EXHIBIT 2.13
[GRAPHIC]
INFORMATION SERVICES AGREEMENT
AGREEMENT NO.:MRS00-CON
This Information Services Agreement ("Agreement ") is effective as of
___________________ ("Effective Date") between:
IMS Health Incorporated,
North American Operations ("IMS")
660 West Germantown Pike
Plymouth Meeting, Pennsylvania 19462
and
CLARK-O'NEILL, INC. ("CLIENT")
- --------------------------------------------------------------------------------
ONE BROAD AVENUE
- --------------------------------------------------------------------------------
FAIRVIEW, NJ 07022
- --------------------------------------------------------------------------------
CLIENT hereby engages IMS to provide, and IMS agrees to provide, (a) Data, (b)
Software, (c) services to be provided by IMS to CLIENT in connection with any
Data or Software ("Services"), and (d) Documentation, subject to and in
accordance with the terms and conditions contained in this Agreement.
IMS Health Incorporated: Clark-O'Neill, Inc.:
By: By:
------------------------------------ ------------------------------------
Name: Name:
---------------------------------- ----------------------------------
Title: Title:
--------------------------------- ---------------------------------
IMS Health Incorporated
INFORMATION SERVICES AGREEMENT
1. LICENSE
Subject to the terms of this Agreement, IMS hereby grants to the
interactive marketing division of CLIENT formerly known as Clark O'Neil and
CLIENT hereby accepts, a non-exclusive, non-transferable license:
a. for data provided by IMS to CLIENT in any form (including
machine-readable form) under the terms of this Agreement ("Data") as
more specifically identified on Schedule 1 to make copies of
insubstantial parts of Data, to modify Data and to create derivative
works incorporating insubstantial portions of Data, all of which may
only be used solely for CLIENT's own direct benefit and internal use
ONLY in the United States (except that Scriptrac Data may be used in
Canada and Australia) (unless otherwise mutually agreed to in writing
by the parties and specifically set forth on Schedule 2) for CLIENT'S
interactive marketing division; provided, however, Masterfile Data
may only be used in conjunction with the Data and Services to which
it relates (e.g., USC codes may only be used with IMS market research
data). As used herein, the term "Masterfile Data" shall mean any Data
which categorizes, classifies or identifies products, procedures,
medical facilities, pharmacies, warehouses, distributors, prescribers
or other entities, activities or persons, and any information derived
therefrom.
b. for documentation and other textual and graphical material provided
by IMS to CLIENT in any form (including printed and machine-readable
form) relating to any Data, Software or Services ("Documentation") to
make copies of insubstantial parts of the Documentation, to modify
the Documentation and to create derivative works incorporating
insubstantial portions of the Documentation, all of which may only be
used solely for CLIENT's own direct benefit and internal use ONLY in
the United States (except that Scriptrac Data may be used in Canada
and Australia) (unless otherwise mutually agreed to in writing by the
parties and specifically set forth on Schedule 2) for CLIENT'S
interactive marketing division.
c. for any computer programs (i.e., any set of statements, instructions
or objects to be used directly or indirectly in a computer in order
to bring about a certain result) provided by IMS to CLIENT under the
terms of this Agreement for use with any Data, hereinafter
"Software", to operate Software in accordance with its documentation
solely for CLIENT's own direct benefit and internal use ONLY in the
United States for a purpose (or to achieve an effect) that is
described in the documentation and consistent with the terms and
conditions of this Agreement (unless otherwise mutually agreed to in
writing by the parties and specifically set forth on Schedule 2) for
CLIENT'S interactive marketing division. The Software may only be
copied, in whole or in part as may be necessary and incidental to use
on the licensed equipment, for archival and back-up purposes, or to
replace a worn or defective copy. The license for Software shall be
limited to executable code (unless expressly stated otherwise) and
shall be limited to use with Data. The Software may not be reverse
compiled, disassembled or otherwise reverse engineered. Any Data,
Documentation or Software copied by CLIENT, in whole or in part, and
any works derived in whole or in part from any Data or Documentation,
shall include any copyright and proprietary notices provided by IMS
with the respective Data, Documentation and Software and shall remain
subject to the terms and conditions of this Agreement. CLIENT is
expressly prohibited from sublicensing any Data, Documentation,
Software or any information or materials derived therefrom. IMS does
not grant, and CLIENT does not receive, any title or other interest
in any Data, Documentation or Software except for those rights
explicitly granted in this Agreement.
d. IMS does not grant, and CLIENT does not receive, an title or other
interest in the Data or any information derived therefrom, except for
those rights granted explicitly in this Agreement; all rights not
expressly granted to CLIENT are reserved to IMS. Without limiting the
generality of the foregoing, under no circumstances shall CLIENT use,
or permit any other person or company to use, Data received by CLIENT
in connection with this Agreement, or any information derived
therefrom, in any manner which:
I. is contrary to the terms of this Agreement or is
otherwise not expressly permitted by the terms of
this Agreement;
II. will violate any law or regulation by such use;
III. will violate the contractual restrictions of any
Association identified by IMS (e.g. AMA)
governing the use of such Association's data
incorporated within the Data in effect at the time
of the use of such Data, unless an authorized
representative of IMS provides CLIENT with written
notice that such Data is no longer subject to the
restrictions of such Association's agreement;
IV. results in any analysis of the Data, or any
information derived therefrom, which analysis (i)
results in the disclosure to one or more persons
of any information regarding the mathematical
algorithms, formulas, processes, or projection or
statistical methods used by IMS to produce any of
the Data, (ii) is used or made available for use
to promote or aid in the promoting of any data or
information which is not derived from the Data, or
(iii) seeks to demonstrate that the Data, or any
information derived therefrom, is inferior to any
other data, attempts to show any deficiency in
such Data or information, or otherwise makes
statements detrimental to IMS concerning such Data
or information;
V. results in the selection of Prescibers from whom a
Manufacturer, an Agency, CLIENT or any other
person solocits information on practice profiles
and/or prescribing activity for the purpose of
developing a database of practice and prescribing
profiles on individual Prescribers, except for the
solicitation of such information for the benefit
of (i) a single Manufacturer or (ii) a single
Healthcare Company that is a manufacturer or
markerer of medical supplies and/or diagnostic
equipment;
VI. applies one or more mathematical algorithms,
formulas or processes to any of the Data for the
purpose of estimating or projecting any new data
or information;
VII. results in the reverse engineering or
disassembling of any of the Data; or
VIII. enhances, benchmarks, validates, compares with,
authenticates, verifies, supplements, or modifies
any data, products or services of CLIENT or any
other party except as expressly provided in this
Agreement.
e. Prior to the execution of this Agreement, CLIENT received Market
Research Audits, software information and services from IMS. The
terms and conditions of this Agreement including but not limited to
Paragraph 1, 4 and 6 apply to all Market Research Audits, software
information and services presently in CLIENT'S possession except for
those audits, software, Scriptrac Data, information and services
which would be covered under the Xponent License Agreement dated
August _____, 2000.
2. OBLIGATIONS/AUDIT RIGHTS
a. IMS OBLIGATIONS. IMS will provide to CLIENT the Data, Software, and
Services described in Exhibit A hereto. IMS will also provide to
CLIENT under the terms of this Agreement such other Data, Software
and Services which may be ordered by CLIENT and accepted by IMS, at
IMS's then current rates, unless subject to another formal agreement
executed by authorized representatives of the parties. IMS will also
provide to CLIENT all Documentation which IMS customarily makes
available to its clients for the respective Data, Software and
Services received by CLIENT under this Agreement. IMS will provide
reasonable amounts of assistance in connection with CLIENT's use of
the Data and Software. Should additional assistance be required with
respect to any Data or Software, including formal training of any of
CLIENT's employees, such assistance shall be at IMS's then current
rates or at such other rates as the parties may agree upon in
writing.
b. CLIENT OBLIGATIONS. From time to time, IMS may request information
from CLIENT which IMS reasonably determines is needed to provide the
Data, Documentation, Software or Services. Upon receipt of IMS's
request, CLIENT shall endeavor to provide such information in its
possession or control to IMS in a timely manner at CLIENT's expense;
CLIENT hereby authorizes IMS to use such information in accordance
with the terms of the request and this Agreement. Notwithstanding
anything written in this Agreement to the contrary, CLIENT agrees to
abide by the terms of the IMS HEALTH Policies Defining Client
Responsibilities for Health Care Information in connection with
CLIENT's use and disclosure of Data. In the event Data licensed by
CLIENT under this Agreement is identified in Exhibit A as being
subject to third party terms and conditions, CLIENT will do such
acts and execute and deliver to IMS such further instruments as may
be required to give effect to such third party terms and conditions.
c. AUDIT. IMS shall have the right to undertake an audit and inspection
of the business, books and records of CLIENT upon five (5) days
notice to CLIENT for purposes of verifying CLIENT'S compliance with
it's obligations under this Agreement. CLIENT shall maintain
business records, books, account information,
computer logs, and related materials sufficient to permit IMS to
verify that CLIENT is in compliance with it's obligations under this
Agreement. Any inspection of CLIENT'S books and records, shall be
performed by IMS representatives and/or it's outside auditors. The
cost of such an inspection shall normally be at IMS's expense.
However, CLIENT'S shall bear the cost of an inspection and audit if
such inspection reveals default as any other material breach of the
terms of this Agreement.
3. PAYMENT/PRICING
IMS shall invoice one quarter of each annual fee identified in Exhibit A on
a quarterly basis in advance. Each other fee identified in Exhibit A shall
be invoiced by IMS in the manner specified in Exhibit A or, if not
specified therein, shall be invoiced by IMS in its entirety upon the
initial delivery of the applicable Data or Services. CLIENT shall pay the
amount of each invoice from IMS within thirty (30) days from receipt of
invoice by CLIENT. In no event shall CLIENT deduct or set-off any amount(s)
against any amount(s) owed to IMS under this Agreement without IMS' prior
written consent. If CLIENT fails to timely pay any amount in accordance
with the terms of this Agreement, CLIENT shall pay in addition to the
invoice amount, interest at the rate of eighteen percent (18%) per annum on
the unpaid balance beginning thirty-five (35) days from the date of the
invoice until such amounts are paid. In addition to any fees which CLIENT
agrees to pay, CLIENT shall have the exclusive responsibility for and
agrees to pay all applicable governmental sales, use, added value, ad
valorem or other similar taxes, duties, fees, levies or other governmental
charges now in force or enacted in the future, except for taxes based on
IMS's income.
4. CONFIDENTIALITY
a. CLIENT shall not, at any time during the term of this Agreement or
thereafter, communicate, disclose or provide to any third party, any
of the Data, Documentation or Software, the contents thereof, any
information or materials derived therefrom, information relating to
current or future IMS business plans, or any other information
provided by IMS to CLIENT which IMS identifies on or about the time
of its disclosure as confidential (collectively "IMS Confidential
Information"), except as expressly provided in this Agreement or
otherwise expressly authorized by IMS in writing. IMS shall not, at
any time while this Agreement is in effect or thereafter,
communicate, disclose or provide to any third party, any information
provided by CLIENT to IMS in connection with this Agreement which
CLIENT identifies on or about the time of its disclosure as
confidential (collectively "Client Confidential Information"),
except as expressly provided in this Agreement or otherwise
expressly authorized by CLIENT in writing. Each party hereto agrees
to treat the confidential information of the other as confidential
using the same degree of care used by the receiving party to protect
the receiving party's own confidential information, but in any event
not less than a reasonable degree of care.
b. CLIENT may furnish all or any part of the Data to its consultants
and independent contractors for use solely for the direct benefit of
CLIENT, provided such consultants/independent contractors are bound
in writing under terms and conditions which are substantially the
same in all material respects as the terms and conditions contained
in Paragraphs 4, 6, 7, 8, 9 and 10 of this Agreement applicable to
CLIENT; provided, however, any use or possession of Data by
consultants and/or independent contractors on behalf of CLIENT
occurring OUTSIDE of offices and facilities occupied and controlled
by CLIENT shall first require: (a) the prior express written
approval of IMS, which approval shall not be unreasonably withheld;
and (b) execution of an IMS Third Party Access Agreement by and
among CLIENT, its third party, and IMS.
c. This Paragraph 4 does not apply to any information (i) obtained from
an issued or registered patent, (ii) obtained from a printed
publication distributed to more than one hundred persons in North
America without obligation of confidentiality; (iii) independently
developed by or on behalf of the receiving party; or (iv) disclosed
to the receiving party without restriction by a third party not
having an obligation of confidence with respect to such information.
No combination of information will be deemed to be within any of the
above exceptions, whether or not the component parts of the
combination are within one of the above exceptions, unless the
combination itself is within one of the above exceptions.
5. TERM AND TERMINATION
a. This Agreement shall become effective as of the date written on the
first page of this Agreement. This Agreement shall continue in
effect through the delivery of all Data and Services identified in
Exhibit A for
the respective periods identified therein, and payment by CLIENT
for all such Data and Services, in accordance with the terms of this
Agreement. Upon termination of this Agreement, Paragraphs 1, 4, 6,
7, 8, 9 and 10 herein shall remain in effect and survive termination
of this Agreement; provided, however, in the event this Agreement is
terminated by IMS due to a breach by CLIENT of a material provision
of this Agreement, CLIENT shall return to IMS all copies of Data,
Documentation, and Software provided to CLIENT in connection with
this Agreement which are then in CLIENT's control or possession.
b. IMS may terminate this Agreement and any license granted to CLIENT
under this Agreement if (i) CLIENT fails to pay IMS any license fees
or charges; (ii) CLIENT becomes insolvent or seeks protection,
voluntarily or involuntarily, under any bankruptcy law; or (iii)
upon sale of CLIENT, whether by merger, consolidation, the sale of
it's stock or by the sales of all or substantially all of it's
assets to a direct or indirect competitor of IMS.
c. In the event of any termination of this Agreement or of any license
granted to CLIENT under this Agreement, IMS may (i) declare all
amounts owed pursuant to this Agreement to IMS, if any, to be
immediately due and payable; (ii) require that CLIENT cease any
further Use of the Software, Documentation, Data or any portion
thereof and copies of Data where termination is for cause; and/or
(iii) cease performance of all of IMS's obligations under this
Agreement without liability to CLIENT. Upon termination of one or
all of the licenses granted herein for any reason, CLIENT shall
cease usage of the specified licensed Software, Documentation or
Data in its control or possession, along with all copies of Data
where termination is for cause.
d. The rights and remedies of IMS pursuant to Paragraphs 5(b) and (c)
above shall be cumulative and in addition to all other rights and
remedies available to IMS in law or in equity.
6. LIABILITY/REMEDIES
a. Any Data provided by IMS will reflect or be based on data and
information provided by third parties. IMS requests from each third
party data supplier ("Data Supplier") that the information contained
in the Data be accurate, complete and timely. However, the Data
Suppliers do not warrant and shall not be liable for the accuracy,
completeness or timeliness of the Data. In addition, IMS disclaims
any liability arising from the inaccuracy, incompleteness or late
delivery of any Data, Documentation or Software unless due to IMS's
willful misconduct. IMS will not be responsible for the accuracy or
completeness of the Data, Documentation or Software due to changes
beyond its reasonable control. In no event shall IMS be liable for
any consequential, incidental or special damages, including but not
limited to third party claims, whether foreseeable or not, even if
IMS has been advised of the possibility of such damages. Any
reliance on or decisions based on Data, Documentation, Software or
Services is the sole responsibility of CLIENT.
b. The parties acknowledge and agree that a breach by either party of
the applicable provisions of Paragraph 4 above will cause the other
party and/or their respective affiliates irreparable injury and
damage which may not be compensable by money damages. Therefore, the
parties agree that the non-breaching party or its respective
affiliates shall be entitled to injunctive or other relief to
prevent such a breach and to secure enforcement of Paragraph 4 in
addition to any other remedies which may be available. In the event
this Agreement is terminated by CLIENT due to (i) a material breach
by IMS of Paragraph 2(a) after IMS failed to cure such breach or to
implement a mutually agreed upon plan for cure of the breach within
thirty (30) days of receipt of written notification of such breach,
or (ii) a material breach by IMS of Paragraph 4, CLIENT shall be
obligated to pay only for services rendered prior to such
termination and not yet paid to IMS pursuant to this Agreement. In
the event of termination of this Agreement due to a material breach
by CLIENT of Paragraph 4, CLIENT shall be obligated to pay (x) the
unpaid fees for any Data, Documentation, Software or Services
delivered to CLIENT under this Agreement prior to termination, and
(y) the unpaid fees for any Data, Documentation, Software or
Services to be delivered in the six months immediately following
such termination. Nothing in this Paragraph 6 shall be construed as
limiting the legal rights otherwise available to either party in the
event of a breach of this Agreement by the other party. All
remedies, fee reductions, penalties and credits which may be
available to either party in the event of a breach of this Agreement
by the other party, whether or not enumerated in this Agreement,
shall be cumulative.
7. REPRESENTATIONS AND WARRANTIES
a. CLIENT and IMS represent and warrant that they each have authority
to enter into this Agreement and to grant the rights and license(s)
provided herein.
b. IMS further warrants for a period of sixty (60) days from CLIENT's
receipt, that all Data provided under this Agreement will conform to
the applicable IMS published specifications prevailing at the time
of
shipment. IMS's entire liability and CLIENT's exclusive remedy for
any breach of this warranty shall be for IMS to endeavor to correct,
in accordance with IMS's operating procedures for data quality
assurance, any such non-conformance which has been properly reported
by CLIENT to IMS in writing within such sixty day period.
c. IMS further warrants that the media upon which any Data,
Documentation or Software resides when delivered to CLIENT shall be
free from defects in material and workmanship for a period of sixty
days after CLIENT's receipt. IMS's entire liability and CLIENT's
exclusive remedy for any breach of this warranty is to replace the
defective media, provided that CLIENT notifies IMS in writing of
such defect and returns to IMS the defective media during such sixty
day warranty period.
d. ALL THIRD PARTY DATA, DOCUMENTATION AND SOFTWARE WHICH MAY BE
PROVIDED BY IMS TO CLIENT IN CONNECTION WITH THIS AGREEMENT IS
PROVIDED ON AN "AS-IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND,
OTHER THAN THOSE AVAILABLE TO CLIENT FROM THE RESPECTIVE THIRD
PARTY, IF ANY.
e. THE WARRANTIES AND REPRESENTATIONS STATED WITHIN THIS AGREEMENT ARE
EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. IMS does not warrant that any Data,
Documentation, Software or Services provided by IMS to CLIENT will
meet the needs or objectives of CLIENT; CLIENT assumes sole
responsibility for its use, selection, and the suitability of the
Data, Documentation, Software and Services provided by IMS to CLIENT
to meet the needs and objectives of CLIENT.
8. ASSIGNMENT
Neither party may assign or transfer this Agreement or any of their
respective rights or obligations in connection with this Agreement to any
third party without the express written consent of the other party. CLIENT
may not transfer or sublicense any Data, Documentation or Software to any
third party without the express written consent of IMS. Any attempt to
assign, transfer or sublicense in breach of the foregoing shall be void.
Notwithstanding the prohibition in the previous two sentences of this
paragraph, IMS shall have the right to assign its rights and obligations
under this Agreement to any of its subsidiaries and affiliates, provided
that no such assignment shall relieve IMS of its obligations in this
Agreement if the assignee fails to perform. In addition, IMS shall have a
right to assign this Agreement (including by operation of law) to the
surviving party of any merger, acquisition, or reorganization to which it
is a party, or sale of all or substantially all of IMS assets. IMS agrees
to promptly notify the CLIENT in writing of any such assignment on or about
the time of its occurrence. This Agreement shall be binding upon and shall
inure to the benefit of the parties and any of their successors, and any
such successor shall be deemed substituted for the respective party under
the provisions of this Agreement. For the purposes of this Agreement, the
term "successor" shall mean any person, firm, corporation or other business
entity which at any time, whether by merger, acquisition, or otherwise,
acquires all or substantially all of the assets or business of a party to
this Agreement.
9. NOTICE
All notices, demands or other communications required solely in connection with
this Agreement shall be given and made in writing and shall be delivered
personally or sent pre-paid to the respective addresses set forth on the first
page of this Agreement (a) by certified or registered first class mail with
return receipt requested or (b) by an internationally-recognized common
carrier's overnight courier service (e.g., Airborne's Express One / Express
Pack). If such notice is to IMS, the notice shall be sent to the attention of
"Vice President, Sales". If such notice is sent to CLIENT, the notice shall be
sent to the attention of: Vice President, Finance ______________________.
10. MISCELLANEOUS
a. ENTIRE AGREEMENT. This Agreement and the attachments hereto
constitute all of the terms and conditions with respect to the
subject matter of this Agreement and supersede prior proposals,
agreements and representations related to the terms and conditions
described herein, whether written or oral. No modifications,
amendments or waiver of any of the provisions of this Agreement
shall be binding upon the parties unless made in writing and duly
executed by authorized representatives of CLIENT and IMS. 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 document. This Agreement shall take
precedence
over CLIENT's additional or different terms and conditions, to which
notice of objection is hereby given. Neither IMS's commencement of
performance nor delivery shall be deemed or construed as acceptance
of CLIENT's additional or different terms and conditions. The
headings of the paragraphs of this Agreement are used for
convenience only and shall not affect the meaning or interpretation
of the terms and conditions of this Agreement.
b. FORCE MAJEURE. Except for the obligation to pay money properly due
and owing, either party shall be excused from any delay or failure
in performance hereunder caused by reason of any occurrence or
contingency beyond its reasonable control, including, but not
limited to, failure of performance by the other party, earthquake,
labor disputes, riots, governmental requirements or actions,
inability to secure materials on a timely basis, failure of computer
equipment, failures or delays of sources from which information or
data is obtained and transportation difficulties.
c. WAIVER/SEVERABILITY. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance
by the other party of any of the provisions of this Agreement shall
in no way be construed to be a waiver of such provisions or to
affect either the validity of this Agreement, or the right of any of
the parties thereafter to enforce each and every provision in
accordance with the terms of this Agreement. If any provision of
this Agreement is held to be invalid or unenforceable by any
judgment of a tribunal of competent jurisdiction, the remainder of
such agreement shall not be affected by such judgment, and such
agreement shall be carried out as nearly as possible according to
its original terms and intent. However, if the original intent of
the parties cannot be preserved, this Agreement shall terminate upon
the effective date of such judgment.
d. GOVERNING LAW. This Agreement will be governed by the laws of the
Commonwealth of Pennsylvania without regard to its conflict of law
rules.
e. PUBLICITY. Neither party will originate any written publicity, news
release, or other public announcement relating to this Agreement
without the prior written approval of the other party; provided,
however, either party shall have the right to announce to the public
the existence of this Agreement, the general nature of services to
be provided (e.g., market research services, sales management
services), and the duration of this Agreement. No publicity, press
release or public announcement by IMS shall indicate CLIENT is
endorsing any of the IMS Data, Documentation, Software or Services
without the express written consent of CLIENT.
f. CLIENT DATA. Client Data refers to certain data provided by CLIENT
to IMS relating to direct sales of CLIENT's pharmaceutical products
by CLIENT to its customers. Client Data includes elements of data
reflecting CLIENT's weekly/monthly sales of pharmaceutical products
made to any unaffiliated party. In order to receive access to Sales
Management Information Services from IMS, CLIENT agrees to submit
Client Data. IMS will handle Client Data in accordance with
Paragraph 4 of this Agreement, subject to the restrictions outlined
in this paragraph. IMS may only use Client Data as follows: (i) for
inclusion, where applicable, in the collection of Data processes and
provided to CLIENT under this Agreement; and (ii) for use in any of
IMS's reports and services, provided such use is in a form that
masks the source of the Client Data (i.e., the Client Data must be
converted, standardized and merged with the data of third parties).
Without limiting IMS's rights under the preceding sentence, IMS may,
for example, use Client Data for the calculation and reporting of
(a) total market values (i.e., the combination of indirect, mail
order and/or direct sales distribution) and (b) direct sales totals
and indices (i.e., the combination of direct sales data from various
pharmaceutical companies) for the benefit of IMS's clients; provided
IMS ensures that CLIENT's direct sales data is converted and
standardized by IMS so that CLIENT is not identified as the source
of the data.