with prompt written notice of any claim, suit, demand or other action for which such Indemnitee seeks to be reimbursed, indemnified, defended or held harmless (each, a Claim), which notice shall include a reasonable identification of the alleged facts giving rise to such Claim; (b) grant such Party reasonable authority and control over the defense and settlement of any such Claim; and (c) reasonably cooperate with such Party and its agents in defense of any such Claim. Each Indemnitee shall have the right to participate in the defense of any Claim for which such Indemnitee seeks to be reimbursed, indemnified, defended or held harmless, by using attorneys of such Indemnitee's choice, at such Indemnitee's expense. Any settlement of a Claim for which any Indemnitee seeks to be reimbursed, indemnified, defended or held harmless under this Article shall be subject to the prior written approval of such Indemnitee, such approval not to be unreasonably withheld, conditioned or delayed.

     15.7 ESSENTIAL PART OF BARGAIN. The Parties acknowledge that the disclaimers and limitations set forth in this Article 15  [DISCLAIMER OF WARRANTY, LIMITATION OF LI...] are an essential element of this Agreement between the Parties and that the Parties would not have entered into this Agreement without such disclaimers and limitations.

16. MISCELLANEOUS

     16.1 GOVERNING LAW. This Agreement shall be governed by and interpreted under the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions.

     16.2 NO ASSIGNMENT. Except as otherwise set forth herein, neither Party shall transfer, assign or cede any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other Party, which consent may be withheld at the other Party's reasonable business discretion; provided, however, that either Party may transfer this Agreement without prior written consent of the other Party to an Affiliate or in connection with a merger or sale of all or substantially all of the stock or assets of such Party.

     16.3 GOOD FAITH. The Parties undertake to display to each other the utmost good faith, consistent with their respective rights and obligations set forth in this Agreement.

                                    22    23

     16.4 INDEPENDENT CONTRACTORS. In connection with this Agreement, each Party is an independent contractor. This Agreement does not, and shall not be construed to, create an employer-employee, agency, joint venture or partnership relationship between the Parties. Neither Party shall have any authority to act

Source: NEOFORMA INC, S-1/A, 12/2/1999





for or to bind the other Party in any way, to alter any of the terms or conditions of any of the other Party's standard forms of invoices, sales agreements, warranties or otherwise, or to warrant or to execute agreements on behalf of the other or to represent that it is in any way responsible for the acts, debts, liabilities or omissions of the other Party.

     16.5 NOTICES. All notices, reports, payments and other communications required or permitted to be given under this Agreement (each, a Notice) shall be in writing and shall be given either by personal delivery against a signed receipt, by express delivery using a nationally recognized overnight courier, or by facsimile. All Notices shall be properly addressed as follows, or to such other addresses as may be specified in a Notice given hereunder:

If to VerticalNet:                          with a copy to:

  Attn: General Counsel                       Attn: Mario V. Shaffer      VerticalNet, Inc.                           VerticalNet, Inc.      700 Dresher Road, Suite 100                 700 Dresher Road, Suite 100      Horsham, Pennsylvania 19044                 Horsham, Pennsylvania 19044      Fax No.: (215) 443-3336                     Fax No.: (215) 784-1960

If to Neoforma:                             with a copy to:

  Attn: Chief Financial Officer               Attn: Ralph M. Pais, Esq.      Neoforma, Inc.                              Fenwick & West LLP      3255-7 Scott Boulevard                      Two Palo Alto Square      Santa Clara, CA 95054                       Palo Alto, CA 94306      Fax No.: 408-549-6211                       Fax No.: 650-494-1417

A Notice shall be deemed to be effective upon personal delivery or, if sent via overnight delivery, upon receipt thereof. A Notice sent via facsimile is deemed effective on the same day (or if such day is not a business day, then on the next succeeding business day) if such facsimile is sent before 5:00 p.m. Philadelphia time and on the next day (or if such day is not a business day, then on the next succeeding business day) if such Notice is sent after 5:00 p.m. Philadelphia time.

     16.6 AMENDMENT OR MODIFICATION. No subsequent amendment, modification or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the Parties.

     16.7 ENTIRE AGREEMENT. This Agreement sets out the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, proposals, arrangements and communications, whether oral or written, with respect to the subject matter hereof.

                                    23    24

     16.8 SEVERABILITY. If any provision of this Agreement is held by a tribunal of competent jurisdiction to be illegal, invalid, or otherwise unenforceable in any jurisdiction, then to the fullest extent permitted by law (a) the same shall not effect the other terms or provisions of this Agreement, (b) such term or provision shall be deemed modified to the extent necessary in the tribunal's opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest extent the intent and agreements of the Parties set forth herein and (c) such finding of invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such term or provision in any other jurisdiction.

     16.9 NO WAIVER. Failure to enforce any term of this Agreement is not a waiver of future enforcement of that or any other term. No term or provision of this Agreement will be deemed waived and no breach excused unless such waiver or excuse is in writing and signed by the Party against whom enforcement of such waiver or excuse is sought.

     16.10 SURVIVAL. Sections 10.7  [PAYMENT TERMS]-10.10  [INTEREST], 11.3  [UPON TERMINATION] and 12-16; any payment obligations of the Parties hereunder accruing prior to the date of termination; and any other provision herein expressly surviving termination or necessary to interpret the rights and obligations of the Parties in connection with the termination of the term of this Agreement will survive the termination or expiration of this Agreement.

     16.11 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended to confer benefits, rights or remedies unto any person or entity other than the Parties and their permitted successors and assigns.

     16.12 WAIVER OF JURY TRIAL. Each Party hereby irrevocably waives all rights a Party may have to a trial by jury in any legal action or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby.

     16.13 TITLES. The headings appearing at the beginning of the Sections contained in this Agreement have been inserted for identification and reference purposes only and shall not be used to determine the construction or interpretation of this Agreement. The nomenclature of the defined terms in this Agreement shall only be used for the construction of this Agreement, and are not to be used for any other purpose, including, but not limited to, interpretation for accounting purposes.

     16.14 FORCE MAJEURE. Neither Party shall be held to be in breach of this Agreement by reason of a force majeure event, including, but not limited to, act of God, delay in transportation, fire, flood, earthquake, storm, war, act of a public enemy, civil commotion or any law, rule, regulation, order or other action by any public authority or any other matter reasonably beyond a Party's control. To the extent failure to perform is caused by such a force majeure event, such Party shall be excused from performance hereunder so long as such event continues to prevent such performance, and provided the non-performing Party takes all reasonable steps to resume full performance.

     16.15 COMPLIANCE WITH LAWS. Each Party shall comply with all prevailing laws, rules and regulations and obtain all necessary approvals, consents and permits required by the applicable

                                    24    25

Source: NEOFORMA INC, S-1/A, 12/2/1999





agencies of the government of the jurisdictions that apply to its activities or obligations under this Agreement.

     16.16 EXECUTION IN COUNTERPARTS, FACSIMILES. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, bear the signatures of both Parties hereto. For the purposes hereof, a facsimile copy of this Agreement, including the signature pages hereto, shall be deemed an original.

        [The remainder of this page is intentionally left blank.]

                                    25    26

IN WITNESS WHEREOF, the Parties to the Agreement by their duly authorized representatives have executed this Agreement as of the date first written above.

VERTICALNET, INC.                           NEOFORMA.COM, INC.

By: /s/ MARIA V. SHAFFER                    By: /s/ FREDERICK RUEGSEGGER    --------------------------------            ---------------------------------    Maria V. Shaffer    Vice President, Business Development      and International                      Title:  CFO                                                   ------------------------------

27

                                                                    EXHIBIT A

CATEGORIES OF LABORATORY PRODUCTS

PRODUCT GROUPING               PRODUCT CLASSIFICATION         POINTS TO - ----------------               ----------------------         ---------                                                          Analytical Instruments         Analytical Inst-other          Analytical Inst-other Analytical Instruments         Atomic Absorption              Atomic Absorption Analytical Instruments         Balances                       Balances Analytical Instruments         Chemistry Analyzers            Chemistry Analyzers Analytical Instruments         Chrom-Data                     Chrom-Data Analytical Instruments         Chrom-GC                       Chrom-GC Analytical Instruments         Chrom-HPLC                     Chrom-HPLC Analytical Instruments         Chrom-Other                    Chrom-Other Analytical Instruments         Chrom-TLC                      Chrom-TLC Analytical Instruments         Colorimeter                    Colorimeter Analytical Instruments         Computer Equipment             Computer Equipment Analytical Instruments         Electron Microscope            Electron Microscope Analytical Instruments         Electronics - Lab              Electronics - Lab Analytical Instruments         Elemental Analysis             Elemental Analysis Analytical Instruments         Infrared                       IR/UVVIS/XRAY Analytical Instruments         Mass Spectrometer              Mass Spectrometer Analytical Instruments         Particle Size                  Particle Size Analytical Instruments         pH / ISE                       pH / ISE Analytical Instruments         Physical Property Test         Physical Property Test Analytical Instruments         Polarimeter                    Polarimeter Analytical Instruments         Spectrophotometer              Spectrophotometer Analytical Instruments         Temperature Equip              Temperature Equip Analytical Instruments         Titrators                      Titrators Analytical Instruments         Universal Tester               Universal Tester Analytical Instruments         UV / VIS                       IR/UVVIS/XRAY Analytical Instruments         Viscometer                     Viscometer Analytical Instruments         X-Ray                          IR/UVVIS/XRAY Biotechnology                  Biotech-other                  Biotech-other Biotechnology                  Electrophoresis                Electrophoresis Biotechnology                  Fermenters                     Fermenters Biotechnology                  Microplates                    Microplates Biotechnology                  Molecular Biology              Molecular Biology Biotechnology                  Scintillation Counters         Scintillation Counters Clinical Laboratory            Clinical Lab - Other           Clinical Lab - Other Clinical Laboratory            Blood / Gas Analyzers          Blood / Gas Analyzers Clinical Laboratory            Blood Collection               Blood Collection Clinical Laboratory            Clinical Chemistry Analyzer    Clinical Chemistry Analyzer Clinical Laboratory            Hematology                     Hematology Clinical Laboratory            Medical Equipment              Medical Equipment Clinical Laboratory            Microbiology                   Microbiology

28

                                                      Clinical Laboratory            Other Body Fluid Analyzer      Other Body Fluid Analyzer Clinical Laboratory            Slide Stainers                 Histology Glassware                      Beakers                        Beakers Glassware                      Bottles                        Bottles Glassware                      Condensers                     Condensers Glassware                      Flasks                         Flasks Glassware                      Funnels                        Funnels Glassware                      Glass-other                    Glass-other Glassware                      Tubes                          Tubes Glassware                      Vials                          Vials Lab Equipment                  Animal Care                    Animal Care Lab Equipment                  Antiques                       Antiques Lab Equipment                  Autoclaves                     Autoclaves Lab Equipment                  Baths, Water/Oil/Dry           Baths, Water/Oil/Dry Lab Equipment                  Books/Manuals                  Books/Manuals

Source: NEOFORMA INC, S-1/A, 12/2/1999





Lab Equipment                  Centrifuge                     Centrifuge Lab Equipment                  Chillers                       Chillers Lab Equipment                  Cleaners                       Cleaners Lab Equipment                  Critical Environments          Critical Environments Lab Equipment                  Digesters                      Digesters/Mixers Lab Equipment                  Environmental Chambers         Environmental Chambers Lab Equipment                  Evaporators                    Evaporators Lab Equipment                  Filtration                     Filtration Lab Equipment                  Fraction Collectors            Fraction Collectors Lab Equipment                  Freeze Dry/Lyoph               Freeze Dry/Lyoph Lab Equipment                  Freezers / Refrigerators       Freezers / Refrigerators Lab Equipment                  Fume Hoods                     Fume Hoods Lab Equipment                  Furnaces                       Furnaces Lab Equipment                  Furniture - Lab                Furniture - Lab Lab Equipment                  Glove Boxes                    Glove Boxes Lab Equipment                  Heating Apparatus              Heating Apparatus Lab Equipment                  Histology                      Histology Lab Equipment                  Hotplates / Stirrers           Hotplates / Stirrers Lab Equipment                  Incubators                     Incubators Lab Equipment                  Lab Equipment - Other          Lab Equipment - Other Lab Equipment                  Liquid Handling / Pipettors    Liquid Handling / Pipettors Lab Equipment                  Metallurgical                  Metallurgical Lab Equipment                  Microtomes                     Histology Lab Equipment                  Mixers                         Digesters/Mixers Lab Equipment                  Mobile Lab                     Mobile Lab Lab Equipment                  Motors                         Motors Lab Equipment                  Optics                         Optics Lab Equipment                  Ovens                          Ovens Lab Equipment                  Petroleum Lab                  Petroleum Lab Lab Equipment                  Pharmaceutical                 Pharmaceutical Lab Equipment                  Photography                    Photography

29

                                                      Lab Equipment                  Process / Pilot                Process / Pilot Lab Equipment                  Pumps                          Pumps Lab Equipment                  Radioactivity                  Radioactivity Lab Equipment                  Recorders                      Recorders Lab Equipment                  Regulators / Gauges            Regulators / Gauges Lab Equipment                  Robotics                       Robotics Lab Equipment                  Safety                         Safety Lab Equipment                  Semi-Conductor                 Semi-Conductor Lab Equipment                  Shakers                        Shakers Lab Equipment                  Stirrers / Hotplates           Stirrers / Hotplates Lab Equipment                  Vacuum                         Vacuum Lab Equipment                  Valves / Fittings              Valves / Fittings Lab Equipment                  Water Purification             Water Purification LabSupplies                    Chemicals                      Chemicals LabSupplies                    Plasticware                    Plasticware LabSupplies                    Supplies                       Supplies Microscopes                    Image Analysis                 Image Analysis Microscopes                    Microscope Accessories         Microscope Accessories Microscopes                    Microscope Parts               Microscope Parts Microscopes                    Microscopes                    Microscopes Test/Measurement               Multimeter                     Multimeter Test/Measurement               Oscilloscopes                  Oscilloscopes Test/Measurement               Power Supply                   Power Supply Test/Measurement               Test/Meas-other                Test/Meas-other Test/Measurement               Timers/Controllers             Timers/Controllers Test/Measurement               Volt/Amp/Ohm Meters            Volt/Amp/Ohm Meters

30

                                                                    EXHIBIT B

31

                     [GRAPHIC OF WEB PAGE -- Features]

32

                                                                    EXHIBIT C

33

               [GRAPHIC OF WEB PAGE -- Vertical Side Pages]

34

                  [GRAPHIC OF WEB PAGE -- Specialty Shop]

35

                                                                    EXHIBIT D

LABORATORY PRODUCT LISTING TEMPLATE PRODUCT LISTING TEMPLATE

A Microsoft Excel Spreadsheet containing the following columns:

Source: NEOFORMA INC, S-1/A, 12/2/1999





- ----------- ----------- -------------- ---------- ---------------------- ----------- ----------- NAME        CATEGORY    MFG/BRAND      MODEL #    ORIGINAL ITEM PRICE    HEIGHT      WEIGHT - ----------- ----------- -------------- ---------- ---------------------- ----------- -----------                                                                     NAME        CATG        FLDA           FLDB       FLDC                   FLDD        FLDE - ----------- ----------- -------------- ---------- ---------------------- ----------- -----------

- ------------- ----------- -------------- ---------------- ------------------- ------------------ CAPACITY      QUANTITY    STARTING BID   RESERVE PRICE    BID INCREMENTS(1)   START DATE/TIME(2) - ------------- ----------- -------------- ---------------- ------------------- ------------------                                                                 FLDG          QNTY        MINB           RSRV             INCR                STRT - ------------- ----------- -------------- ---------------- ------------------- ------------------

(1) default is [*] (2) default is today

- --------------- -------- -------------- -------- ----------- ---------------- ------------------ DURATION(3)     ITEM #   APPROX. AGE    SKU      LOCATION    SALESPERSON      DESCRIPTION - --------------- -------- -------------- -------- ----------- ---------------- ------------------                                                              DAYE            FLD1     FLD2           FLDF     FLDH        FLDI             DESC - --------------- -------- -------------- -------- ----------- ---------------- ------------------

(3) default is 7 days

- --------------- --------------------- -------- ----------- ------------------ ------------------ SELLER ID#      IMAGE LOCATION - --------------- --------------------- -------- ----------- ------------------ ------------------                                                                 SELL            IMAG - --------------- --------------------- -------- ----------- ------------------ ------------------

*Certain information on this page has been omitted and filed separately with the  Commission. Confidential treatment has been requested with respect to the  omitted portions.    36

This page describes each of the fields used in the Excel spreadsheet for bulk uploads. Please put details in the spreadsheet named Bulk Upload Spreadsheet. It is very important that you do not change the field names or their order on the spreadsheet.

             - ----------------------------------------------------------------------------------------------- NAME*             The title by which you want the item called. i.e. Sartorius Microbalance.                   This field is 60 characters long but more details will fit in the                   description section. The name needs to be descriptive and distinct. There                   cannot be two items with the same name. Add a delineating feature such as                   model number or size to the name. - ----------------------------------------------------------------------------------------------- CATEGORY*         This field requires a number not word. See the enclosed list. If you do not                   find a category that fits your product, please contact us. We can add                   categories. - ----------------------------------------------------------------------------------------------- MFG/BRAND         Manufacturer or brand name - ----------------------------------------------------------------------------------------------- MODEL #           Model number - ----------------------------------------------------------------------------------------------- ORIGINAL ITEM     If known, this can be an incentive to buyers who then see your lower price. PRICE - ----------------------------------------------------------------------------------------------- HEIGHT            Include feet or inches. - ----------------------------------------------------------------------------------------------- WEIGHT            Include pounds or ounces. - ----------------------------------------------------------------------------------------------- CAPACITY          Specific information about the equipment i.e. x gallons/hr, y                   sheets/minute, etc. - ----------------------------------------------------------------------------------------------- QUANTITY*         This field requires only a number not each, case, etc. - ----------------------------------------------------------------------------------------------- STARTING          BID* This is the amount at which the bidding will start. It                   should be lower than your reserve price, if you set one.                   Please use whole dollars. - ----------------------------------------------------------------------------------------------- RESERVE PRICE     This is the amount you wish to receive for your product. If you set a                   reserve price, your item cannot be sold for less than the reserve. Please                   use whole dollars. - ----------------------------------------------------------------------------------------------- BID               INCREMENTS* $5 is the default, but feel free to change this to                   reflect your product's price using whole dollars. - ----------------------------------------------------------------------------------------------- START             DATE/TIME* This field must be filled out like the following                   example: 04/08/99 15:00 (MM/DD/YY 24:mm) A start time must be                   included. - ----------------------------------------------------------------------------------------------- DURATION*         The default for this field is 7 days. The options are 1, 3, 5, 7, 21 and 30. - ----------------------------------------------------------------------------------------------- ITEM #            Catalog number if the product came from a manufacturer's or distributor's                   catalog - ----------------------------------------------------------------------------------------------- APPROX. AGE       New, used, demo, reconditioned - ----------------------------------------------------------------------------------------------- SKU               Each, box, case

Source: NEOFORMA INC, S-1/A, 12/2/1999





- ----------------------------------------------------------------------------------------------- LOCATION          Where the equipment is currently located/resides. - ----------------------------------------------------------------------------------------------- SALESPERSON       For PaperExchange.com internal tracking. - ----------------------------------------------------------------------------------------------- DESCRIPTION       This field is only 1250 characters long. Use basic writing format here.                   Complete sentences are desired rather than a list of features. If you copy                   and paste from an outside source, please check to see that                   there are no tabs or returns in the paragraph. - ----------------------------------------------------------------------------------------------- SELLER ID#*       This is your six-digit ID number you received when you registered. - ----------------------------------------------------------------------------------------------- IMAGE             LOCATION A picture of your item is very helpful in selling                   your item and will greatly enhance its listing appearance. The                   picture needs to be in JPEG or GIF format. You can send these                   on a separate disk or email if desired. Please enclose a list                   delineating which picture goes with which item. - -----------------------------------------------------------------------------------------------                   *  indicates required fields

               ** indicates fields with fieldnames to be determined and whose position                   within the columns is to be determined

37

                                                                    EXHIBIT E

FORM OF CO-BRANDED CAREER CENTER

        [GRAPHIC OF WEB PAGE -- the global healthcare marketplace]

38

                                                                    EXHIBIT F

FORM OF CO-BRANDED TRAINING AND EDUCATION CENTER

        [GRAPHIC OF WEB PAGE -- the global healthcare marketplace]

Source: NEOFORMA INC, S-1/A, 12/2/1999 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
Example Output:
41022