Exhibit 2.6
EXECUTION COPY
DATA AND TELECOMMUNICATIONS SERVICES AGREEMENT
BETWEEN
IMS HEALTH INCORPORATED
AND
SYNAVANT INC.
DATA CENTER LOCATION: Plymouth Meeting, PA
SERVICE PROVIDER: IMS Health
RECIPIENT: Synavant Inc.
SCHEDULES
Schedule A Services and Capacity Levels
Schedule B Service Levels
Schedule C Reports
Schedule D Recipient Software
Schedule E Fees
Schedule F Extended Term Charges
Schedule G Service Provider Software
Schedule H Termination Fees
Schedule I Disaster Recovery
Schedule J Recipient Obligations
DATA AND TELECOMMUNICATIONS SERVICES AGREEMENT (this
"AGREEMENT"), dated as of August 31, 2000 (the "Agreement Date"), by and between
IMS HEALTH INCORPORATED, a Delaware corporation ("IMS") and SYNAVANT INC., a
Delaware corporation ("ST").
W I T N E S S E T H:
WHEREAS, the Board of Directors of IMS has determined that it
is appropriate, desirable and in the best interests of IMS and its businesses as
well as of the shareholders of IMS to spin-off ST into an independent publicly
traded company (the "DISTRIBUTION");
WHEREAS, as part of the Distribution, IMS will be divesting
certain of its strategic technologies businesses;
WHEREAS, prior to the Distribution Date, IMS ("Service
Provider") has provided and ST ("Recipient") has purchased, pursuant to various
written and oral agreements, the Services described in this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date,
Recipient has agreed to purchase from Service Provider, the Services described
in this Agreement.
NOW, THEREFORE, in consideration of the agreements as set
forth below, it is agreed as follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTioN.
1.01 DEFINITIONS. The following defined terms shall have the
meanings specified below:
(1) "AGREEMENT" shall have the meaning set forth in the Heading.
(2) "AGREEMENT DATE" shall have the meaning set forth in the Heading.
(3) "AGREEMENT DISPUTES" shall have the meaning set forth in SECTION 12.01.
(4) "ALTERNATIVE PROVIDER" shall mean any alternative external service
provider selected by Recipient for the provision of services similar to
the Services following the expiration or termination of this Agreement.
(5) "DATA CENTER" shall mean Service Provider's data center located at
Plymouth Meeting, PA and any successor location.
(6) "DATA PROCESSING AND TELECOMMUNICATIONS SERVICES" shall mean the data
processing and telecommunications services described in SCHEDULE A.
(7) "DISTRIBUTION" shall have the meaning set forth in the Recitals.
(8) "DISTRIBUTION AGREEMENT" shall mean the Distribution Agreement, dated
as of August 31, 2000, by and among IMS and ST.
(9) "DISTRIBUTION DATE" shall mean the date on which the distributions to
effect the spin-off of ST are made under the Distribution Agreement.
(10) "EXTENDED TERM" shall have the meaning set forth in ARTICLE 2.
(11) "FEES" shall mean those charges for the Services set forth in SCHEDULE
E.
(12) "INITIAL TERM" shall have the meaning set forth in ARTICLE 2.
(13) "LICENSED DOCUMENTATION" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
(14) "LICENSED SOFTWARE" shall mean the software described in SCHEDULE D.
(15) "RECIPIENT" shall have the meaning set forth in the Recitals.
(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) "SERVICE PROVIDER" shall have the meaning set forth in the Recitals.
(18) "SERVICE PROVIDER SOFTWARE" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider that
is used in connection with the provision of the Services or (b)
licensed or leased by Service Provider from a third party which is used
in connection with the provision of the Services. The Service Provider
Software includes the software set forth in SCHEDULE G.
(19) "SERVICES" shall mean the Data Processing Services.
1.02 REFERENCES
. In this Agreement and the Schedules to this Agreement:
(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".
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.
1.04 INTERPRETATION OF DOCUMENTS.
In the event of a conflict between Agreement and the terms of
any of the Schedules, the terms of this Agreement prevail.
ARTICLE 2. TERM OF AGREEMENT.
The initial term of this Agreement shall commence on the
Distribution Date and shall continue until 12:00 midnight (Eastern Standard
Time) on August 30, 2001 (the "INITIAL TERM"), unless terminated earlier
pursuant to SECTION 14.01; PROVIDED, HOWEVER, that Recipient may, upon notice to
Service Provider at least ninety days prior to the expiration of the Initial
Term, extend the term of this Agreement for (1) one additional six-month period
at the charges set forth in SCHEDULE F (the "Extended Term").
ARTICLE 3. SERVICES.
3.01 SERVICES.
Service Provider shall provide to Recipient, and Recipient
shall purchase from Service Provider the Data Processing and Telecommunications
Services described in SCHEDULE A. The Services shall be 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. The
Services shall be provided at the levels of service set forth in SCHEDULE B.
3.02 PRIORITY.
Service Provider shall provide the Services to Recipient with
respect to prioritizing, processing and recovery in accordance with SCHEDULE B.
3.03 REPORTS.
Service Provider shall provide Recipient with the reports set
forth in SCHEDULE C according to the schedule set forth in SCHEDULE C.
3.04 NEW RELEASES AND VERSIONS OF THE SOFTWARE.
Except as provided in SCHEDULE A, Service Provider shall not
be required to provide, install or maintain any new releases or versions of the
systems software or the applications software. In the event that SCHEDULE A
includes Service Provider's
provision, installation and maintenance of the systems software or the
applications software, Service Provider shall, at the fees set forth in SCHEDULE
E, after any such release or version is commercially available, provide, install
on the machines used to provide the services after sufficient testing, and
maintain new releases and versions of the systems software and applications
software in use as of the Agreement Date. In the event that Service Provider
fails to provide, install or maintain any new releases or versions of the
systems software or the applications software in accordance with SCHEDULE A,
Service Provider shall be responsible for the payment of any incremental expense
incurred by Recipient in connection with such failure.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.01 RECIPIENT EQUIPMENT.
With respect to that equipment owned by Recipient, Recipient
shall:
(1) maintain all equipment, software and operational features at the same
level that was provided immediately prior to the Distribution Date, and
shall receive maintenance services from those third party service
providers that provided maintenance services to Recipient immediately
prior to the Distribution Date; and
(2) upon notice from Service Provider (which notice shall include Service
Provider's estimate of the costs, if any, of the enhancement or
modification) as soon as possible after it has been determined that an
enhancement or modification is necessary, but in any event upon at
least 30 days' notice, enhance or modify such equipment, software and
operational features as may be necessary to remain compatible with any
systems used by Service Provider in connection with the Services;
PROVIDED, HOWEVER, in the event such enhancement or modification
results in Service Provider incurring any incremental expense or
providing any additional resources, Recipient shall be responsible for
the payment of such incremental expense or the costs of such additional
resources.
4.02 GENERALLY.
Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider
that are necessary for Service Provider to adequately provide the
Services;
(2) comply with all standards and procedures applicable to the Data Center;
(3) promptly report any operational or system problem to Service Provider;
(4) maintain a business recovery plan detailing the requirements of
Recipient in the event of the occurrence of a disaster affecting the
Services and periodically test such plan;
(5) provide the working environment, including space, furniture,
electricity, telephones and other infrastructure requirements for
Service Provider's employees located at Recipient's premises; and
(6) except as provided in SCHEDULE J, after any such release or version is
commercially available, provide, install after sufficient testing, and
maintain new releases and versions of the systems software and
applications software in use as of the Agreement Date. In the event
that Recipient fails to provide, install or maintain any new releases
or versions of the systems software or the applications software in
accordance with SCHEDULE J, Recipient shall be responsible for the
payment of any incremental expense incurred by Service Provider in
connection with such failure.
4.03 ASSOCIATED EQUIPMENT.
Except to the extent otherwise provided in this Agreement or
any Schedule to this Agreement, 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 is not located at
the Data Center necessary to provide the Services or to transmit the Recipient
Data for processing at the Data Center.
4.04 SECURITY.
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.
4.05 BUSINESS PLANNING.
During the Initial Term and, if any, the Extended Term,
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, and what action, if any, may be necessary to adjust the level of
Services. Recipient's business plan provided to Service Provider pursuant to
this SECTION 4.05 shall be deemed confidential information of Recipient.
ARTICLE 5. PROPRIETARY RIGHTS.
5.01 RECIPIENT SOFTWARE.
Recipient shall grant a non-exclusive, non-transferable,
royalty-free right for Service Provider, solely in connection with providing the
Services, to (1) have access to and (a) operate the Licensed Software set forth
in SCHEDULE D and (b) use the Licensed Documentation and (2) use any other
hardware, software and documentation owned by Recipient that is necessary to
allow Service Provider to perform the Services. Recipient shall obtain any
consents or approvals necessary in connection with Service Provider's use of the
Licensed Software, the Licensed Documentation and any other such hardware,
software and documentation.
5.02 SERVICE PROVIDER SOFTWARE.
All Service Provider Software is, or shall be, and shall
remain, the exclusive property of Service Provider or its third party licenser
and Recipient shall have no rights or interests to the Service Provider
Software, except as described in this SECTION 5.02. Service Provider shall
obtain, at its expense, any consents or approvals necessary in connection with
Service Provider's use of the Service Provider Software to provide the Services
to Recipient.
ARTICLE 6. DATA.
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.
6.02 OWNERSHIP OF DATA.
The Recipient Data is and shall remain the property of
Recipient or its customers.
6.03 OWNERSHIP OF MEDIA.
All dedicated media upon which only Recipient Data is stored
is and shall remain the property of Recipient. In the event additional media is
needed, it shall be obtained by Recipient, and be the property of Recipient or
its lessor.
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.
ARTICLE 7. FEES.
7.01 FEES.
Recipient shall pay to Service Provider the fees set forth in
SCHEDULE E in respect of each of the Services.
7.02 TIME OF PAYMENT.
The Fees shall be paid by Recipient monthly in arrears on or
before the first business day immediately following the end of each whole or
partial calendar month of the Initial Term and, if any, the Extended Term.
7.03 ADDITIONAL SERVICES.
In the event that Recipient's use of a Service increases above
that set forth in SCHEDULE A for such Service, and/or Recipient notifies Service
Provider of the need for such an increase, Service Provider shall determine
whether any additional hardware or software is necessary in order for Service
Provider to provide the Service and, in the event that Service `Provider and
Recipient determine, pursuant to this SECTION 7.03, 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
any impact on the Fees. 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.
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
subsequently 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.
7.05 LATE PAYMENTS.
Any undisputed fees or payments owing to Service Provider
pursuant to this Agreement that are not paid when due shall bear interest at the
rate of one and one-half (1 1/2) percent per month, but in no event to exceed
the highest lawful rate of interest, calculated from the date such amount was
due until the date payment is received by Service Provider.
7.06 TRANSITION/TERMINATION FEES.
Upon the termination of this Agreement, Recipient shall pay to
Service Provider the fees set forth in SCHEDULE H.
ARTICLE 8. AUDITS.
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review 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.
ARTICLE 9. CONFIDENTIALITY.
Each of the Parties shall not use or permit the use of
(without the prior consent of the other) and shall keep, and shall cause its
consultants and advisors to keep, confidential all information concerning the
other Party in its possession, its custody or under its control (except to the
extent that (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 pursuant to this Agreement, and each Party shall not (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 10. INDEMNITY.
10.01 Service Provider shall indemnify and hold harmless
Recipient in respect of all claims, costs, expenses, damages and liabilities
(including reasonable attorneys' fees) arising from any claim by a third party
licensor that the Service Provider
Software made available to Recipient by Service Provider infringes such third
party's proprietary rights.
10.02 Recipient shall indemnify and hold harmless Service
Provider in respect of all claims, costs, expenses, damages and liabilities
(including reasonable attorneys' fees) arising from any claim by a third party
licensor that the Recipient Software made available to Service Provider by
Recipient infringes such third party's proprietary rights.
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.01 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, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11.02 LIMITATION OF LIABILITY. Neither of the parties shall be
liable to the other (or any claiming under or through the other) for any
indirect, special, incidental or consequential damages, including lost profits
or savings, whether or not such damages are foreseeable, or for any third party
claims relating to the Services or a Party's performance under this Agreement
regardless of the form of action (including negligence). Except as may arise as
a result of a party's gross negligence or willful misconduct, and as set forth
in Section 10 above, each party's liability for direct damages arising in
connection with its performance or failure to perform under this Agreement shall
in no event exceed six (6) months' Fees hereunder.
ARTICLE 12. DISPUTE RESOLUTION.
12.01 PROCEDURE.
Any disputes arising out of or in connection with this
Agreement shall be settled in accordance with the dispute resolution mechanisms
set forth in Article VI of the Distribution Agreement.
12.02 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 13. CONTINUED PROVISION OF SERVICES.
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.
13.02 DISASTER RECOVERY.
Service Provider shall provide the disaster recovery related
services as described in SCHEDULE I.
ARTICLE 14. TERMINATION.
14.01 FOR CONVENIENCE.
Recipient may terminate this Agreement at any time during the
Initial Term upon 90 days' notice to Service Provider.
14.02 EFFECT OF TERMINATION.
Upon the termination of this Agreement pursuant to SECTION
14.01, Recipient shall pay to Service Provider, no later than the effective date
of such termination, the balance of the Fees due for the Initial Term and, if
any, the Extended Term.
ARTICLE 15. TERMINATION ASSISTANCE SERVICES.
Upon the expiration of this Agreement or the effective date of
termination of this Agreement, Service Provider shall have no further obligation
to provide the Services to Recipient and:
(1) for a period of up to (a) 60 days prior to the expiration or the
effective date of termination of this Agreement and (b) 30 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, from Service Provider to the facilities of (x) the
Alternative Provider or (y) Recipient, as requested by Recipient; and
(2) the rights granted to Service Provider in SECTION 5.01 shall
immediately terminate and Service Provider shall deliver to Recipient
(a) a current copy of the Licensed Software in the form in use as of
that time and (b) a current copy of the Licensed Documentation in the
form in use as of that time.
ARTICLE 16. MISCELLANEOUS PROVISIONS.
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.
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 Party under this
Agreement shall not be unreasonably withheld or delayed and each Party shall
make only reasonable requests under this Agreement.
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.
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 Road
Westport, Connecticut 06880
Telecopy No.: (203) 222-4268
Attention: General Counsel
If to Recipient:
Synavant Inc.
3445 Peachtree Road, N.E., Suite 1400
Atlanta, Georgia 30326
Telecopy No.: (404) 841-4115
Attention: Chief Executive 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.
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.
16.06 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
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.
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, without the consent of the other Party. Any assignment
in contravention of this SECTION 16.08 shall be void.
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 expressly set forth herein.
16.10 SUCCESSORS. Subject to the restrictions on assignment
set forth in SECTION 16.08, 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.
16.11 AMENDMENTS. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
16.12 SURVIVAL. The provisions of ARTICLE 5, ARTICLE 8,
ARTICLE 9, ARTICLE 10, ARTICLE 11, ARTICLE 12, ARTICLE 15, SECTION 6.02, SECTION
6.03, SECTION 7.06, SECTION 14.02, SECTION 16.06, this SECTION 16.12 and SECTION
16.15 shall survive the expiration or termination of this Agreement.
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.
16.14 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.
16.15 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.
IN WITNESS WHEREOF, the pates 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