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EXHIBIT 10.2
IMS HEALTH INCORPORATED
XPONENT DATA LICENSE AGREEMENT
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, and
___________________ (hereinafter "Licensee"), a ____________ 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
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
_______________ and ending on _______________ during the term of
this Agreement.
e. "Desktop Media" means prescription pads, medical forms and other
similar promotional material which are provided to Prescribers at a
nominal charge or
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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, or (v) a sponsor of
continuing medical education ("CME") seminars, conferences or
courses or a publisher of CME materials.
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 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.
i. "Data" means certain data provided by IMS from its Xponent, Xponent
Plantrak and Xponent Profiler information 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 Paragraph 4 hereof and subject to the other
terms and conditions of this Agreement. The licenses granted herein are
not exclusive and nothing contained herein shall prohibit or restrict IMS
from 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.
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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 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 Licensee's Single Source Sampling product, to
select, on behalf of one or more Manufacturers, a list of
Prescribers, which list Licensee 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 one or more Legended Drugs
of each of such Manufacturers (a "Form"), which Form is
substantially similar to the form attached hereto as ATTACHMENT I;
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; or
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.
5. CONDITIONS APPLICABLE TO USE OF DATA
a. The delivery of any Materials or Legended 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
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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
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.
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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
(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
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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 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
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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 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 3; 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
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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 whom a Manufacturer, an
Agency, Licensee or any other Person solicits information on
practice profiles and/or prescribing activity for the purpose of
developing a database of practice and prescribing profiles on
individual Prescribers, except for the solicitation of such
information for the benefit of (i) a single Manufacturer or (ii) a
single Healthcare Company that is a manufacturer or 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; or
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.
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.
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
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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 Paragraph 4 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
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
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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 one 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 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.
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).
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(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 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) days
following the end of such three year 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 4, 5, 6 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 17, 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 4 of this Agreement, then
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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 17 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.
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
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respects with Licensee's obligations under the provisions
of Paragraphs 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 number
of prescriptions that will be deleted from Data 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, subject to the terms of
Paragraph 15(g), 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, 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.
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.
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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 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.
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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 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.
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 a Subsidiary and any such Subsidiary may assign all or
any portion of this Agreement to an entity which is then a
Subsidiary; provided, however, that any such assignment shall not
relieve IMS of its obligations under this Agreement. 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
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<PAGE>
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.
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
__________________________
__________________________
__________________________
Attention: ______________
With a copy to:
IMS Health Incorporated
__________________________
__________________________
__________________________
Attention: General Counsel
If to Licensee:
__________________________
__________________________
__________________________
__________________________
Attention: President
with a copy to:
__________________________
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__________________________
__________________________
__________________________
Attention: General Counsel
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(TM) in 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(TM) 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(TM) trademark shall be promptly provided to
IMS by Licensee on or before the release of such
materials;
(c) when using the Xponent(TM) 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(TM)
trademark;
(e) Licensee acknowledges (i) IMS's exclusive right, title
and interest in and to the Xponent(TM) 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(TM) 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(TM) trademark by the Licensee
shall inure to the benefit of IMS.
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(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: _______________________________:
By:__________________________ By:________________________________
Name:________________________ Name:______________________________
Title:_______________________ Title:_____________________________
Date: _______________________ Date: ____________________________
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