EXHIBIT 2.3
EXECUTION COPY
CROSS LICENSE AGREEMENT
AGREEMENT, dated as of this 31st day of August, 2000, ("Effective
Date") by and between IMS Health Incorporated (hereinafter "IMS"), a Delaware
corporation with an address at 200 Nyala Farms, Westport, Connecticut 06880,
for and on behalf of the Affiliates listed in the Exhibits hereto, and
Synavant Inc. (hereinafter "ST"), a Delaware corporation, with an address at
3445 Peachtree Road, N.E., Suite 1400, Atlanta, Georgia 30326 for and on
behalf of the Affiliates listed in the Exhibits hereto.
RECITALS
WHEREAS, IMS, among other things, provides information services to the
pharmaceutical industry;
WHEREAS, ST , among other things, collects and makes commercially
available certain demographic and profiling information on health care
professionals (e.g., doctors, nurses, pharmacists) and health care providers
(e.g., hospitals, pharmacies, clinics) in various countries around the world
("Pharbase Services"); and
WHEREAS, IMS desires to provide certain health care data to ST for use
in connection with it's Pharbase(TM) Services, and ST desires to provide
information from it's Pharbase Services to IMS for use in it's information
services, all in accordance with and subject to the terms set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises herein contained, the parties agree as follows:
ARTICLE I - DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
specified:
1.1 "Affiliate" means any Entity which now or in the future controls, is
controlled by or is under common control with a party hereto.
1.2 "Contract Year" means each 12-month period commencing on September 1st
and ending on August 30th during the term of this Agreement.
1.3 "Desktop Media" means prescription pads, medical forms and other
similar promotional material which are provided to Prescribers at a
nominal charge or without charge, and which contain advertising
relating to one or more Legended Drugs.
1.4 "Entity" means any corporation, business trust, joint venture,
association, company, firm, partnership, government entity or other
entity.
1.5 "Healthcare Company" means (i) a manufacturer of Legended Drugs or any
Person licensed by such a manufacturer to market and sell Legended
Drugs ("Manufacturer") or an Agency; provided, however, that neither a
wholesaler of Legended Drugs, a pharmacy, nor a Person providing mail
service prescription drug programs shall be deemed a "Manufacturer";
(ii) a manufacturer of medical supplies and/or diagnostic equipment, or
any person licensed by such a manufacturer to market and sell medical
supplies and/or diagnostic equipment; (iii) a publisher of single or
multi-sponsored journals which are devoted to medicine, health care or
veterinary subjects ("Journals"); (iv) a publisher of Desktop Media, or
(v) a sponsor of continuing medical education ("CME") seminars,
conferences or courses or a publisher of CME materials.
1.6 "IMS Data" means certain data from IMS as further described in exhibits
attached hereto. Each exhibit forms a part of this Agreement. Terms and
conditions in said exhibit(s) shall supersede any conflicting terms and
conditions in this Agreement for only the specific IMS Data defined in
said exhibit(s).
1.7 "Legended Drugs" means drugs which under Federal, provincial, state or
national law require the written prescription of a doctor, osteopath or
other individual who has the authority to prescribe Legended Drugs.
1.8 "Materials" means (i) information, including promotional materials and
solicitation materials sent to a Prescriber, all of which relate to one
or more Legended Drugs of a Manufacturer or relate to medical supplies
and/or diagnostic equipment marketed by a Healthcare Company, (ii)
surveys or questionnaires sent to a Prescriber which either seek
information relating to the prescribing or practice profile of such
Prescriber or the use by such Prescriber of medical supplies or
diagnostic equipment; provided, however, that the use of such surveys
or questionnaire shall be subject to the terms of Paragraph 7(e)
hereof, (iii) Journals, (iv) Desktop Media, or (v) information,
including promotional materials, solicitation materials or course
materials, relating to CME.
1.9 "Pharbase Data" means certain data from ST as more fully described in
exhibits attached hereto. Each exhibit forms a part of this Agreement.
Terms and conditions in said exhibit(s) shall supersede any conflicting
terms and conditions in this Agreement for only the specific Pharbase
Data defined in said exhibit(s). In addition, Pharbase Data shall
include all other demographic and profiling information on health care
professionals (e.g., doctors, nurses, pharmacists) and health care
providers (e.g., hospitals, pharmacies, clinics) then in the possession
or control of ST, or any ST Affiliate, in any country. As any new
Pharbase Data or new fields of data for existing Pharbase Data
(collectively "New Data") comes into the possession or control of ST,
or any ST Affiliate, ST shall notify IMS of such New Data within five
(5) days following its availability to ST or the applicable ST
Affiliate, as the case may be, and the Pharbase Data shall include all
such New Data, without any change in fees, unless otherwise notified by
IMS to ST or to the applicable ST Affiliate.
1.10 "Prescriber" means a doctor, osteopath, dentist or other individual
with an address in the country identified in the applicable exhibits
who has the authority to prescribe Legended Drugs.
ARTICLE II - LICENSE TO IMS DATA
2.1 LICENSE GRANT
a. IMS hereby grants to ST a non-transferable and non-exclusive license
to IMS Data for use solely in accordance with the terms of Paragraph
2.3 hereof and subject to the other terms and conditions of this
Agreement. The license granted herein is not exclusive and nothing
contained in this Article II shall prohibit or restrict IMS from
licensing, selling or otherwise transferring IMS Data or any other
information to any other person or Entity or from using IMS Data or any
other information for its own purposes.
b. Notwithstanding the terms of Paragraph 2.1(a) above, the granting
and acceptance of each IMS Data license may be by IMS and ST, or an
Affiliate of either of them, as specified in the applicable exhibit.
2.2 IMS DATA
IMS shall provide the IMS Data to ST in accordance with the operational
procedures set forth in the applicable exhibit hereto. IMS will use its
reasonable efforts to process IMS Data in an accurate and complete
manner. IMS will promptly notify Licensee of any material inaccuracies
in such Data which become known to IMS in accordance with IMS's then
applicable internal procedures for data quality assurance.
2.3 USE OF IMS DATA
Subject to the other terms and conditions of this Agreement, the IMS
Data licensed hereunder shall be used by ST solely to update it's
Pharbase database(s) identified in the applicable schedule (the
"Authorized Pharbase Databases"); provided, however, any such updated
Pharbase database may only be used for the following purposes:
a. to select, on behalf of a Healthcare Company, a list of
Prescribers for the purpose of sending Materials, developed by
or on behalf of such Healthcare Company, to certain of such
Prescribers;
b. in connection with ST 's drug sampling services, to select, on
behalf of one or more Manufacturers, a list of Prescribers,
which list ST may use solely for the purpose of sending its
order form to certain of such Prescribers soliciting a request
from each of such Prescribers for a small quantity of Legended
Drugs of each of such Manufacturers (a "Form");
c. to select, on behalf of a publisher of Journals or a publisher
of Desktop Media, a list of Prescribers for the purpose of
determining advertisements to appear in a Journal or in
Desktop Media;
d. to select, on behalf of a Manufacturer, a list of Prescribers
for the purpose of sending Legended Drug samples of such
Manufacturer to certain of such Prescribers; or
e. for loading into the sales force automation systems of a
Manufacturer who is a customer of ST for such systems for use
in connection with electronic territory management by or on
behalf of such Manufacturer.
2.4. CONDITIONS APPLICABLE TO USE OF IMS DATA
a. Except as expressly provided in Paragraph 2.3, ST shall retain
the IMS Data and any information derived therefrom only within
the internal confines of ST 's own organization. ST shall not
provide any IMS Data to any third party, including but not
limited to a Healthcare Company or any affiliate of ST, except
as commingled with the Pharbase Data.
b. Notwithstanding anything to the contrary contained herein,
under no circumstances shall any IMS Data or any information
derived therefrom be provided by ST to any person or Entity
which has one or more lines of business engaged in the
licensing, selling or providing of access to data, information
or databases in competition with IMS or any Affiliate
("Competing Company"), or any person or Entity controlling,
controlled by or under common control with a Competing
Company, including but not limited to the Competing Companies
listed on Exhibit 3; provided, however, that nothing herein
shall preclude a Manufacturer from engaging the services of a
third party (including a Competing Company) to provide
services which require access to the Pharbase Data and in
connection therewith, ST authorizes access to Pharbase Data.
2.5. PROHIBITED USES OF IMS DATA
IMS does not grant, and ST does not receive, any title or other
interest in the IMS Data or any information derived therefrom,
including but not limited to the Limited Data, except for those rights
granted explicitly in this Agreement; all rights not expressly granted
to ST are reserved to IMS. Without limiting the generality of the
foregoing, under no circumstances shall ST use, possess, distribute, or
permit any other person or Entity to use, IMS Data received by ST in
connection with this Agreement, or any information derived therefrom,
including but not limited to the Limited Data, in any manner which:
a. is contrary to the terms of this Agreement or is otherwise not
expressly permitted by the terms of this Agreement;
b. will violate any law or regulation by such use;
c. will violate the contractual restrictions of any third party
identified by IMS pursuant to Paragraph 4.1 governing the use
of such third party's data incorporated within the IMS Data in
effect at the time of the use of such IMS Data, unless an
authorized representative of IMS provides ST with written
notice that such IMS Data is no longer subject to the
restrictions of such third party's agreement;
d. results in any analysis of the IMS Data, or any information
derived therefrom, which analysis (i) results in the
disclosure to a person or Entity of any information regarding
the mathematical algorithms, formulas, processes, or
statistical methods used by IMS to produce any of the IMS
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 IMS Data (other than the Pharbase Data), or
(iii) seeks to demonstrate that the IMS Data, or any
information derived therefrom, is inferior to any other data,
attempts to show any deficiency in such IMS Data or
information, or otherwise makes statements detrimental to IMS
or any of it's Affiliates concerning such IMS Data or
information;
e. results in the reverse engineering or disassembling of any of
the IMS Data; or
f. enhances, benchmarks, validates, compares with, authenticates,
verifies, supplements, or modifies any IMS Data except as
expressly provided in this Agreement.
ARTICLE III - LICENSE TO PHARBASE DATA
3.1 LICENSE GRANT
a. ST hereby grants to IMS a non-transferable and non-exclusive license
to Pharbase Data for use solely in accordance with the terms of
Paragraph 3.3 hereof and subject to the other terms and conditions of
this Agreement. The licenses granted herein are not exclusive and
nothing contained in this Article III shall prohibit or restrict ST
from licensing, selling or otherwise transferring Pharbase Data or any
other information to any other Person or from using Pharbase Data or
any other information for its own purposes.
b. Notwithstanding the terms of Paragraph 3.1(a) above, the granting
and acceptance of each Pharbase Data license may be by IMS and ST, or
an Affiliate of either of them, as specified in the applicable exhibit.
3.2 PHARBASE DATA
ST shall provide the Pharbase Data to IMS in accordance with the
operational procedures set forth in the applicable exhibit hereto. ST
will use its reasonable efforts to process Pharbase Data in an accurate
and complete manner. ST will promptly notify IMS of any material
inaccuracies in such Pharbase Data which become known to ST in
accordance with ST 's then applicable internal procedures for data
quality assurance.
3.3 USE OF PHARBASE DATA
Subject to the other terms and conditions of this Agreement, the
Pharbase Data licensed hereunder shall be used by IMS solely for the
following purposes: (a) to update its
prescriber databases; (b) to update its sales, prescription and market
research databases used principally in connection with the delivery of
sales management information services and market research services
(collectively the updated data described in (a) and (b) is hereby
referred to as the "Updated Databases"), and (c) to create derivative
works and license the Updated Databases and such derivative works to
third parties in connection with the delivery of one or more of the
services of IMS.
3.4. CONDITIONS APPLICABLE TO USE OF PHARBASE DATA
a. Except as expressly provided in Paragraph 3.3, IMS shall
retain the Pharbase Data and any information derived therefrom
only within the internal confines of IMS 's own organization.
IMS shall not provide any Pharbase Data to any third party,
including but not limited to a Healthcare Company or any
affiliate of ST, except as commingled with IMS information or
services.
b. Notwithstanding anything to the contrary contained herein,
under no circumstances shall any uncommingled Pharbase Data be
provided by IMS to any person or Entity which has one or more
lines of business engaged in: (i) sales force automation and
customer relationship management systems, (ii) implementation,
integration and consulting services relating to the foregoing,
(iii) direct marketing services (including direct mail and
interactive telephone marketing), and (iv) drug sample
accountability and distribution, in each case relating to the
pharmaceutical, biotechnology, diagnostics, medical / surgical
supply and health care industries, in competition with ST or
any Affiliate ("Competing Company"),or any person or Entity
controlling, controlled by or under common control with a
Competing Company, including but not limited to the Competing
Companies listed on Exhibit 4; provided, however, that nothing
herein shall preclude a Manufacturer from engaging the
services of a third party (including a Competing Company) to
provide services which require access to the Pharbase Data and
in connection therewith, IMS authorizes access to Pharbase
Data.
3.5. PROHIBITED USES OF PHARBASE DATA
ST does not grant, and IMS does not receive, any title or other
interest in the Pharbase Data or any information derived therefrom,
except for those rights granted explicitly in this Agreement; all
rights not expressly granted to IMS are reserved to ST. Without
limiting the generality of the foregoing, under no circumstances shall
IMS use, or permit any other person or Entity to use, Pharbase Data
received by IMS in connection with this Agreement, or any information
derived therefrom, in any manner which:
a. is contrary to the terms of this Agreement or is otherwise not
expressly permitted by the terms of this Agreement;
b. will violate any law or regulation by such use;
c. will violate the contractual restrictions of any third party
identified by ST pursuant to Paragraph 4.1 governing the use
of such third party's data incorporated within the Pharbase
Data in effect at the time of the use of such Pharbase Data,
unless an authorized representative of ST provides IMS with
written notice that such Pharbase Data is no longer subject to
the restrictions of such third party's agreement;
d. results in any analysis of the Pharbase 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
statistical methods used by ST to produce any of the Pharbase
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 Pharbase Data, or (iii) seeks to demonstrate
that the Pharbase Data, or any information derived therefrom,
is inferior to any other data, attempts to show any deficiency
in such Pharbase Data or information, or otherwise makes
statements detrimental to ST concerning such Pharbase Data or
information;
e. results in the reverse engineering or disassembling of any of
the Pharbase Data; or
f. enhances, benchmarks, validates, compares with, authenticates,
verifies, supplements, or modifies any data, products or
services of IMS or any other party except as expressly
provided in this Agreement.
ARTICLE IV - RESTRICTED DATA
4.1 Either party may identify to the other party in writing certain
elements of some or all of the Data which incorporates information
licensed to a party of this Agreement by a third party, and which Data
is subject to restrictions greater or different from the restrictions
set forth in this Agreement ("Restricted Data"). In addition to the
terms and conditions of this Agreement, the licensee hereunder agrees
to treat each element of Restricted Data in accordance with the terms
required by the third party. To the extent that any term of such a
third party agreement then in effect is more restrictive concerning the
use or disclosure of Restricted Data than the terms contained in this
Agreement concerning the use or disclosure of Data, then the terms of
such third party agreement shall control, but only with respect to the
use or disclosure, as the case may be, of Restricted Data.
4.2 In the event a party hereto identifies Restricted Data pursuant to
Paragraph 4.1 above as requiring an additional license and the licensee
fails to maintain the requisite license with the applicable third party
licensing such data which would permit licensee, at a minimum, a right
to use the Restricted Data provided hereunder in the manner
contemplated herein, then the licensor of such Data hereunder shall
have no further requirement to provide such Restricted Data under the
terms of this Agreement until such time as the receiving party obtains
such a license.
4.3 Each party hereto shall use its reasonable commercial efforts to avoid
third party restrictions which impair or restrict the rights of the
other party to use IMS Data or Pharbase data, as the case may be, as
otherwise permitted by the terms of Paragraph 2.3 and 3.3 respectively.
For purposes of the preceding sentence, "reasonable commercial efforts"
shall mean the use of reasonable commercial efforts by a party during
the term of this Agreement to obtain amendments or new agreements with
third parties so that such agreements do not impair or restrict a
party's rights under the terms of this Agreement in it's use of Data
licensed hereunder other than the applicable restrictions reflected in
Articles II and III.
ARTICLE V - CONFIDENTIALITY
5.1 ST hereby acknowledges that the IMS Data are proprietary to IMS
(collectively "IMS Confidential Information"), agree to protect the
proprietary and confidential nature of such IMS Confidential
Information and in connection therewith, will prohibit any access to or
copying or disclosure of any of the IMS Confidential Information during
the term of this Agreement and after termination of this Agreement,
except (a) that access to and disclosure of IMS
Confidential Information may be provided to those employees of ST, in
connection with the uses permitted ST as described in Article II who
require same to carry out such uses, and (b) as expressly permitted
under Paragraphs 2.4 of this Agreement. ST and any such other persons
who receive access to or disclosure of IMS
Confidential Information pursuant to the preceding sentence shall
maintain the strict confidentiality of such IMS Confidential
Information in the same manner as ST maintains the confidentiality of
its own confidential information, and ST will not disclose such IMS
Confidential Information except as expressly provided herein. In the
event any of such other persons fail to comply with the confidentiality
obligations contained in this Paragraph 5.1, ST shall promptly notify
an appropriate representative of such person in writing of such
failure, with a copy to IMS, within five business days after ST knows
or suspects such failure. ST shall promptly provide IMS with a copy of
any responses from such person to ST's notification. IMS shall have a
right to bring an action as an intended third party beneficiary to
enforce the terms and conditions of the agreement between ST and such
person with respect to obligations of confidentiality. In the event IMS
does not have rights as an intended third party beneficiary to bring an
action as contemplated in this Paragraph 5.1, ST agrees to cooperate
with IMS to pursue such third party for any material breach by such
person of the terms of such agreement. ST agrees that it will not ever,
either during the term of this Agreement or after its termination,
assert that IMS Data are not, were not or will not be proprietary to
IMS and subject to copyright held by IMS with the exception of elements
of third party data which are proprietary to the respective third party
and subject to copyright held by such third party.
5.2 IMS hereby acknowledges that the Pharbase Data are proprietary to ST
(collectively "ST Confidential Information"), agree to protect the
proprietary and confidential nature of such ST Confidential Information
and in connection therewith, will prohibit any access to or copying or
disclosure of any of the ST Confidential Information during the term of
this Agreement and after termination of this Agreement, except (a) that
access to and disclosure of ST Confidential Information may be provided
to those employees of IMS, in connection with the uses permitted IMS as
described in Article III who require same to carry out such uses, and
(b) as expressly permitted under Paragraphs 3.4 of this Agreement. IMS
and any such other persons who receive access to or disclosure of ST
Confidential Information pursuant to the preceding sentence shall
maintain the strict confidentiality of such ST Confidential Information
in the same manner as IMS maintains the confidentiality of its own
confidential information, and IMS will not disclose such ST
Confidential Information except as expressly provided herein. In the
event any of such other persons fail to comply with the confidentiality
obligations contained in this Paragraph 5.2, IMS shall promptly notify
an appropriate representative of such person in writing of such
failure, with a copy to ST, within five business days after IMS knows
or suspects such failure. IMS shall promptly provide ST with a copy of
any responses from such person to IMS's notification. ST shall have a
right to bring an action as an intended third party beneficiary to
enforce the terms and conditions of the agreement between IMS and such
person with respect to obligations of confidentiality. In the event ST
does not have rights as an intended third party beneficiary to bring an
action as contemplated in this Paragraph 5.2, IMS agrees to cooperate
with ST to pursue such third party for any material breach by such
person of the terms of such agreement. IMS agrees that it will not
ever, either during the term of this Agreement or after its
termination, assert that IMS
Data are not, were not or will not be proprietary to ST and subject to
copyright held by ST with the exception of elements of third party data
which are proprietary to the respective third party and subject to
copyright held by such third party.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES
6.1 IMS represents and warrants that it has the right and authority to
license the IMS Data to ST under this Agreement. EXCEPT AS EXPRESSLY
STATED IN THE PRECEDING SENTENCE AND APPENDIX 1, IMS MAKES NO WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE IMS DATA (INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OF SUCH IMS DATA OR
ITS FITNESS FOR ST'S PARTICULAR PURPOSE) AND FURTHER MAKES NO WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR
COMPLETENESS OF THE IMS DATA.
6.2 ST represents and warrants that it has the right and authority to
license the Pharbase Data to IMS under this Agreement. EXCEPT AS
EXPRESSLY STATED IN THE PRECEDING SENTENCE AND APPENDIX 1, ST MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE PHARBASE DATA
(INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OF SUCH
PHARBASE DATA OR ITS FITNESS FOR IMS'S PARTICULAR PURPOSE) AND FURTHER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE
ACCURACY OR COMPLETENESS OF THE PHARBASE DATA.
ARTICLE VII - LIMITATION OF LIABILITY
7.1 IMS's entire liability and ST's exclusive remedy for IMS's failure to
abide by the accuracy and completeness requirements of Paragraph 2.2
shall be for IMS to endeavor to correct, in accordance with IMS's then
applicable operating procedures for data quality assurance, any such
non-conformance which has been reported by ST to IMS in writing in a
timely manner in accordance with the applicable EXHIBIT.
Notwithstanding any injunctive relief which ST may be entitled to, IMS
shall not be liable for any indirect, consequential, punitive,
incidental or special damages to person, property or business which may
be caused by any use, failure to provide or unavailability of IMS Data
or any breach by IMS of its obligations hereunder (even if IMS has been
advised of the possibility of such damages). Under no circumstances
shall IMS's liability hereunder exceed the greater of (a) fifty
thousand dollars ($50,000), or (b) the amount paid by ST to IMS
hereunder in the immediately preceding twelve month period.
7.2 ST's entire liability and IMS's exclusive remedy for ST's failure to
abide by the accuracy and completeness requirements of Paragraph 3.2
shall be for ST to endeavor to correct, in accordance with ST's then
applicable operating procedures for data quality assurance, any such
non-conformance which has been reported by IMS to ST in writing in a
timely manner in accordance with the applicable EXHIBIT.
Notwithstanding any injunctive relief which IMS may be entitled to, ST
shall not be liable for any indirect, consequential, punitive,
incidental or special damages to person, property or business which may
be caused by any use, failure to provide or unavailability of Pharbase
Data or any breach by ST of its obligations hereunder (even if ST has
been advised of the possibility of such damages). Under no
circumstances shall ST's liability hereunder exceed the greater of (a)
fifty thousand dollars ($50,000), or (b) the amount paid by IMS to ST
hereunder in the immediately preceding twelve month period.
ARTICLE VIII - TERM/TERMINATION
The term of this Agreement shall be for a three year period commencing on the
date first written above. Notwithstanding the foregoing, either party shall have
the right to terminate this Agreement on thirty (30) days advance written notice
to the other party:
8.1 if such other party becomes insolvent, voluntarily files a petition
under any federal or state bankruptcy law for itself, has an
involuntary petition filed under any federal, provincial or state
bankruptcy law against it which is not removed within thirty (30) days
of filing, ceases operations for at least thirty (30) days with the
intent of winding up such party's business, or otherwise publicly
announces the termination of its operations; or
8.2 upon the sale of such other party, whether by merger, consolidation,
the sale of its stock or by the sale of all or substantially all of its
assets to a Competing Company or any person or Entity controlling,
controlled by or under common control with a Competing Company.
ARTICLE IX - FORCE MAJEURE
Neither party shall be deemed to have breached this Agreement or to be liable
for any damages caused by failure to perform or by delay in rendering
performance hereunder arising out of any occurrence or contingency beyond its
reasonable control, including but not limited to, (a) flood, earthquake, fire,
war, strikes, labor unrest, riot, civil commotion, power or communication line
failure, computer equipment failure or operational failure, (b) failure of
independent contractors under agreement with IMS to perform or a delay in such
performance, failures, delays or restrictions of sources from which information
or data is obtained, or failure of performance by Licensee, or (c)
prohibition(s) or restriction(s) imposed by applicable regulatory authority, the
judgment, ruling or order of a court or agency of competent jurisdiction, or the
enactment of or change in any law or regulation.
ARTICLE X - ADDITIONAL AGREEMENTS
10.1 IMS and ST each agree to keep the terms of this Agreement in confidence
and not disclose them to any other Person, except for those terms of
the Agreement required to be disclosed (i) pursuant to federal, state
or national laws or regulations including securities laws and their
related disclosure requirements, (ii) pursuant to judicial or
arbitration orders and proceedings, (iii) as may be required to perform
their obligations under this Agreement, or (iv) to each of IMS's and
Licensee's legal and financial representatives who need to know such
terms solely for the purpose of providing legal and financial advice to
each such party, respectively. This provision shall not prohibit either
party from disclosing the existence of this Agreement or that IMS is a
data source.
10.2 Under no circumstances shall this Agreement be construed as placing any
affirmative obligation on either party, express or implied, to collect
or continue to collect any data or information from any third party
from which the IMS Data or Pharbase Data is derived ("Source Data"). In
the event a party hereto determines, in its sole judgment and
discretion, to cease collecting any Source Data which will result in a
substantial reduction in the amount of, or cessation in, the Data
delivered hereunder, such party will provide written notice of such to
the other party hereto at least ninety (90) days prior to the date on
which such Source Data collection will cease, specifying the date or
dates at which it will cease collecting such Source Data and the amount
of Data that will be deleted as a result (the "Notice"). In such event,
the party hereto giving such Notice shall incur no liability to the
other party in connection therewith and, in the event the notifying
party ceases to collect all of such Source Data, then this Agreement
shall automatically terminate and be of no further force and effect
upon the effective date of such cessation.
ARTICLE XI - ARBITRATION
11.1 Each party shall designate a project manager to coordinate such party's
activities under this Agreement. Such project managers shall also, when
necessary, confer in order to resolve problems or disputes that may
arise in connection with each party's performance hereunder. If the
project managers cannot resolve such problems or disputes, such
problems or disputes shall be referred to each party's respective
senior management for discussion and resolution.
11.2 Subject to Paragraph 11.4, any controversy or claim arising out of or
relating to this Agreement, and which cannot be resolved in accordance
with the procedure set forth in the preceding paragraph, shall be
submitted to arbitration before a panel of three (3) arbitrators. The
arbitrators shall be selected and the arbitration conducted in
accordance with the _________________________. An award shall be
conclusive and binding if concurred in by two (2) of the arbitrators,
and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. The arbitrators shall
be required to deliver a written decision setting forth their findings
of fact and basis for their award. The arbitrators' award shall provide
for the payment of the arbitrators' expenses and fees, together with
other expenses incurred in the conduct of the arbitration proceeding
other than legal fees and expenses. However, the arbitrators shall
award the prevailing party reasonable attorneys' fees and other
expenses incurred in the arbitration proceeding in the event that the
arbitrators determine that either party acted in bad faith in
connection with either asserting a claim or a defense in the
arbitration proceeding itself.
11.3 The parties hereby agree to submit to the exclusive personal
jurisdiction and venue of the _______________________________ for
purposes of enforcing the agreement to arbitrate, providing provisional
relief pending the award, and entering judgment on the award. If for
any reason the aforesaid court does not have subject matter
jurisdiction, the parties alternatively agree to submit to the
exclusive personal jurisdiction and venue of the applicable court of
the _____________________ for the foregoing purposes. Nothing contained
in this paragraph shall preclude the arbitrators from granting, where
appropriate, injunctive or other provisional relief pending a final
award.
11.4 Notwithstanding the provisions of Paragraphs 11.2 and 11.3, any party
hereto may pursue any provisional remedy (including but not limited to
preliminary injunctive relief) to enforce its rights hereunder in the
courts designated in Paragraph 11.3. The parties shall have the right
to obtain such provisional injunctive relief from a court of law
designated in Paragraph 11.3 pending the determination and award in the
arbitration proceeding. The parties may seek injunctive relief either
restraining certain conduct or mandating certain conduct. This
Paragraph 11.4 shall not be deemed to limit the power of the
arbitrators to grant any remedy or relief the arbitrators deem just or
reasonable within the scope of this Agreement.
11.5 The parties agree that, immediately upon the designation of the
arbitrators, they will request the arbitrators that they set an
expedited schedule for the conduct of the arbitration proceeding such
that the proceeding is concluded within six months of the date of the
filing of a demand for arbitration and that an award shall be rendered
within thirty (30) days of the conclusion of the proceeding.
ARTICLE XII - DATA PROTECTION OBLIGATIONS
The parties agree to procure that those of their respective Affiliates
listed in Exhibits 1 and 2 hereto and which are established within the European
Union abide by the additional obligations set out in Appendix 1 as if they were
incorporated as terms and conditions of this Agreement.
ARTICLE XIII - MISCELLANEOUS
13.1 The parties hereto are independent contractors engaged in the operation
of their own respective businesses. Neither party is, or is to be
considered as, the agent or employee of the other for any purpose
whatsoever. Neither party has the authority to enter into contracts or
assume any obligations for the other party or make any warranties or
representations on behalf of the other party. Nothing in this Agreement
shall be construed to establish a relationship of co-partners or joint
venturers between the parties.
13.2 This Agreement (including the exhibits and Appendix 1) constitutes the
entire understanding between the parties and supersedes all proposals,
commitments, writings, negotiations and understandings, oral and
written, and all other communications between the parties relating to
the subject matter of this Agreement.
13.3 Either party may assign all or any portion of this Agreement to an
entity which is then an Affiliate and any such Affiliate may assign all
or any portion of this Agreement to an entity which is then a
Affiliate; provided, however, that any such assignment shall not
relieve the assigning party of its obligations under this Agreement.
This Agreement may not be assigned from ST to any other person or
Entity, whether by assignment by ST, by operation of law or otherwise
without the prior written consent of IMS which consent shall not be
unreasonably withheld. The sale or transfer of a majority of the
outstanding shares of Licensee, or the merger or consolidation of ST
with any other person or Entity, shall be deemed an attempt by ST to
assign its interests in this Agreement which shall first require the
prior written consent of IMS. Any assignment not expressly permitted
under this Paragraph 13.3 or which has not received the written consent
of the other party if required herein shall be void.
13.4 Should any part, term or condition hereof be declared illegal or
unenforceable or in conflict with any other law, the validity of the
remaining portion or provisions of this Agreement shall not be affected
thereby, and the illegal or offensive portions of this Agreement shall
be and hereby are redrafted to conform with applicable law in a manner
which is consistent with the original spirit and intent embodied in the
original executed copy of this Agreement, while leaving the remaining
portions of this Agreement intact.
13.5 The waiver by either party of a breach or violation hereof or remedy
provided herein shall not operate as or be construed to be a waiver of
any subsequent breach or violation hereof.
13.6 This Agreement (save for Appendix 1) shall be governed by and construed
in accordance with the laws of the __________________________ without
giving effect to principles of conflicts of law.
13.7 Nothing in this Agreement is intended to benefit and shall not be
deemed to benefit any person who is not a party hereto or to create any
third party beneficiary rights.
13.8 All notices pertaining to this Agreement or the performance of either
party hereunder shall be sufficient if in writing and sent by DHL or
other similar overnight courier service with receipted delivery
addressed to the other party at the address shown below or to such
other address as a party hereto shall supply to the other in writing:
If to IMS:
IMS HEALTH
7 Harewood Avenue
London, NW1 6JB
England
Attention: President, European Region
With a copy to:
IMS HEALTH
7 Harewood Avenue
London, NW1 6JB
England
Attention: Law Department
If to Licensee:
Synavant Inc.
3445 Peachtree Road, N.E.
Suite 1400
Atlanta, GA 30326
Attention: President
Such notice shall be effective upon receipt by the other party.
13.9 Neither party may under any circumstances utilize the name, trademarks,
or tradenames of the other, or any names, trademarks, or tradenames so
similar as likely to cause confusion, without the prior written notice
to, and express written approval of, the other. Notwithstanding the
preceding sentence, each party shall have a right to identify to any
person or Entity that the other party is a supplier and licensee of
Data hereunder.
13.10 Paragraph headings herein are for convenience only and do not control
or affect the meaning or interpretation of any terms or provisions of
this Agreement.
ARTICLE XIV - FEES
The annual fee payable by IMS for the services described in this
Agreement for each Contract Year shall be one million five hundred thousand
dollars ($1,500,000). ST shall invoice one quarter of the annual fee on a
quarterly basis in advance (i.e., ST shall invoice three hundred seventy-five
thousand dollars ($375,000) on or about September 1st, December 1st, March 1st,
and June 1st of each Contract Year). IMS shall pay the amount of each invoice
from ST within thirty (30) days from receipt of invoice by IMS. In no event
shall IMS deduct or set-off any amount(s) against any amount(s) owed to ST under
this Agreement without ST's prior written consent. If IMS fails to timely pay
any amount in accordance with the terms of this Agreement, IMS 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 IMS
agrees to pay, IMS 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 ST's income.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
IMS Health Incorporated: Synavant Inc.:
By: /s/ Matthew L. Friedman By: /s/ James C. Malone
---------------------------- --------------------------------
Name: Matthew L. Friedman Name: James C. Malone
Title: Vice President Title: Vice President