Exhibit 2.9
EXECUTION COPY
SHARED TRANSACTION SERVICES AGREEMENT
between
SYNAVANT, INC.
and
IMS HEALTH INCORPORATED
Dated as of August 31, 2000
SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"),
dated as of August 31, 2000 (the "Agreement Date"), by and between IMS Health
Incorporated, a Delaware corporation ("Service Provider") and Synavant Inc., a
Delaware corporation ("Recipient").
W I T N E S S E T H :
WHEREAS,
1. Service Provider and Recipient are being separated into two
separate and independent businesses by means of a spin-off (the "Distribution"),
pursuant to the Distribution Agreement, dated as of August 31, 2000 (the
"Distribution Agreement"), between the Service Provider and Recipient;
2. The target date of the Distribution is August 31, 2000, and
the actual date that the Distribution is effected shall be called the
"Distribution Date" herein;
3. Prior to the Distribution Date, Service Provider has
provided and various of Recipients predecessors and subsidiaries have purchased
the services, pursuant to various written and oral agreements, the Shared
Transaction Services described in this Agreement;
4. In order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date,
Service Provider has agreed to provide to Recipient, and Recipient has agreed to
purchase on behalf of itself and certain of it's U.S. and Canadian subsidiaries,
the Shared Transaction Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements of Service
Provider and Recipient set forth below, Service Provider and Recipient agree as
follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. DEFINITIONS. The following defined terms shall
have the meanings specified below:
(1) "Agreement" shall have the meaning set forth in the
preamble.
(2) "Agreement Date" shall have the meaning set forth in the
preamble.
(3) "Agreement Disputes" shall have the meaning set forth in
Section 12.1.
(4) "Alternative Provider" shall mean any alternative external
service provider selected by Recipient to provide services similar to the
Services following the expiration or termination of this Agreement.
(5) "Distribution" shall have the meaning set forth in the
Recitals.
(6) "Distribution Agreement" shall have the meaning set forth
in the Recitals.
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(7) "Distribution Date" shall have the meaning set forth in
the Recitals.
(8) "Effective Date" shall have the meaning set forth in
Article III.
(9) "Fees" shall mean those charges for the Services set forth
in Schedule E.
(10) "IMS HEALTH" shall have the meaning set forth in the
preamble.
(11) "Licensed Documentation" shall mean all documentation
that is used in connection with the operation of the Licensed Software.
(12) "Licensed Software" shall mean the software described in
Schedule D.
(13) "Parties" shall mean Service Provider and Recipient,
collectively.
(14) "Party" shall mean either of Service Provider or
Recipient, as the case may be.
(15) "Recipient" shall have the meaning set forth in the
preamble.
(16) "Recipient Data" shall mean all data or information
supplied by Recipient to Service Provider for processing or transmission in
connection with the Services.
(17) "Rules" shall have the meaning set forth in Section 12.2.
(18) "Service Provider" shall have the meaning set forth in
the preamble.
(19) "Service Provider Service Location" shall mean any
location from which Service Provider provides or performs the Services. The
Service Provider Service Locations as of the Agreement Date are located at
Allentown, PA.
(20) "Service Provider Software" shall mean the software and
related documentation (a) owned, acquired or developed by Service Provider used
in connection with providing the Services or (b) licensed or leased by Service
Provider from a third party which is used in connection with providing the
Services. The Service Provider Software includes the software set forth in
Schedule F.
(21) "Service" shall mean the Shared Transaction Services.
(22) "Shared Transaction Services" shall mean the services
described in Schedule B.
Section 1.02. REFERENCES. In this Agreement and the Schedules
to this Agreement:
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(1) the Schedules to this Agreement shall be incorporated in and
deemed part of this Agreement and all references to this
Agreement shall include the Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in
this Agreement shall mean "including, without limitation".
Section 1.03. HEADINGS. The article and section headings and
the table of contents are for reference and convenience only and shall not be
considered in the interpretation of this Agreement.
Section 1.04. INTERPRETATION OF DOCUMENTS. If there is a
conflict between this Agreement and the terms of any of the Schedules, the terms
of this Agreement shall prevail.
ARTICLE II
TERM OF AGREEMENT
This Agreement shall become effective on the Distribution Date
(the "Effective Date") and shall remain in effect (the "Term") thereafter unless
terminated by either party upon not less than three (3) months' prior written
notice; provided, however, that upon termination of the Agreement, Recipient
shall pay to Service Provider a lump sum amount equal to the balance that would
have been paid with respect to the charges incurred by Service Provider in
connection with its obligations under Sections 5.01 and 7.03 herein as if this
Agreement has not been terminated. In no event shall the Term extend beyond the
second anniversary of the Effective Date.
ARTICLE III
SERVICES
Section 3.01. SERVICES. Service Provider shall provide to
Recipient, and Recipient shall purchase from Service Provider, the Shared
Transaction Services at the levels of service set forth in Schedule B, provided
however, Recipient's annual purchases in all events will not be higher than
110%, nor be less than ninety percent (90%) of, the service level volumetrics
set forth in the 1999 service assessment. Services provided by the Service
Provider which are not specifically covered in this agreement will be rendered
at the market rates charged by PricewaterhouseCoopers for the equivalent level
of expertise and service.
Section 3.02. SENSITIVE SERVICES. Service Provider shall make
all scheduled tax payments accurately and in a timely manner. Service Provider
shall also accurately disburse funds on behalf of Recipient to vendors and
employees in accordance with the appropriate vendor terms and employee payrolls
provided by Recipient. Service Provider shall repay Recipient any erroneous
payment, interest or penalty resulting from an inaccurate or late payment under
this section attributable solely to it but its cumulative liability under this
section in any service year shall not exceed $10,000. Service Provider shall be
subrogated to Recipient's rights to the extent of any repayment and Recipient
shall cooperate with Service Provider in seeking reimbursement from any tax
authority, vendor or employee who shall have received an inaccurate or
misdirected disbursement.
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Section 3.03. PRIORITY. Service Provider shall provide the
Services to Recipient with respect to prioritizing, processing and recovery in
accordance with Schedule B.
Section 3.04. REPORTS. Service Provider shall provide
Recipient with the reports set forth in Schedule C according to the schedule set
forth in Schedule C. All completion dates for processing to take place in 2001
shall be agreed and established in the same manner as provided under this
Agreement for processing which will take place in 2000.
ARTICLE IV
RECIPIENT OBLIGATIONS
Section 4.01. GENERALLY. Recipient shall:
(1) comply with any reasonable instructions provided by
Service Provider to adequately provide the Services;
(2) comply with all applicable standards and procedures
applicable to the Service Provider Service Location;
(3) promptly report any operational or system problem to
Service Provider;
(4) provide the working environment, including space,
furniture, electricity, telephones and other infrastructure requirements for
Service Provider's employees located at Recipient's premises, if any.
Section 4.02. ASSOCIATED EQUIPMENT. Except to the extent
otherwise provided in any Schedule, Recipient shall maintain and be responsible
for all costs (including personnel, maintenance and repair) associated with
communications equipment (including terminals, communications hardware, modems
and telephone lines) that Recipient owns or operates and that are not located at
the Service Provider Service Location necessary to provide the Services or to
transmit the Recipient Data for processing at the Service Provider Service
Location.
Section 4.03. SECURITY. Service Provider shall be responsible
for authorizing Recipient's security access to Recipient's Data. Recipient's
Chief Financial Officer or his designee shall specify its employees with
security access. Recipient shall ensure that user accounts shall only be used by
the person for whom such account was created or other authorized personnel.
Recipient shall promptly inform Service Provider of any individual who is no
longer authorized to use the Services. Recipient acknowledges all services will
be rendered by the Service Provider and agrees it shall not contact the Service
Provider's Data Center other than for in emergency situations.
Section 4.04. BUSINESS PLANNING. During the term of this
Agreement, Recipient shall, within a reasonable period of time after such plans
are available, provide Service Provider with a detailed plan identifying any
changes in Recipient's business that may affect the Services or result in
additional capacity being required in order for Service Provider to provide the
Services to Recipient. Recipient's business plan provided to Service Provider
pursuant to this Section 4.4 shall be deemed confidential information of
Recipient.
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ARTICLE V
PROPRIETARY RIGHTS
Section 5.01. SERVICE PROVIDER SOFTWARE. All Service Provider
Software is, or shall be, and shall remain, the exclusive property of Service
Provider or its third party licensor and Recipient shall have no rights or
interests to the Service Provider Software. Service Provider shall obtain any
consents or approvals necessary in connection with Service Provider's use of the
Service Provider Software to provide the Services to Recipient. The Recipient
will be required to obtain and pay for any licenses required beyond those that
the service provider specifically takes responsibility for on Schedule D.
ARTICLE VI
DATA
Section 6.01. FORM OF DATA. All data submitted by Recipient to
Service Provider in connection with the Services shall be in the form
substantially similar to that submitted before the Distribution date, unless
otherwise agreed to in writing by the parties.
Section 6.02. OWNERSHIP OF DATA. The Recipient Data is and
shall remain the property of Recipient or its customers.
Section 6.03. OWNERSHIP OF MEDIA. Unless furnished to Service
Provider by Recipient, all media upon which Recipient Data is stored is and
shall remain the property of Service Provider. Recipient may, upon Service
Provider's consent, (1) provide Service Provider with a replacement for the
media upon which the Recipient Data is stored or (2) purchase such media from
Service Provider at the price specified by Service Provider.
Section 6.04. RESPONSIBILITY FOR DATA. Recipient is
responsible from the Agreement Date for (1) the accuracy and completeness of the
data submitted by Recipient in connection with the Services and (2) any errors
in and with respect to data obtained from Service Provider because of any
inaccurate or incomplete data submitted by Recipient to Service Provider.
Service Provider shall maintain the records and data submitted by Recipient in
such form as to readily allow their return at the termination or expiration of
the Agreement in either electronic or paper formats, as appropriate.
ARTICLE VII
FEES
Section 7.01. FEES. Recipient shall pay to Service Provider
through the end of the Term the fees set forth in Schedule E in respect of each
of the Shared Transaction Services. Commencing January 1, 2001, the fees for
each such Services shall increase (with no adjustment for volumetrics) by five
percent (5%), except for facilities costs and LAN support costs, the fees for
which shall increase by not more than the percentage increase imposed on Service
Provider by its landlord or LAN support vendor. Services provided by the service
provider which are not specifically covered in this agreement will be rendered
at the market rates charged by PricewaterhouseCoopers for the equivalent level
of expertise and service.
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Section 7.02. TIME OF PAYMENT. The Fees shall be paid by
Recipient on the last business day of each fiscal quarter that the Services are
provided to Recipient.
Section 7.03. SUBSTANTIAL CHANGE IN VOLUME. If Recipient's use
of a Shared Service increases above the level set forth in Schedule A, Service
Provider shall determine whether any additional hardware or software is
necessary to allow Service Provider to render the Shared Service. If Service
Provider and Recipient agree, under this Section 7.3, that additional hardware
or software is required, (1) Service Provider shall acquire upon Recipient's
request, such additional hardware or software on behalf of Recipient and
Recipient shall pay to Service Provider or to the supplier or third party
lessor, as may be applicable, the purchase or lease fees in respect of such
additional hardware or software, (2) Service Provider shall implement an
appropriate increase to the Fees and (3) the Parties shall establish a mechanism
for determining the costs to Service Provider of maintaining such additional
hardware or software beyond the initial Term and, if any, the extended Term and
Recipient shall pay such costs to Service Provider upon the expiration or
termination of this Agreement. Except as otherwise agreed in writing by the
Parties, all rights in and title to any hardware or software acquired by Service
Provider on behalf of Recipient and paid for by Recipient shall belong to
Recipient.
Section 7.04. TAXES. Recipient shall pay any value-added tax
and any tariff, duty, export or import fee, sales tax, use tax, service tax or
other tax or charge imposed by any government or government agency on Recipient
or Service Provider with respect to the Services or the execution or performance
of this Agreement.
Section 7.05. LATE PAYMENTS. Any fees or payments owing to
Service Provider under this Agreement remaining unpaid 30 days after their due
date shall bear interest at the prime rate plus two (2) percent per month, but
not exceeding the highest lawful rate of interest, calculated from the date such
amount was due until the date payment is received by Service Provider.
ARTICLE VIII
AUDITS
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review the Data Center processes and
procedures as well as the computer printouts and reports and other records of
Service Provider to the extent such books and records relate to the provision by
Service Provider of the Services. Any such review shall be conducted at
Recipient's sole expense. Service Provider shall perform periodic internal
control reviews of the activities at its service and data centers at its
expense. To the extent permitted by law or accounting rules, Recipient's
accountants shall be entitled to review the work papers resulting from such
internal control review.
ARTICLE IX
CONFIDENTIALITY
Neither Party shall use nor permit others to use the
confidential information of the other Party without its prior consent and shall
keep, and cause its consultants and advisors to
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keep, confidential all information concerning the other Party in its possession,
its custody or under its control, except to the extent (1) such information has
been in the public domain through no fault of such Party or (2) such information
has been later lawfully acquired from other sources by such Party or (3) this
Agreement or any other agreement entered into pursuant to this Agreement permits
the use or disclosure of such information, to the extent such information (a)
relates to the period up to the Distribution Date or (b) is obtained in the
course of providing or receiving the Services under this Agreement, and neither
Party shall without the prior consent of the other, otherwise release or
disclose such information to any other person, except such Party's auditors and
attorneys, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
Party has used commercially reasonable efforts to consult with the other Party
prior to such disclosure.
ARTICLE X
INDEMNITY
Section 10.01. Each Party shall indemnify and hold the other
Party harmless in respect of all claims, costs, expenses, damages and
liabilities (including reasonable attorney's fees) arising from the gross
negligence or willful misconduct, fraud, theft and illegal acts of the
employees, agents or other representatives of the indemnifying Party after the
Agreement Date.
Section 10.02. Each Party shall also indemnify and hold the
other harmless for the breach of its covenants or other obligations under the
Agreement which constitute gross negligence or willful misconduct. A breach of
the covenant of confidentiality under Article 9, above, shall not be indemnified
if the confidential information disclosed was protected under the same standard
of confidentiality used by the disclosing Party to protect its own confidential
information.
Section 10.03. Recovery under the provisions of sections 10.1
and 10.2, above, shall be the exclusive remedy of each Party for a breach of
this Agreement by the other and in no event shall either Party have any
liability to the other for any claims, losses, damages, judgments, costs or
expenses which the other Party may suffer or incur as a result of injuries to
personnel of such other Party or loss or theft or damage to any personal
property of such other Party at the Service Provider Service Location, except as
provided in 10.1, above.
ARTICLE XI
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
Section 11.01. WARRANTY. Service Provider warrants the
Services shall be substantially of the same type, quality and utilization levels
and provided with substantially the same degree of care and diligence as such
services had been provided to Recipient during the period prior to the
Distribution Date.
Section 11.02. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF
THE SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE
LICENSED DOCUMENTATION,
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EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Section 11.03. LIMITATION OF LIABILITY. Recipient acknowledges
the Services are provided by Service Provider (1) at the request of Recipient in
order to accommodate the Distribution, (2) with the expectation it is not
assuming any financial or operational risks, including those usually assumed by
a service provider. Accordingly, Recipient agrees Service Provider shall not be
liable for indirect, special, incidental or consequential damages, including
lost profits or savings, whether or not such damages are foreseeable, relating
to the Services or Service Provider's performance under this Agreement.
ARTICLE XII
DISPUTE RESOLUTION
Section 12.01. NEGOTIATION. In the event of a controversy,
dispute or claim arising out of, or in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including any claim based in contract,
tort, statute or constitution (collectively, "Agreement Disputes"), the
controllers, then the chief financial officers and, finally, the chief executive
officers of the Parties shall negotiate in good faith for a reasonable period of
time to settle such Agreement Dispute, provided such reasonable period shall
not, unless otherwise agreed by the Parties in writing, exceed 30 days from the
time the Parties began such negotiations; provided further, that in the event of
any arbitration in accordance with Section 12.2, the Parties shall not assert
the defenses of statute of limitations and laches arising for the period
beginning after the date the Parties began negotiations hereunder, and any
contractual time period or deadline under this Agreement to which such Agreement
Dispute relates shall not be deemed to have passed until such Agreement Dispute
has been resolved.
Section 12.02. ARBITRATION. If after such reasonable period
such general counsels are unable to settle such Agreement Dispute (and, in any
event, unless otherwise agreed in writing by the Parties, after 60 days have
elapsed from the time the Parties began such negotiations), such Agreement
Dispute shall be determined, at the request of a Party, by arbitration conducted
in New York City, before and in accordance with the then-existing International
Arbitration Rules of the American Arbitration Association (the "Rules"). In any
dispute between the Parties, the number of arbitrators shall be three. Any
judgment or award rendered by the arbitrators shall be final, binding and
nonappealable (except on grounds specified in 9 U.S.C. Section 10(a), as in
effect on the Agreement Date). If the Parties are unable to agree on the
arbitrators, the arbitrators shall be selected in accordance with the Rules;
provided that each arbitrator shall be a U.S. national. Any controversy
concerning whether an Agreement Dispute is an Agreement Dispute subject to
arbitration, whether arbitration has been waived, whether an assignee of this
Agreement is bound to arbitrate, or as to the interpretation or enforceability
of this Article 12 shall be determined by the arbitrators. In resolving any
dispute, the Parties intend that the arbitrators apply the substantive laws of
the State of New York, without regard to the choice of law principles thereof.
The Parties intend that the provisions to arbitrate set forth in this Section
12.2 be valid, enforceable and irrevocable. The Parties agree to
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comply with any award made in any such arbitration proceeding that has become
final in accordance with the Rules and agree to enforcement of or entry of
judgment upon such award, by any court of competent jurisdiction, including (1)
the Supreme Court of the State of New York, New York County, or (2) the United
States District Court for the Southern District of New York, in accordance with
Section 16.16. The arbitrators shall be entitled, if appropriate, to award any
remedy in such proceedings, including monetary damages, specific performance and
all other forms of legal and equitable relief; provided, however, the
arbitrators shall not be entitled to award punitive damages. Without limiting
the provisions of the Rules, unless otherwise agreed in writing by the Parties
or as permitted by this Agreement, the Parties shall keep confidential all
matters relating to the arbitration or the award, provided such matters may be
disclosed (a) to the extent reasonably necessary in any proceeding brought to
enforce the award or for entry of a judgment upon the award and (b) to the
extent otherwise required by law. Notwithstanding Article 32 of the Rules, the
losing Party in the arbitration shall be responsible for all of the costs of the
arbitration, including legal fees and other costs specified by such Article 32.
Nothing contained in this Section 12.2 is intended to or shall be construed to
prevent either Party, in accordance with Article 22(3) of the Rules or
otherwise, from applying to any court of competent jurisdiction for interim
measures or other provisional relief in connection with the subject matter of
any Agreement Disputes.
Section 12.03. CONTINUITY OF SERVICES AND PERFORMANCE. Unless
otherwise agreed in writing, the Parties shall continue to provide the Services
and honor all other commitments under this Agreement during the course of
dispute resolution pursuant to the provisions of this Article 12 with respect to
all matters not subject to such dispute, controversy or claim.
ARTICLE XIII
CONTINUED PROVISION OF SERVICES
Section 13.01. FORCE MAJEURE. Service Provider shall not be in
default of its obligations hereunder for any delays or failure in performance
resulting from any cause or circumstance beyond the reasonable control of
Service Provider, provided that Service Provider exercises commercially
reasonable efforts to perform its obligations in a timely manner. If any such
occurrence prevents Service Provider from providing any of the Services, Service
Provider shall cooperate with Recipient in obtaining, at Recipient's sole
expense, an alternative source for the affected Services, and Recipient shall be
released from any payment obligation to Service Provider in respect of such
Services during the period of such force majeure.
Section 13.02. BUSINESS RECOVERY. Service Provider shall
maintain a business recovery plan for the shared services center and data
center. Recipient shall communicate to Service Provider any subsequent changes
in its processes and systems requiring changes in the business recovery plan.
The costs of effecting any such change will be assumed by Recipient which will
receive copies of the revised business recovery plans upon completion. If a
disaster occurs affecting the Services, Service Provider shall implement the
business recovery plan and Recipient shall be responsible for its proportionate
share of any fees incurred by Service Provider in connection with implementing
the business recovery plan.
Section 13.03. FUTURE CHANGES. If, in the future, the Service
Provider incurs costs on the Recipient's behalf related to future changes in
technologies or systems applications, the
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Recipient will be responsible for those fees and the Service Provider will give
the Recipient three (3) months' notice of any such change.
ARTICLE XIV
TERMINATION
Section 14.01. EFFECT OF TERMINATION. Upon the termination of
this Agreement, Recipient shall pay to Service Provider, no later than the
effective date of such termination, the balance of the Fees due. Recipient shall
not be liable to Service Provider for any costs associated with a closure of the
Service Provider's service center should it decide to discontinue operating the
service center as a result of the termination or expiration of this Agreement.
ARTICLE XV
TERMINATION ASSISTANCE SERVICES
Upon the expiration or the effective date of termination of
this Agreement, Service Provider shall have no further obligation to provide the
Services to Recipient except that:
(1) for a period up to (a) 120 days prior to the expiration or
the effective date of termination of this Agreement and (b) 60 days following
the expiration of this Agreement or the effective date of termination of this
Agreement, Service Provider shall use reasonable efforts to cooperate, at
Recipient's expense, with (i) the Alternative Provider or (ii) Recipient, in
connection with the transfer of the Services, the Recipient Data, the Licensed
Software and the Licensed Documentation as provided in Section 5.2, from Service
Provider to the facilities of (x) the Alternative Provider or (y) Recipient, as
requested by Recipient;
(2) Service Provider will render to Recipient at its
incremental cost such assistance as is reasonably necessary to effect a
transition of the services provided under this agreement to an Alternate
Provider at a new location; and
(3) Service Provider will continue to prepare and forward to
Recipient for up to six months after the termination of services and at
Recipient's cost, tax returns, withholding statements (W-2), earnings statements
(1099) and other payroll filings related to the service period for the fee
previously established under the Agreement for such services.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01. NO WAIVERS. No failure on the part of either
Party to exercise and no delay in exercising any right or remedy hereunder shall
operate as a waiver thereof nor shall any single or partial exercise by a Party
of any right or remedy hereunder preclude any other right or remedy or further
exercise thereof or the exercise of any other right.
Section 16.02. CONSENTS, APPROVALS AND REQUESTS. Unless
otherwise specified in this Agreement, all consents and approvals, acceptances
or similar actions to be given by either
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Party under this Agreement shall not be unreasonably withheld or delayed and
each Party shall make only reasonable requests under this Agreement.
Section 16.03. PARTIAL INVALIDITY. In the event any of the
provisions of this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions of
this Agreement shall not be affected or impaired.
Section 16.04. NOTICES. All notices, designations, approvals,
consents, requests, acceptances, rejections or other communications required or
permitted by this Agreement shall be in writing and shall be sent via telecopy
to the telecopy number specified below. A copy of any such notice shall also be
sent by registered express air mail on the date such notice is transmitted by
telecopy to the address specified below:
If to Service Provider: IMS HEALTH Incorporated
200 Nyala Farms
Westport, CT 06880
Telecopy No.: (203) 222-4313
Attention: General Counsel
If to Recipient: Synavant Inc.
Telecopy No.: (404) 841-4115
Attention: Chief Legal Officer
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
Section 16.05. RELATIONSHIP. The performance by Service
Provider of its duties and obligations under this Agreement shall be that of an
independent contractor and nothing herein contained shall create or imply an
agency relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
Section 16.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
Section 16.07. COVENANT OF FURTHER ASSURANCES. The Parties
covenant and agree that, subsequent to the execution and delivery of this
Agreement and without any additional consideration, each of the Parties will
execute and deliver any further legal instruments and perform any acts which are
or may become reasonably necessary to effectuate this Agreement.
Section 16.08. ASSIGNMENT. This Agreement may not be assigned
by either Party, other than to an affiliate of such Party or pursuant to a
corporate reorganization or merger,
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without the consent of the other Party. Any assignment in contravention of this
Section 16.8 shall be void.
Section 16.09. ENTIRE UNDERSTANDING. This Agreement represents
the entire understanding of the Parties with respect to the Services and
supersedes all previous writings, correspondence and memoranda with respect
thereto, and no representations, warranties, agreements or covenants, express or
implied, of any kind or character whatsoever with respect to such subject matter
have been made by either Party to the other, except as herein expressly set
forth.
Section 16.10. SUCCESSORS. Subject to the restrictions on
assignment set forth in Section 16.8, this Agreement shall be binding upon and
inure to the benefit of and be enforceable against the Parties hereto and their
respective successors and assigns.
Section 16.11. AMENDMENTS. This Agreement can be modified or
amended only by a written amendment executed by both Parties.
Section 16.12. SURVIVAL. The provisions of Article 5, Article
8, Article 9, Article 10, Article 11, Article 12, Article 15, Section 6.2,
Section 6.3, Section 7.1, Section 7.2, Section 7.5, Section 14.2, Section 16.6,
this Section 16.12, Section 16.14 and Section 16.17 shall survive the expiration
or termination of this Agreement.
Section 16.13. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 16.14. GOOD FAITH AND FAIR DEALING. Each Party hereby
agrees that its performance of all obligations and exercise of all rights under
this Agreement shall be governed by the fundamental principles of good faith and
fair dealing.
Section 16.15. THIRD PARTY BENEFICIARIES. Each Party intends
that this Agreement shall not benefit or create any right or cause of action in
or on behalf of any person or entity other than Recipient and Service Provider.
Section 16.16. CONSENT TO JURISDICTION. Without limiting the
provisions of Article 12 hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 16.16. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any
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action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 16.17. NON-SOLICITATION. Recipient covenants and
agrees for a three year period commencing July 1, 2000 it will not employ or
solicit for employment any Service Provider employee working at the data centers
or shared services center or rendering services to Recipient without Service
Provider's prior written consent.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
IMS HEALTH INCORPORATED
By: /s/ MATTHEW L. FRIEDMAN
--------------------------
Name: Matthew L. Friedman
Title: Vice President
SYNAVANT INC.
By: /s/ JAMES C. MALONE
--------------------------
Name: James C. Malone
Title: Vice President
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