Agreement for Lead Identification

IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS AGREEMENT FOR LEAD IDENTIFICATION.  This Agreement is a binding, contractual agreement between You/Lead Identifier and Athena (as defined below).  This Agreement applies solely to Your/Lead Identifier’s provision of sales leads to Athena.

BY CLICKING THE BUTTON BELOW LABELED “YES, I AGREE”, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, YOU MUST CLICK THE BUTTON LABELED “NO, I DO NOT AGREE,” IN WHICH CASE YOU WILL NOT BE PAID FOR ANY QUALIFIED LEADS YOU PRESENT TO ATHENA.  YOUR CLICKING ON THE “YES, I AGREE” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS AGREEMENT AND YOUR CONSENT TO EXECUTE THIS AGREEMENT ELECTRONICALLY.  BY ACCEPTING THE AGREEMENT AS DESCRIBED ABOVE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER, AND (3) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR IF YOU HAVE NAMED A COMPANY, ON BEHALF OF THAT COMPANY, AND TO BIND LEAD IDENTIFIER TO THE TERMS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT.

Each payment will be accompanied by a calculation from Athena showing how the amount of that payment was derived.

1. This Agreement contains the entire agreement between the Parties concerning sales leads identified by Lead Identifier for Athena. This Agreement is not exclusive, and either Party may in its sole discretion enter similar arrangements with third parties. This Agreement is effective as of the Effective Date.


2. Defined Terms.
   "Agreement" means this Agreement for Lead Identification between the Parties.
   "Applicable Law" means all applicable federal and state laws and regulations.
   "Athena" means athenahealth, Inc., and its subsidiaries, 311 Arsenal St., Watertown, MA 02472;
   Tel: 617.402.1000; Fax: 617.402.1099.
   "Confidential Information" means any and all information belonging to a Party, or belonging to any third party (including, but not limited to, any client of that Party) and held in confidence by that Party, that is identified or treated by that Party or such third party as being of a confidential nature, or that would be reasonably understood to be of a confidential nature for a company in the health care or software industries (including, but not limited to, information consisting of or relating to business records; customer, distributor, and vendor lists; and marketing plans, business plans, financial information, and compensation arrangements). Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is or becomes publicly available (other than through unauthorized disclosure by the receiving Party); (b) is shown by written record to have been in the possession of or known to the receiving Party prior to its disclosure hereunder; (c) is shown by written record to have been independently developed by the receiving Party; or (d) is made available without restriction to the receiving Party by any person other than the disclosing Party or any of its directors, officers, employees, attorneys, or other advisors without breach of any obligation of confidentiality of such other person.
   "Effective Date" means the date this form is countersigned by Athena.
   "Go-Live Date" means the date a Qualified Lead first accesses and uses the athenaNet® system in a live production environment and receives all services from Athena, as set forth in the applicable Services Agreement.
   "Initial Meeting" means an in-person meeting with Athena or an in-person or remote Athena demonstration event for Services.
   "Lead Identifier" means the Athena client that accepted the terms of the Athena Master Services Agreement with respect to the athenaCoordinator services only, as part of this online signup process.  
   "Lead Locked" is the status of a medical practice when, as reflected in Athena’s customer relationship management system, (a) a third party has referred such medical practice to Athena as a prospective client; or (b) Athena is obligated to pay compensation to a third party in regard to such medical practice.
   "Party" means Athena or Lead Identifier. "Parties" means Athena and Lead Identifier.
   "Physician" means a full-time-equivalent physician that is registered by the Qualified Lead in question on athenaNet for use of Services on the Go-Live Date.
   "Provider" means a full-time-equivalent physical therapist or occupational therapist that is registered by the Qualified Lead in question on the athenaNet® system for use of Services on the Go-Live Date.
   "Qualification Date" means the date the Qualified Lead is deemed a Qualified Lead by Athena.
   "Qualified Lead" means a medical practice that, at the time that Lead Identifier identifies such medical practice to Athena and provides the requested information about such medical practice to Athena, is not (a) an Athena client; (b) in Athena’s active pipeline (as reflected in Athena’s customer relationship management system); (c) signing up under Lead Identifier’s services agreement with Athena (or the Athena services agreement of a related party to Lead Identifier); or (d) Lead Locked; provided, however, that Athena may, in its sole discretion opt to re-qualify a medical practice submitted by Lead Identifier as a Qualified Lead that is otherwise ineligible to be a Qualified Lead.  For the avoidance of doubt, a Qualified Lead is not a medical practice that Lead Identifier came into contact with through Lead Identifier’s participation in Athena’s National Showcase Program, National and Partner Dinner Events, Physician Maven activities, or other Athena promotional programs.
   "Service Fee Credit" means a credit to Lead Identifier’s Athena services invoice.
   "Services" means athenaCollector®, athenaClinicals®, and athenaCommunicator®.
   "Services Agreement" means an agreement for Services between Athena and a Qualified Lead.
   "Term" means the duration of this Agreement from the Effective Date until the Termination Date.
   "Termination Date" means the date this Agreement is terminated in accordance with Section 7 herein.


3. Athena is interested in identifying medical practices as potential sales leads to which it may sell Services. While this Agreement is in effect, if Lead Identifier locates a medical practice that it believes would be interested in Services, Lead Identifier may (in its sole discretion) (a) contact an Athena representative or field associate, or (b) provide the required information about the practice via the online form (accessed through a link provided by Athena), to the extent made available by Athena to Lead Identifier. Lead Identifier will provide the required information about such medical practice, including, but not limited to: the legal name, specific location(s), number of Physicians or Providers, type of business of medical practice, contact information details about medical practice’s interest in receiving information on Services, and other information that Athena reasonably needs to qualify that medical practice for its sales effort as a Qualified Lead. At any time during the Term, Athena may request that Lead Identifier certify and submit documentation that the medical practices submitted to Athena as potential Qualified Leads hereunder meet all requirements and do not conflict with any restrictions set forth in this Agreement. Athena shall conduct such sales effort with respect to Qualified Leads as it deems appropriate in its discretion with its own sales force, and is solely responsible for such effort, unless Lead Identifier’s assistance is requested by Athena.


4. Compensation.
   1. Athena will pay Lead Identifier a one-time fee of $200.00 for every Initial Meeting for Services with a Qualified Lead that occurs within 60 days from the Qualification Date. This per meeting fee will accrue in the month following the date on which the Initial Meeting occurred and such payments will be made within 30 days following the end of the month in which it accrues.
   2. If (i) Athena has an Initial Meeting with a Qualified Lead within 60 days from the Qualification Date and (ii) Athena signs a Services Agreement with a Qualified Lead within 6 months from the Qualification Date with respect to such Qualified Lead, then Athena will pay compensation to Lead Identifier as follows:
      1. Compensation for each Qualified Lead that is a medical practice with Physicians shall equal the sum of:
         1. for the first 10 Physicians, the product of (a) the applicable number of Physicians in such tier, multiplied by (b) $3,000; plus
         2. for the 11th to 20th Physicians, the product of (a) the applicable number of Physicians in such tier, multiplied by (b) $1,000, plus
         3. for the 21st and any additional Physicians, the product of (a) the applicable number of Physicians in such tier, multiplied by (b) $750.
      2. Compensation for each Qualified Lead that is a medical practice with Providers (that does not have any Physicians) shall equal the sum of:
         1. for the first 10 Providers, the product of (a) the applicable number of Providers in such tier, multiplied by (b) $1,500; plus
         2. for the 11th to 20th Providers, the product of (a) the applicable number of Providers in such tier, multiplied by (b) $500, plus
         3. for the 21st and any additional Providers, the product of (a) the applicable number of Providers in such tier, multiplied by (b) $375.
   3. Compensation will be sent via paper check to Lead Identifier at the address set forth at the end of this Agreement within 30 days following the end of the month in which it accrues. Compensation will accrue as follows:
      1. 25% at the time a Qualified Lead signs a Services Agreement; and
      2. 75% on the Go-Live Date.
5. No compensation will accrue or be paid to, or be accepted by Lead Identifier under this Agreement on account of any medical practice that executes a Services Agreement with Athena and:
   1. that charges, bills, or seeks reimbursement or payment on a cost basis from any third-party payment program or payer (government or otherwise) for all or any part of Services;
   2. to which Lead Identifier or any of its agents, employees, owners, or principals or any of their family members, directly or indirectly (i) operates, manages, or controls that medical practice; (ii) acts or serves as a purchasing agent, employee, officer, director, partner, trustee, member of the governing body, or attorney-in-fact of that medical practice; (iii) manages substantial activities of that medical practice or exercises substantial commercial influence over that medical practice’s affairs; (iv) owes a fiduciary duty or duty of fidelity in connection with that medical practice’s general business affairs or in connection with purchase of Services from Athena; or (v) is permitted or required to exercise purchasing discretion on behalf of or in favor of that medical practice;
   3. the offer, payment, receipt, or solicitation of compensation under this Agreement with respect to that medical practice as a sales lead is in violation of any law or of any legal duty to that medical practice; or
   4. to which Lead Identifier refers any patient, or arranges for the referral of any patient, for any item or service covered by any third-party payment program or payer (government or otherwise) if such referral is conditioned upon or tied to such medical practice purchasing Services.
6. Lead Identifier will not propose to Athena as Qualified Leads medical practices for which compensation may not be applied under Section 5, and the Parties will reasonably cooperate to identify any medical practices in advance of any payment hereunder. If either Party learns that payment has been made hereunder other than as permitted by this Agreement, it will promptly notify the other in writing, and the Parties will work together in good faith to unwind such payment; provided, however, that Lead Identifier will be required to refund to Athena such payment and cooperate in such other steps as are reasonably necessary to remedy the situation. If Lead Identifier provides consulting or administrative services to a medical practice other than as described above in Section 5, then, before proposing that medical practice as a Qualified Lead, it will (a) notify that medical practice in writing that Lead Identifier may receive compensation under this Agreement if such medical practice executes a Services Agreement with Athena and (b) promptly provide to Athena a copy of such notice.


7. This Agreement will have an initial term of 2 years from the Effective Date, and will automatically extend for additional consecutive one-year terms, unless either Party notifies the other no less than 60 days prior to the end of the then-current term that it is terminating this Agreement at the end of such term. Either Party may, in its sole discretion, terminate this Agreement on 60 days’ notice to the other with or without cause. In addition, either Party may terminate this Agreement upon 15 days’ notice following a material breach or default of the other Party, provided that such notice sets forth the breach or default with reasonable specificity and the breach or default is not cured within such 15 days (provided that such breach is of a curable nature). This Agreement will automatically terminate without notice or action of either party on the same date the Services Agreement between Athena and Lead Identifier terminates or expires, and if such termination is due to a material breach by Lead Identifier under such Services Agreement, then no compensation beyond that paid to Lead Identifier as of the Termination Date will be due or payable. If this Agreement is terminated by Athena due to a material breach or default of Lead Identifier, or if Lead Identifier terminates this Agreement in the absence of a material breach or default of Athena, then no compensation beyond that paid to Lead Identifier as of the Termination Date will be due or payable. Otherwise, Athena will pay to Lead Identifier any compensation that has accrued, but is unapplied, as of the Termination Date, as well as any compensation under the schedule of payments that would have become due during the 6 months immediately following the Termination Date had this Agreement not been terminated. All payments after the Termination Date will be applied on the same schedule as applies before termination.


8. Each Party will keep strictly confidential and use only for the purpose of performing its obligations under this Agreement any and all of the other Party’s Confidential Information that it receives in connection with its activities under this Agreement. The obligations under this Section 8 will survive termination of this Agreement and will continue in force for as long as the obligated Party retains the Confidential Information of the other.


9. This Agreement will be binding upon the successors and assigns of the Parties, provided that each Party may only assign its rights and obligations hereunder to its successor-in-interest as a matter of law in connection with a merger or consolidation involving that Party, or the acquisition of substantially all of the assets of that Party (in either event, provided that such assignment does not violate the terms of this Agreement and/or Applicable Law), or with the written consent of the other Party, such consent not to be unreasonably withheld.


10. In order for Lead Identifier to improve its ability to identify potential Qualified Leads, Athena will, at Lead Identifier’s reasonable request, familiarize Lead Identifier with the Services and answer any reasonable questions that Lead Identifier may have about the Services. Lead Identifier cannot participate in Athena’s National Showcase Program, National and Partner Dinner Events, Physician Maven activities, User Conference, or other Athena promotional programs with respect to any medical practices submitted by Lead Identifier as a potential Qualified Lead. Athena will not train or equip Lead Identifier regarding how to identify leads. Lead Identifier will not make any false or misleading statement to any medical practice about Athena or the Services. Lead Identifier will not have contact with any purchaser for purposes of directly promoting or selling Services.


11. Neither Party is, shall be, or will hold itself out as the other’s agent, employee, joint venturer, partner, subcontractor, distributor, dealer, franchisee, supplier, vendor, or representative, and neither the terms nor the performance of this Agreement shall create any such relationship. Each Party is a separate entity from the other, and its agents are not employees or agents of the other. Lead Identifier is not authorized to and shall not (a) act for, or make contracts for or binding on, Athena or represent to any third party that is has authority to do the same; (b) do business under Athena’s name; or (c) use any trademark, service mark, or tradename of Athena without Athena’s prior written consent. No provision of this Agreement will be for the benefit of or enforceable by any third party. Lead Identifier is solely responsible to pay or withhold, as appropriate, all deductions, taxes, and other charges and contributions arising in connection with any compensation that Lead Identifier receives under this Agreement and any payment that Lead Identifier makes to its employees or agents.


12. Under this Agreement, Lead Identifier is not required to provide leads to Athena, and Athena is not required to pursue any leads provided by Lead Identifier. Neither Party is required to devote any particular portion or length of time to the tasks outlined in this Agreement. Athena has the right for any reason or no reason and without liability or payment under this Agreement to refuse to contract with or to terminate or not renew a contractual relationship with any Qualified Lead, to modify or amend any contract with any Qualified Lead, to modify and set its fees, to forego fees, or to reduce or curtail services to any Qualified Lead. Lead Identifier is not a third-party beneficiary of any of the customer contracts or Services Agreements of Athena. Athena has the right to price and condition as it sees fit, the use of its own systems and services by its customers, without liability or payment under this Agreement; provided, however, that Athena will require written assurance from each Qualified Lead that enters a Services Agreement that such Qualified Lead is not a cost-based provider of health care and that no reimbursement for Services will be sought from any health program on a cost-reimbursed basis.


13. Lead Identifier represents, warrants, and covenants to Athena on a continuing basis throughout the Term that neither it nor any of its agents is authorized to or will:
    1. refer, steer, allocate, direct, solicit, request, or otherwise arrange for any patient visit, health care, medical item, or medical service with respect to any provider, physician, or supplier that is a customer or Qualified Lead of Athena as a condition of, or in consideration for, the Qualified Lead purchasing Services;
    2. share any portion of any compensation with a Qualified Lead or any person who is affiliated with a Qualified Lead;
    3. tie an Athena agreement with any Qualified Lead to, or condition an Athena agreement with, any Qualified Lead on any service from or payment to Lead Identifier or upon purchase, order, or lease of any other item or service reimbursable by any third-party payment program or payer;
    4. solicit, receive, offer, or pay anything of value, directly or indirectly, to or from any Qualified Lead in connection with entry by such medical practice into any contract with Athena, continuation of any contract with Athena, or acceptance of Services or items from Athena; or
    5. condition, withhold, or threaten to withhold anything of value to any Qualified Lead in connection with entry or consideration of entry by such medical practice into any contract with Athena, continuation of any contract with Athena, or acceptance of Services or items from Athena.
14. Lead Identifier further represents and warrants to Athena on a continuing basis throughout the Term that neither it nor any of its agents is (a) under sanction or conviction for any Medicaid or Medicare program offense; (b) the subject of any investigative or criminal, civil, administrative, or qui tam proceeding with respect to any allegation of such an offense; (c) party to any settlement or corporate integrity agreement with respect to any allegation of such an offense; or (d) excluded, disqualified, or debarred from participating in any government program. If at any time during the Term the foregoing representations and warranties should cease to be true, Lead Identifier will immediately notify Athena of such fact.


15. Neither Party will claim payment in any form, directly or indirectly, from any third-party payment program or payer for all or any part of any activity covered under this Agreement, or for the cost thereof, and neither Party will shift the financial burden of this Agreement to the extent that any cost reimbursement is claimed from any third-party payment program or payer by either of them or to the extent that either Party believes that any cost reimbursement is claimed or may be claimed by any third party from any third-party payment program or payer.


16. General Provisions.
    1. This Agreement constitutes the entire agreement between the Parties relating to the subject matter herein, and supersedes all prior agreements or understandings, whether explicit or implicit, that have been entered into before the Effective Date.
    2. Any amendment of this Agreement, and any waiver of a right or obligation hereunder or waiver of a breach of any provision hereof, must be in writing and signed by a duly authorized representative of each Party.
    3. If any term or provision of this Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not, to the extent permitted by Applicable Law, affect any other term or provision of this Agreement or invalidate or render unenforceable such other term or provision.
    4. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together will constitute one and the same agreement.
    5. This Agreement will be governed by the laws of the Commonwealth of Massachusetts applicable to agreements made and to be performed wholly within Massachusetts, without regard to its conflicts of laws principles. The Federal District Court for the District of Massachusetts or the business litigation section of the state superior court of Massachusetts will be the exclusive venue for any court proceeding between the Parties arising out of, or in connection with, this Agreement. The Parties hereby submit to and consent irrevocably to the jurisdiction of such courts for these purposes.
    6. All notices in connection with this Agreement shall be in writing and deemed given (a) upon personal delivery, (b) three days after being deposited in the U.S. mail, postage prepaid, or (c) one day after being sent by overnight courier, charges prepaid, in each case to the intended recipient’s address above or such other address as the intended recipient may provide from time to time by notice.
    7. Survival. Sections 2, 5, 6, 7, 8, 11, and 16 shall survive the termination or expiration of this Agreement.