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EXHIBIT 2.2
EXECUTION COPY
IMS HEALTH INCORPORATED
XPONENT DATA 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,
and the Interactive Marketing Division of Synavant Inc., (hereinafter
"Licensee"), a Delaware corporation, with an address at One Broad Avenue,
Fairview, New Jersey 07022.
RECITALS
WHEREAS, IMS is principally engaged in providing information services
to the pharmaceutical industry and, in connection therewith, collects data from
pharmacies through various third parties relating to prescription transactions
and prescribers;
WHEREAS, Licensee, on behalf of its customers, is principally engaged
in providing direct marketing of pharmaceutical promotion to prescribers in the
United States and circulation management of healthcare publications in the
United States; and
WHEREAS, IMS desires to license certain data to Licensee 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:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings specified:
a. "affiliate" of Licensee means any Person which now or in the
future controls, is controlled by or is under common control
with Licensee.
b. "Agency" means an agency engaged by a Manufacturer to develop
and/or implement a marketing campaign for one or more of such
Manufacturer's Legended Drugs.
c. "Association" means a professional association, comprised of
members in a health care-related profession, which is,
pursuant to the terms of Paragraph 8(a), identified by IMS as
licensing data to IMS that is incorporated into certain
elements of the Data.
d. "Contract Year" means each 12-month period commencing on
September 1 and ending on August 30 during the term of this
Agreement.
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e. "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.
f. "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, (v) a sponsor
of continuing medical education ("CME") seminars, conferences
or courses or a publisher of CME materials or (vi) a pharmacy
benefits management company or "PBM".
g. "Legended Drugs" means drugs which under Federal or state law
require the written prescription of a doctor, osteopath or
other individual who has the authority to prescribe Legended
Drugs.
h. "Materials" means (i) information, including promotional
materials and solicitation materials sent to a Prescriber, all
of which relate to one or more Legended Drugs or
over-the-counter 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(a)
hereof, (iii) Journals, (iv) Desktop Media, or (v)
information, including promotional materials, solicitation
materials or course materials, relating to CME.
i. "Data" means certain data provided by IMS from its Xponent
-Registered Trademark- Plantrak-TM- and Xponent -Registered
Trademark- Profiler-TM- information services and other
services as further described on EXHIBIT 1 hereto.
j. "Person" means any natural person, corporation, business
trust, joint venture, association, company, firm, partnership,
government entity or other entity.
k. "Prescriber" means a doctor, osteopath, dentist or other
individual with an address in the United States who has the
authority to prescribe Legended Drugs.
2. LICENSE GRANT
IMS hereby grants to Licensee a non-transferable and non-exclusive
license, without the right to grant sublicenses, to Data for use solely
in accordance with the terms of Paragraphs 4 and 5 hereof and subject
to the other terms and conditions of this Agreement and only for the
uses as specified in Exhibit 3. The licenses granted herein are not
exclusive and nothing contained herein shall prohibit or restrict IMS
from
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licensing, selling or otherwise transferring Data or any other
information to any other Person or from using Data or any other
information for its own purposes.
3. DATA
IMS shall provide the Data to Licensee in accordance with the
operational procedures set forth on EXHIBIT 2 hereto. IMS will use its
reasonable efforts to process 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.
4. USE OF DATA
Subject to the other terms and conditions of this Agreement, the Data
licensed hereunder shall be used by Licensee solely for the uses and
purposes listed on Exhibit 3:
5. CONDITIONS APPLICABLE TO USE OF DATA
a. The delivery of any Materials, Legended Drug samples or
over-the-counter drug samples in connection with Paragraph 4
may be made by U.S. Postal Service, other common carrier,
telegram, telephone, facsimile transmission, modem or other
means; provided, however, that under no circumstances shall
delivery of any of such Materials or Legended Drug samples be
accomplished by (i) any employee of a Manufacturer, including
but not limited to any pharmaceutical sales representative of
such Manufacturer, or (ii) any Person engaged by a
Manufacturer to call on Prescribers on behalf of such
Manufacturer in connection with the marketing of one or more
Legended Drugs.
b. The use of any list of Prescribers selected by Licensee from
the Data pursuant to the terms of Paragraph 4 shall be limited
to a specific one-time use or a single marketing program
conducted by Licensee for a Healthcare Company or any renewal
or repeat of such program by Licensee; provided, however, that
with the exception of Limited Data, and the retention of
Historical Data as provided under Paragraph 11(c), any Data,
or any information derived from such Data, contained in or
identified with such list may only be used in a manner
permitted hereunder for a period not to exceed ninety (90)
days, after which such Data must be destroyed. In the event
any Data or any information derived therefrom is copied or
incorporated into any database, data bank or any file or
listing containing any data not provided pursuant to the terms
of this Agreement, such database, data bank, file or listing,
as the case may be, shall be and remain subject to all of the
terms and conditions of this Agreement.
c. Except as provided under Paragraphs 5(d), 5(e) and 18 hereof,
Licensee shall retain the Data and any information derived
therefrom only within the internal confines of Licensee's own
organization. The parties hereto acknowledge and agree that
the preceding sentence is fundamental to this Agreement and
Licensee shall not design programs or provide multiple copies
of lists to a Healthcare Company which taken together would
result in either directly or indirectly
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avoiding the restriction contained in the preceding sentence.
Licensee shall not provide any Data to any third party,
including but not limited to a Healthcare Company or any
affiliate of Licensee, except as specifically set forth below:
(1) if a Healthcare Company engages a third party to
provide lettershop or similar services in connection
with sending Materials to Prescribers (a
"Lettershop"), Limited Data may be provided by
Licensee to the Lettershop; provided, however,
Licensee enters into a written agreement with such
Lettershop in accordance with Paragraph 5(f)(1) of
this Agreement. The Lettershop shall be required to
return Limited Data to Licensee or the Healthcare
Company, as the case may be, within ten (10) calendar
days of the earlier of completion or termination of
the respective order for services.
(2) in the event Licensee selects a list of Prescribers
from the Data for use in connection with providing
Materials or Legended Drug samples to certain of such
Prescribers on behalf of a Manufacturer, Licensee may
provide Limited Data to such Manufacturer for the
sole purpose of permitting such Manufacturer to
notify its sales representatives of Prescribers
within each sales representative's territory who were
sent such Materials or Legended Drug samples;
provided, however, Licensee sends a purchase order to
such Manufacturer or enters into a written agreement
with such Manufacturer in accordance with Paragraph
5(f)(2) of this Agreement; and provided further that
Limited Data derived in whole or in part from Data is
not provided to a Manufacturer any more frequently
than once in any thirty (30) day period.
(3) In connection with the delivery to a Prescriber of
any sample of a Manufacturer's Legended Drugs in
response to a solicitation made pursuant to Paragraph
4, Licensee may provide Limited Data to such
Manufacturer, and such Manufacturer shall be
permitted to retain Limited Data relating to the
recipients of such Legended Drug samples solely for
purposes of compliance with any applicable state and
Federal laws, including but not limited to laws
relating to the distribution of Legended Drug
samples, such period of retention in each instance to
be limited to the longest period of time necessary to
comply with any such laws.
d. Licensee may provide the following types of information
derived from the Data to a Healthcare Company that is a
prospective customer for a specific service of Licensee that
involves the selecting of lists of Prescribers, derived from
the Data, for the uses permitted by the terms of Paragraph 4
of this Agreement, solely for purposes of promoting such
service provided such information does not identify individual
Prescribers and is not summarized by and/or identified with
any geographic area or unit, including but not limited to zip
codes, counties, states or sales territories, but aggregates
Prescribers only in the following manner:
(1) by Prescriber specialty, the total number of
Prescribers per specialty contained in the Data,
and/or
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(2) by prescribing level, in quintiles or deciles.
e. Licensee may provide to a Healthcare Company for whom Licensee
has provided a product or service which uses Data as permitted
under Paragraph 4 in connection with a single marketing
program, the total number of Prescribers that were sent
Materials or responded to Materials from Licensee, as the case
may be, with respect to such program.
f. If at any time Licensee provides any Limited Data or any
information derived from such Data to:
(1) a Lettershop, Licensee shall enter into a written
agreement with such Lettershop, which agreement
shall, among other things, contain such terms and
conditions as are necessary or desirable to prohibit
such Lettershop from making any use of such Limited
Data and/or information in a manner which is
inconsistent with the terms and conditions of this
Agreement. Such terms and conditions, at a minimum,
shall include:
(a) a provision stating that the Limited Data is
being provided to the Lettershop solely for the
limited purpose set forth in Paragraph 5(c)(1);
(b) terms and conditions which reflect the
obligations and restrictions contained in
Paragraphs 5(a), 5(b), 5(c)(1), 5(g), 5(h), 6, 7
and 8;
(c) a provision stating that the use of Limited Data
is limited to a specific one-time use or use in
connection with a single marketing program, as
the case may be; and
(d) a provision stating that IMS Health Incorporated
is an intended third party beneficiary to the
agreement between Licensee and such Lettershop.
In the event a Lettershop fails to comply with
such an agreement, Licensee shall promptly
notify an appropriate representative of such
Lettershop in writing of such failure, with a
copy to IMS, within five business days after
Licensee knows or reasonably suspects such
failure. Licensee shall promptly provide IMS
with a copy of any correspondence between
Licensee and such Lettershop relating to such
failure. 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 Licensee and such Lettershop
to the extent such terms and conditions are
required by the terms of this Paragraph 5(f). In
the event IMS does not have rights as an
intended third party beneficiary to bring an
action as contemplated in this Paragraph 5(f),
Licensee agrees to be liable for any breach by
such Lettershop of such agreement.
(2) a Manufacturer, Licensee shall either send an order
form to such Manufacturer or enter into a written
agreement with such Manufacturer which order form or
agreement, as the case may be, shall, among other
things, contain such terms and conditions as are
necessary or desirable to prohibit such Manufacturer
from making any use of such Limited Data
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and/or information in a manner which is inconsistent
with the terms and conditions of this Agreement. Such
terms and conditions, at a minimum, shall include:
(a) a provision stating that the Limited Data is
being provided to the Manufacturer solely for
one or both of the limited purposes set forth in
Paragraphs 5(c)(2) and (3);
(b) terms and conditions which reflect the
obligations and restrictions contained in
Paragraphs 5(a), 5(b), 5(c)(2) and/or 5(c)(3),
as the case may be, 5(g), 5(h), 6, 7 and 8;
(c) a provision stating that the use of Limited Data
is limited to a specific one-time use and/or use
in connection with a single marketing program;
(d) a provision stating that such Manufacturer is
not permitted to store the Limited Data in any
database or otherwise use the Limited Data to
target the calling activity of its sales
representatives on Prescribers; and
(e) a provision stating that IMS Health Incorporated
is an intended third party beneficiary to the
agreement between Licensee and such
Manufacturer.
In the event a Manufacturer fails to comply with such
an agreement, Licensee shall promptly notify an
appropriate representative of such Manufacturer in
writing of such failure, with a copy to IMS, within
five business days after Licensee knows or suspects
such failure. Licensee shall promptly provide IMS
with a copy of any correspondence between Licensee
and such Manufacturer relating to such failure. 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 Licensee and such
Manufacturer to the extent such terms and conditions
are required by the terms of this Paragraph 5(f). In
the event IMS does not have rights as an intended
third party beneficiary to bring an action as
contemplated in this Paragraph 5(f), Licensee agrees
to be liable for any breach by such Manufacturer of
such agreement.
Such agreements shall specify the intended uses of such
Limited Data in sufficient detail so that it may be determined
whether such use is in compliance with the terms and
conditions of this Agreement. Such agreements shall be
available to IMS in connection with any inspection which IMS
may perform pursuant to Paragraph 17 of this Agreement.
g. In connection with any use of Data, under no circumstances
shall any of such Data or any information derived therefrom be
disclosed to a Prescriber or to any other Person except as
expressly provided herein.
h. Notwithstanding anything to the contrary contained herein,
under no circumstances shall any Data or Limited Data be
provided by Licensee to any Person which has one or more lines
of business engaged in the licensing, selling
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or providing of access to data, information or databases in
competition with IMS or any Subsidiary ("Competing Company"),
or any Person 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 Licensee, a
Manufacturer or an Agency from engaging a Lettershop for the
delivery of Materials in accordance with the terms of
Paragraph 5(a) and in connection therewith, providing Limited
Data to such Lettershop in accordance with Paragraph 5(c)(1),
provided Licensee complies with the terms of Paragraph
5(f)(1).
As used in this Paragraph, "Limited Data" shall mean Data limited to
the following fields of information: Prescriber name and Prescriber
address to which the Material or Legended Drug sample was sent or to be
sent. Limited Data shall also include Association Data, provided
Licensee has an appropriate license with respect to such Data and
further provided the use of such Association Data and if applicable,
the disclosure of such Association Data, is permitted under the terms
of such license.
6. PROHIBITED USES OF DATA
IMS does not grant, and Licensee does not receive, any title or other
interest in the 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
Licensee are reserved to IMS. Without limiting the generality of the
foregoing, under no circumstances shall Licensee use, or permit any
other Person to use, Data received by Licensee 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 Association
identified by IMS pursuant to Paragraph 7(a) 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 Licensee with
written notice that such Data is no longer subject to the
restrictions of such Association's agreement;
d. 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;
e. results in the selection of Prescribers from which a
Manufacturer, an Agency, Licensee or any other Person solicits
information on practice profiles and/or
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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 marketer of
medical supplies and/or diagnostic equipment;
f. 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;
g. results in the reverse engineering or disassembling of any of
the Data;
h. enhances, benchmarks, validates, compares with, authenticates,
verifies, supplements, or modifies any data, products or
services of Licensee or any other party except as expressly
provided in this Agreement;
i. facilitates, authorizes or otherwise expressly or tacitly
permits the incorporation of the Data, or any information
derived therefrom, in any sales force automation system,
electronic territory management system, customer relationship
management system, or any other similar system used by sales
representatives for call reporting and management of sales
information for their respective territories, except as
expressly provided in Paragraph 5(c)(2);
j. facilitates, authorizes or otherwise expressly or tacitly
permits the use of any Data, or any information derived
therefrom, by a Manufacturer for use in connection with the
compensation or management of such Manufacturer's sales
force(s); or
k. facilitates, authorizes or otherwise expressly or tacitly
permits the use of any Data, or any information derived
therefrom, by a Manufacturer for targeting of Prescribers by
the sales representatives of such Manufacturer.
7. ASSOCIATION DATA
a. IMS may identify to Licensee in writing certain elements of
some or all of the Data which incorporates information
licensed to IMS by an Association ("Association Data"). In
addition to the terms and conditions of this Agreement,
Licensee agrees to treat each element of Association Data in
accordance with the terms of the respective Association
agreement then in effect between IMS and such Association. To
the extent that any term of such an Association agreement then
in effect is more restrictive concerning the use or disclosure
of Association Data than the terms contained in this Agreement
concerning the use or disclosure of Data, then the terms of
such Association Agreement shall control, but only with
respect to the use or disclosure, as the case may be, by
Licensee of Association Data.
b. In the event IMS identifies Association Data pursuant to
Paragraph 7(a) above and Licensee fails to maintain the
requisite license with the Association licensing such data to
IMS which would permit Licensee, at a minimum, a right to use
the Association Data provided hereunder in the manner
contemplated herein, IMS shall have no further requirement to
provide such Association Data under the terms of this
Agreement until such time as Licensee obtains such a license.
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c. By way of example, and not by way of limitation, any element
of Data identifying:
(1) the Medical Education number of the Prescriber is
derived from the American Medical Association's
("AMA") Physician Professional Data and shall remain
subject to the terms and conditions of the applicable
AMA agreement then in effect between IMS and the AMA.
(2) the American Osteopathic Association ("AOA") number
of the Prescriber is derived from the AOA's data
files and shall remain subject to the terms and
conditions of the applicable AOA agreement then in
effect between IMS and the AOA.
8. CONFIDENTIALITY
Licensee hereby acknowledges that the Data are proprietary to IMS
(collectively "Confidential Information"), agree to protect the
proprietary and confidential nature of such Confidential Information
and in connection therewith, will prohibit any access to or copying or
disclosure of any of the Confidential Information during the term of
this Agreement and after termination of this Agreement, except (a) that
access to and disclosure of Confidential Information may be provided to
those employees of Licensee, in connection with the uses permitted
Licensee as described in Exhibit 3 who require same to carry out such
uses, and (b) as expressly permitted under Paragraphs 5(c), (d) and (e)
of this Agreement. Licensee and any such other persons who receive
access to or disclosure of Confidential Information pursuant to the
preceding sentence shall maintain the strict confidentiality of such
Confidential Information in the same manner as Licensee maintains the
confidentiality of its own confidential information, and Licensee will
not disclose such 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 8, Licensee
shall promptly notify an appropriate representative of such person in
writing of such failure, with a copy to IMS, within five business days
after Licensee knows or suspects such failure. Licensee shall promptly
provide IMS with a copy of any responses from such person to Licensee'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 Licensee 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 8, Licensee agrees to be liable for any breach by such
person of such agreement. Licensee agrees that it will not ever, either
during the term of this Agreement or after its termination, assert that
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 Association
Data which is proprietary to the respective Association and subject to
copyright held by such Association.
9. REPRESENTATIONS AND WARRANTIES
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IMS represents and warrants that it has the right and authority to
license the Data to Licensee under this Agreement. EXCEPT AS EXPRESSLY
STATED IN THE PRECEDING SENTENCE OR PARAGRAPH 3, IMS MAKES NO WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE DATA (INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OF SUCH DATA OR ITS
FITNESS FOR LICENSEE'S PARTICULAR PURPOSE) AND FURTHER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR
COMPLETENESS OF THE DATA.
10. LIMITATION OF LIABILITY
IMS's entire liability and Licensee's exclusive remedy for IMS's
failure to abide by the accuracy and completeness requirements of
Paragraph 3 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 Licensee to IMS in
writing in a timely manner in accordance with EXHIBIT 2.
Notwithstanding any injunctive relief which Licensee 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 Data or
any breach by IMS of its obligations hereunder (even if IMS has been
advised of the possibility of such damages).
11. TERM/TERMINATION
a. The term of this Agreement shall be for a three year period
commencing on the date first written above. Notwithstanding
the foregoing, IMS shall have the right to terminate this
Agreement on thirty (30) days advance written notice to
Licensee:
(1) if Licensee becomes insolvent, voluntarily files a
petition under any federal or state bankruptcy law
for itself, has an involuntary petition filed under
any federal 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 Licensee's business, or
otherwise publicly announces the termination of its
operations and/or substantially all the products
relating to the licenses granted herein;
(2) upon the sale of Licensee, 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 controlling,
controlled by or under common control with a
Competing Company; or
(3) if Licensee or any affiliate of Licensee develops or
comes into possession of data which is substantially
similar to the Data or Licensee or any affiliate of
Licensee acquires the right, by license, purchase or
otherwise, to data which is substantially similar to
the Data.
As used in Paragraph 11(a)(3), data which is "substantially
similar to the Data" shall include but not be limited to any
data or information (a) consisting of or
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derived from a number of prescription transactions in any
calendar month which number is greater than or equal to
one-twentieth of the number of prescription transactions as
estimated by IMS's National Prescription Audit for such
calendar month, or (b) which Licensee or any affiliate of
Licensee claims is the functional or statistical equivalent of
data that consists of or is derived from a number of
prescription transactions in any calendar month which number
is greater than or equal to one-twentieth of the number of
prescription transactions as estimated by IMS's National
Prescription Audit for such calendar month. However, data
shall not be considered "substantially similar to the Data"
for any data received from a pharmaceutical Manufacturer for
use by Licensee solely to provide services to such
Manufacturer.
b. In the event of the termination of this Agreement:
(1) Licensee shall deliver all Data, and any information
derived therefrom, in its possession or control to
IMS within ten (10) days of such termination, except
as otherwise expressly provided in Paragraph 11(c).
(2) for any period during which Data, or any information
derived therefrom, remains in the possession or
control of Licensee after termination of this
Agreement, such Data and information shall remain
subject to the restrictions contained in this
Agreement, including but not limited to those
restrictions contained in Paragraphs 4, 5, 6, 7, and
8.
This provision shall not be construed to limit survival of any
other provision which also survives the termination of this
Agreement by the express or implied terms of such provision.
c. In connection with the selection of a list of Prescribers for
a use permitted pursuant to Paragraph 4, Licensee is
authorized to maintain, for a period of three years (or longer
to the extent required by law) from the date following the
termination of this Agreement, historical files containing the
following data elements from Data: physician name, physician
address used in connection with a delivery made in accordance
with the terms of this Agreement, Prescriber identification
number and Prescriber specialty (collectively "Historical
Data"). Such Historical Data may be maintained for such three
year period only for the following purposes: (i) servicing a
possible Legended Drug product recall pursuant to applicable
regulations promulgated by a government agency whereby notices
are delivered to Prescribers chosen from a list produced by
Licensee under the terms of this Agreement to whom samples of
such Legended Drugs were sent, (ii) recreating a delivery made
on behalf of a Healthcare Company pursuant to the terms of
this Agreement in which an error was made either by Licensee
and/or the Healthcare Company, as the case may be, which error
is the sole reason for recreating such delivery, or (iii)
responding to an audit or written request of a governmental
agency for information on the recipients of a Legended Drug
sample delivered in the fulfillment of a request by a
Prescriber in response to a solicitation made pursuant to
Paragraphs 4(a), 4(b) or 4(d). Within thirty (30)
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days following the end of such period, the Historical Data for
such deliveries will be deleted from Licensee's possession and
control.
12. DEFAULT
a. A "Default" shall exist hereunder by Licensee if Licensee
fails in any material respect to be in compliance with the
terms of Paragraphs 2, 4, 5, 6, 7 or 8 (an "Event of Default")
and such failure, if curable, is not cured within ten (10)
calendar days following notice of such failure from IMS.
b. If IMS alleges an Event of Default by Licensee, and Licensee
in good faith disputes the occurrence of such Event of
Default, IMS agrees to continue to provide Data hereunder
until such dispute is resolved by the parties or by a
determination through arbitration as provided in Paragraph 16,
without prejudice to any remedies available to IMS.
13. CERTAIN REMEDIES
a. If the sale of any product or the rendering of any service or
the license of any Data gives rise to an Event of Default
pursuant to Paragraph 2 or 4 of this Agreement, then IMS shall
receive from Licensee an amount equal to the aggregate of the
gross revenues recognized from the sale of such product or the
fees charged in connection with the rendering of such service
or the licensing of such Data.
b. Two or more Events of Defaults hereunder, whether or not
cured, shall entitle IMS, in its sole discretion, to
immediately terminate this Agreement upon written notice to
Licensee; provided, however, that each such Event of Default
is acknowledged in writing by Licensee and/or is finally
determined by arbitration pursuant to Paragraph 16 of this
Agreement.
c. Nothing herein shall be construed as limiting IMS's rights and
remedies in the event of a breach of this Agreement by
Licensee, whether or not such breach is cured. The rights and
remedies set forth in Paragraphs 11 and 13 of this Agreement
are in addition to any other rights or remedies which
otherwise may be available, in law or in equity.
14. FORCE MAJEURE
Licensee agrees that IMS shall not 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.
<PAGE>
15. ADDITIONAL AGREEMENTS
a. IMS and Licensee 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 or state 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.
b. Upon the request of IMS, the President of Licensee (or in the
event the President of Licensee is not responsible for the
day-to-day business of Licensee, then the General Manager of
Licensee or such other person who has overall responsibility
for the day-to-day business of Licensee) shall provide IMS
with a written statement certifying that, after due inquiry,
Licensee has complied in all material respects with Licensee's
obligations under the provisions of Paragraphs 2, 4, 5, 6, 7
and 8 of this Agreement for the past Contract Year, except as
noted therein.
c. Under no circumstances shall this Agreement be construed as
placing any affirmative obligation on IMS, express or implied,
to collect or continue to collect any data or information from
any third party, including but not limited to pharmacy data
from which the Data is derived ("Source Data"). In the event
IMS 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, IMS will provide written notice of such
at least ninety (90) days prior to the date on which such
Source Data collection will cease, specifying the date or
dates at which IMS will cease collecting such Source Data and
the approximate number of prescriptions that will not be
included in the Data in the ensuing twelve months as a result
(the "IMS Notice"). In such event, IMS shall incur no
liability to Licensee in connection therewith and, in the
event IMS ceases to collect all of such Source Data, then this
Agreement shall automatically terminate and be of no further
force and effect immediately upon the last delivery of Data to
Licensee. A "substantial reduction" means a reduction in the
aggregate amount of prescriptions comprising the Source Data
for use in connection with the delivery of Data hereunder in
excess of twenty-five percent (25%) when compared with the
aggregate amount of prescriptions comprising the Source Data
available to IMS for use in connection with the delivery of
Data for the same calendar quarter period in the immediately
prior year.
d. IMS and Licensee acknowledge that a data supplier to IMS may
request that some or all of its data be restricted in such a
manner as to prevent IMS from providing such data, or
information derived therefrom, to Licensee ("Data Supplier
Request"). In the event of a Data Supplier Request, IMS may,
at its sole option,
<PAGE>
enter into an agreement or arrangement or continue an
agreement or arrangement, as the case may be, which
accommodates such Request; provided, however, IMS, prior to
the acceptance of such an agreement or arrangement, uses
reasonable efforts to persuade such data supplier to provide
its data without such restriction. For purposes of this
Paragraph 15(d), IMS shall be deemed to have used "reasonable
efforts" if IMS, in connection with its negotiations with such
data supplier, makes a bona fide attempt to persuade such data
supplier to provide its data to IMS without such restriction;
provided, however, under no circumstances shall IMS have any
obligation to increase the amounts paid, or to be paid, to
such data supplier in exchange for the elimination of such
restriction.
e. IMS agrees that, upon the request of Licensee, IMS shall
negotiate in good faith with Licensee for a period of not more
than 30 days with respect to the acquisition by Licensee of
IMS's Xponent-Registered Trademark- information services in
certain European countries. In the event that the parties
have not entered into a definitive agreement with respect
to such acquisition at the end of such 30-day period, IMS
shall have no further obligations pursuant to this
Section 15(e). The parties acknowledge and agree that nothing
in this Section 15(e) shall create a binding obligation on IMS
or Licensee to consummate such an acquisition or shall
constitute any expression of the parties' intent or agreement
with respect to the terms of any such acquisition; any such
obligation and such terms will be created and expressed only
by a definitive agreement or agreements, if any, negotiated
and entered into by the parties.
16. ARBITRATION
a. 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 including, if necessary, its President for
discussion and resolution.
b. Subject to Paragraph 16(d), 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
Commercial Rules of the American Arbitration Association. 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
<PAGE>
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.
c. The parties hereby agree to submit to the exclusive personal
jurisdiction and venue of the United States District Court for
the Eastern District of Pennsylvania 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 Commonwealth of Pennsylvania, County of
Montgomery, 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.
d. Notwithstanding the provisions of Paragraphs 16(b) and (c),
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
16(c). The parties shall have the right to obtain such
provisional injunctive relief from a court of law designated
in Paragraph 16(c) 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 16(d) 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.
e. 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.
17. INSPECTION RIGHTS / COOPERATION
a. IMS shall have the right to make an inspection of the
business, books and records of Licensee upon five (5) days
notice to Licensee for the purpose of verifying Licensee's
compliance with its obligations pursuant to Paragraphs 2, 4,
5, 6, 7 and 8 of this Agreement. Licensee shall maintain
business records, books, account information, computer logs
and related materials sufficient to permit IMS to verify that
Licensee is in compliance with its obligations under the
above-referenced Paragraphs.
b. Any such inspection of Licensee's books and records shall be
performed by IMS's representatives and/or its outside
auditors. The costs of such an inspection shall normally be at
IMS's expense. However, Licensee shall bear the cost of an
inspection if such inspection reveals an Event of Default or
any other material breach of the terms of this Agreement.
<PAGE>
18. MISCELLANEOUS
a. 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.
b. This Agreement 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.
c. IMS may assign all or any portion of this Agreement to an
entity which is then an affiliated company and any such
affiliated company may assign all or any portion of this
Agreement to an entity which is then an affiliated company;
provided, however, that any such assignment shall not relieve
IMS of its obligations under this Agreement if the assignee
fails to perform. This Agreement may not be assigned from
Licensee to any other Person, whether by assignment by
Licensee, 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 Licensee with any other Person, shall be deemed an -
attempt by Licensee 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
18(c) or which has not received the written consent of the
other party if required herein shall be void.
d. 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.
e. 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.
f. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania
without giving effect to principles of conflicts of law.
g. 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.
<PAGE>
h. All notices pertaining to this Agreement or the performance of
either party hereunder shall be sufficient if in writing and
sent by Federal Express 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 Incorporated
660 W. Germantown Pike
Plymouth Meeting, PA 19462
Attention: President
With a copy to:
IMS Health Incorporated
660 W. Germantown Pike
Plymouth Meeting, PA 19462
Attention: Law Department
If to Licensee:
Synavant, Inc.
Interactive Marketing Division
One Broad Avenue
Fairview, NJ 07022
Attention: President
With a copy to:
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.
i. 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:
(1) Licensee's advertising and other promotional
materials for products or services which use any of
the Data shall identify IMS as originator of such
Data, a copy of which material will be promptly
provided to IMS on or before the first release of any
such material;
(2) Licensee is hereby granted a non-transferable and
non-exclusive license, without the right to grant
sublicenses, to use the trademark Xponent in
<PAGE>
connection with the advertising and promotion of the
Data, as such term is defined in EXHIBIT 1, and
Licensee agrees to use such trademark in connection
with its advertising and promotion of any products or
services which use Data in accordance with the
following:
(a) whenever Licensee uses the Xponent trademark in
advertising or in any other manner in connection
with the Projected Data or any products or
services of Licensee which use the Projected
Data, Licensee shall clearly indicate IMS's
ownership of the trademark;
(b) samples of all literature, stationery, packages,
labels and advertising prepared by or for
Licensee and intended to be used by Licensee in
connection with the use of the Xponent trademark
shall be promptly provided to IMS by Licensee on
or before the release of such materials;
(c) when using the Xponent trademark, Licensee
agrees to comply with all laws pertaining to
trademarks in force at any time in the United
States, including but not limited to, compliance
with marking requirements;
(d) Licensee agrees to comply with any written usage
guidelines provided by IMS for use of the
Xponent trademark;
(e) Licensee acknowledges (i) IMS's exclusive right,
title and interest in and to the Xponent
trademark and will not at any time do or cause
to be done any act or thing contesting or in any
way impairing or tending to impair any part of
such right, title and interest, and (ii) use by
Licensee of the Xponent trademark shall not
create in Licensee's favor any right, title or
interest in or to the Xponent-TM- trademark, but
that all uses of the Xponent trademark by the
Licensee shall inure to the benefit of IMS.
(3) IMS shall have a right to identify to any Persons (i)
that Licensee is a licensee of Data from IMS and (ii)
those products and services which Licensee may use
the Data under the terms of this Agreement.
j. 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.
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
<PAGE>
Title: Vice President Title: Vice President
Date: August 31, 2000 Date: August 31, 2000
