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EXHIBIT 10.3
CROSS LICENSE AGREEMENT
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AGREEMENT, dated as of this _____ day of _____________, 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 "Synavant "), 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, Synavant , 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 Synavant for
use in connection with it's Pharbase-TM- Services, and Synavant 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
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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 _______________
and ending on _______________ 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
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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 on numbered
exhibits in the form of EXHIBIT 1 hereto. Each Exhibit 1 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 Synavant as more fully described on
Exhibit 2 hereto.
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
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2.1 LICENSE GRANT
a. IMS hereby grants to Synavant 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 Synavant, or an
Affiliate of either of them, as specified in the applicable EXHIBIT 1.
2.2 IMS DATA
IMS shall provide the IMS Data to Synavant in accordance with the
operational procedures set forth on EXHIBIT 1 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 Synavant solely to update it's Pharbase
database(s) identified in the applicable
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schedule (the "Authorized Pharbase Databases"); provided, however, any such
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 Synavant's drug sampling services, to select, on
behalf of one or more Manufacturers, a list of Prescribers, which list
Synavant 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 Synavant 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, Synavant shall retain
the IMS Data and any information derived therefrom only within the
internal confines of Synavant's own organization. Synavant shall not
provide any IMS Data to any third party, including but not limited to
a Healthcare Company or any affiliate of Synavant, 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 Synavant 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, Synavant authorizes access
to Pharbase Data.
2.5. PROHIBITED USES OF IMS DATA
IMS does not grant, and Synavant 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 Synavant
are reserved to IMS. Without limiting the generality of the foregoing,
under no circumstances shall Synavant use, possess, distribute, or permit
any other person or Entity to use, IMS Data received by Synavant 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
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Data in effect at the time of the use of such IMS Data, unless an
authorized representative of IMS provides Synavant 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
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3.1 LICENSE GRANT
a. Synavant 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 Synavant 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 Synavant, or an
Affiliate of either of them, as specified in the applicable EXHIBIT 2.
3.2 PHARBASE DATA
Synavant shall provide the Pharbase Data to IMS in accordance with the
operational procedures set forth on EXHIBIT 2 hereto. Synavant will use its
reasonable efforts to process Pharbase Data in an accurate and complete
manner. Synavant will promptly notify IMS of any material inaccuracies in
such Pharbase Data which become known to Synavant in accordance with
Synavant '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 it's prescriber databases; (b) to update it's
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.
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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 Synavant, except as commingled
with IMS information or services.
b. Notwithstanding anything to the contrary contained herein, under no
circumstances shall any Pharbase Data or any information derived
therefrom 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 Synavant 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
Synavant 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 Synavant . 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 Synavant 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 Synavant 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
Synavant 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 Synavant concerning such Pharbase Data or
information;
e. results in the reverse engineering or disassembling of any of the
Pharbase Data; or
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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
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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
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5.1 Synavant 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 Synavant, in connection with the uses permitted Synavant
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. Synavant 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 Synavant maintains the confidentiality of its own confidential
information,
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and Synavant 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, Synavant shall promptly notify an appropriate representative of such
person in writing of such failure, with a copy to IMS, within five business
days after Synavant knows or suspects such failure. Synavant shall promptly
provide IMS with a copy of any responses from such person to Synavant'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 Synavant 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,
Synavant agrees to cooperate with IMS to pursue such third party for any
material breach by such person of the terms of such agreement. Synavant
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 Synavant
(collectively "Synavant Confidential Information"), agree to protect the
proprietary and confidential nature of such Synavant Confidential
Information and in connection therewith, will prohibit any access to or
copying or disclosure of any of the Synavant Confidential Information
during the term of this Agreement and after termination of this Agreement,
except (a) that access to and disclosure of Synavant 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 Synavant Confidential Information pursuant to the preceding
sentence shall maintain the strict confidentiality of such Synavant
Confidential Information in the same manner as IMS maintains the
confidentiality of its own confidential information, and IMS will not
disclose such Synavant 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 Synavant, within five business days after IMS
knows or suspects such failure. IMS shall promptly provide Synavant with a
copy of any responses from such person to IMS's notification. Synavant
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 Synavant 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 Synavant 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
Synavant and subject to copyright held by Synavant 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
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6.1 IMS represents and warrants that it has the right and authority to license
the IMS Data to Synavant under this Agreement. EXCEPT AS EXPRESSLY STATED
IN THE PRECEDING SENTENCE AND APPENDIX 1, IMS MAKES NO WARRANTY OR
REPRESENTATION,
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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 SYNAVANT'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 Synavant 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, SYNAVANT 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
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7.1 IMS's entire liability and Synavant'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 Synavant to IMS in writing in a timely manner in
accordance with EXHIBIT 1. Notwithstanding any injunctive relief which
Synavant 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
Synavant to IMS hereunder in the immediately preceding twelve month period.
7.2 Synavant's entire liability and IMS's exclusive remedy for Synavant's
failure to abide by the accuracy and completeness requirements of Paragraph
3.2 shall be for Synavant to endeavor to correct, in accordance with
Synavant's then applicable operating procedures for data quality assurance,
any such non-conformance which has been reported by IMS to Synavant in
writing in a timely manner in accordance with EXHIBIT 2. Notwithstanding
any injunctive relief which IMS may be entitled to, Synavant 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
Synavant of its obligations hereunder (even if Synavant has been advised of
the possibility of such damages). Under no circumstances shall Synavant's
liability hereunder exceed the greater of (a) fifty thousand dollars
($50,000), or (b) the amount paid by IMS to Synavant hereunder in the
immediately preceding twelve month period.
ARTICLE VIII - TERM/TERMINATION
-------------------------------
The term of this Agreement shall be for a two year period commencing on the date
first written above. This Agreement shall automatically renew for additional
periods of one year each, unless terminated by IMS by providing a minimum of
ninety (90) days advance written notice to Synavant prior to the start of
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any such renewal. 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 Synavant 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
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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
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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 Synavant to any other person or Entity, whether by assignment by
Synavant, 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 Synavant with any other person or Entity, shall
be deemed an attempt by Synavant 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.
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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 Incorporated
__________________________
__________________________
Attention:________________
With a copy to:
IMS Health Incorporated
__________________________
__________________________
__________________________
Attention:General Counsel
If to Synavant:
__________________________
__________________________
__________________________
Attention: President
with a copy to:
__________________________
__________________________
__________________________
__________________________
Attention: General Counsel
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
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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.
13.10Paragraph 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:__________________________ By:________________________________
Name:________________________ Name:______________________________
Title:_______________________ Title:_____________________________
Date: _______________________ Date: ____________________________
