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Exhibit 10.1(a)
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST UNDER RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED. THE CONFIDENTIAL INFORMATION ON PAGES 2, 4, 5, 7 AND 8 HAS BEEN
REPLACED WITH ASTERISKS.
SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Agreement") effective as of July 1, 1999 ("Effective
Date"), is made and entered into by and between IPNI COMMUNICATIONS CORPORATION,
a Delaware corporation with its principal offices located at Suite 285, 0000
Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Vendor); and GLAXO
WELLCOME INC., a North Carolina corporation with its principal office located at
Five Xxxxx Drive, Research Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000 ("GW").
WITNESSETH:
WHEREAS, Vendor has created a personal videoconferencing system whereby Vendor's
clients may conduct real time, one-to-one, face to face video discussions with
the client's actual and potential customers via equipment installed by Vendor at
such client's and such client's customers' locations (the "IPNI System"); and
WHEREAS, pursuant to the terms and conditions set forth herein GW desires to use
Vendor's IPNI System to conduct detailing sessions with "Primary Care
Physicians" (as defined in Section1(c)) enrolled by IPNI to use the IPNI System
("IPNI Primary Care Network System") regarding selected GW products and/or
services, and to provide information to physicians through secondary screen
access.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants set forth herein, the receipt and sufficiency of which is hereby
acknowledged, the patties agree as follows:
1. REPRESENTATIONS AND WARRANTIES.
(a) Vendor represents and warrants that it has the experience, staff,
facilities, and expertise to perform the services described herein
competently and in a professional manner.
(b) Vendor represents and warrants that the IPNI Primary Care Network
System is accessible only to Primary Care Physicians (and their office
personnel) and select Primary Care Physician members of Independent
Physician Associations ("IPA") (and IPA office personnel and group
management) that agree to enroll in Vendor's program and is not accessible
by others, other than IPNI and its clients.
(c) Vendor represents and warrants that the persons enrolled to use the
IPNI Primary Care Network System shall be "Primary Care Physicians". For
the purposes of this Agreement, "Primary Care Physicians" are those
physicians whose prescribing practices indicate that the primary
characteristic of such person's practice is that of a primary care
physician regardless of whether such person claims to be, or is certified
as, a General Practitioner, Family Practitioner, Internal Medicine, or
another type of specialist.
(d) Vendor represents and warrants that its activities on behalf of GW
hereunder are not in conflict with any other of its contractual
obligations.
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
(e) Vendor represents and warrants that it has disclosed to GW any and all
direct and indirect financial interests, greater than 1% of the equity,
profits and/or management interests outstanding held by Vendor, or any of
its principals, parent companies or subsidiaries, in any subcontractors to
be utilized by Vendor in the performance and execution of this Agreement.
(f) Vendor represents and warrants to GW that the IPNI Primary Care Network
System, or any part thereof and the components, applications, processes and
the designs employed in the IPNI Primary Care Network System, do not
constitute an infringement upon or misappropriation or misuse of any patent
trademark or copyright patent application, trade secret, or any other right
of any other person, corporation or entity.
(g) GW represents and warrants that its activities, and its materials (so
long as such materials have not been altered except by GW's direction or
with GW's consent) on the IPNI Primary Care Network System comply with all
Food and Drug Administration ("FDA") regulatory guidelines.
(h) GW represents and warrants that all information supplied by GW to IPNI
for placement on the IPNI Primary Care Network System (including the
content and appearance of GW's services) will be true and correct, and will
not (in the form supplied by GW) infringe or misappropriate any copyright
patent or other intellectual property right of any other person,
corporation, or entity.
2. VENDOR SERVICES. In consideration of the fees set forth herein, Vendor shall
supply the following services to GW ("Services")
(a) Physician Enrollment. It shall solely be the Vendor's responsibility to
enroll Primary Care Physicians with respect to such physicians agreeing to
use the IPNI Primary Care Network System. Upon the execution of this
Agreement GW shall supply Vendor with a prioritized list of approximately
50,000 Primary Care Physicians with whom GW would like to use the IPNI
Primary Care Network System ("Targeted Physicians") with a goal in calendar
year 1999 of Vendor enrolling and "operationalizing" (i.e., properly
installing and successfully connecting the physician's IPNI Primary Care
Network System unit such that the physician can successfully complete calls
to GW) 3,000 of the Targeted Physicians to use the IPNI Primary Care
Network System. The calendar year 2000 goal will be for Vendor to enroll
and "operationalize" **** additional Targeted Physicians to use the IPNI
Primary Care Network System. The calendar year 2001 goal will be for Vendor
to enroll and operationalize an additional **** Targeted Physicians to
use the IPNI Primary Care Network System. Vendor shall use its best efforts
to enroll such Targeted Physicians to use the IPNI Primary Care Network
System in the priority set forth in such list.
GW shall have the right to modify the list of Targeted Physicians (no more
frequently than twice in any given calendar year during the term hereof by:
(i) providing additional names (and the priority with respect thereto) to
such list; (ii) removing from the list the names of any persons that (A)
have not already been enrolled to use the IPNI Primary
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Care Network System, and (B) IPNI is not actively negotiating with to
enroll in the IPNI Primary Care Network System; and (iii) reprioritizing
the names on the list.
Any such Targeted Physician that enrolls to use the IPNI Primary Care
Network System is hereinafter referred to as an "Enrolled Targeted
Physician". All physicians that were enrolled to use the IPNI Primary Care
Network System during the period of the GW pilot study of the IPNI System
from February 1998 through May 1999 shall hereinafter be included in the
definition of "Enrolled Targeted Physicians".
Vendor represents and warrants that its recruitment and enrollment process
for all physician users of the IPNI Primary Care Network System shall at
all times comply with all applicable rules and regulations with respect
thereto including, without limitation, any fraud or anti-kickback
regulations, and all applicable American Medical Association rules or
guidelines. Vendor further agrees that no payments shall be made, and
nothing of value shall be given, to any physician as an inducement for, or
in exchange for, hearing a detail by a GW representative via the IPNI
Primary Care Network System.
(b) Installation. IPNI shall design, supply, configure, and install all
equipment hardware, and software required for the operation of the IPNI
Primary Care Network System by GW (including but not limited to
telecommunications services) at GW's headquarters in a location specified
by GW. Additionally, IPNI shall design, supply, configure, and install all
equipment hardware, and software required for the operation of the IPNI
Primary Care Network System by Enrolled Targeted Physicians (including but
not limited to telecommunications services).
(c) Setup. IPNI shall provide all necessary initial and ongoing training
and set up for the efficient operation of the IPNI Primary Care Network
System by GW and the Enrolled Targeted Physicians. Such setup shall
include, but not be limited to, the programming and installation of call up
screens on the Enrolled Targeted Physician's unit. Additionally Vendor
shall provide the necessary setup, programming, and installation of all
screens on the Enrolled Targeted Physician's unit which will include
materials related to up to eight GW products, plus other advertising,
educational and informational services of GW available to such physicians
as selected by GW, and a hotlink connected to GW's Web Site. GW shall
supply Vendor with all the content to be included on such screens in a
format consistent with Vendor's standards and specifications, including
allowable file sizes, as of the Effective Date. Vendor shall make no
changes in the content text, graphics, proportion of images, and/or text,
type styles, type faces, or any other aspect of such content and materials
except at the express direction of GW.
In the event Vendor desires to in any way modify or add to Vendor's
standards or specifications for materials supplied by GW for placement on
the IPNI Primary Care Network System, Vendor shall give GW at least 45 days
advance written notice of such changes. Notwithstanding notice of such
changes, for a period of up to six months after IPNI has established such
new standards or specifications Vendor shall continue to accept materials
from GW that meet previously established standards and specifications in
the event GW, after a good faith effort and without having to incur any
unreasonable
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
expenses, is reasonably unable to supply such materials per such revised
standards or specifications.
Vendor shall obtain GW's final approval of the content and appearance of
any GW related information or references on the Enrolled Targeted
Physician's unit. Once GW approves of such displays or references, Vendor
shall make no changes in the content text graphics, type styles, type
faces, or any other aspect of such displays or references, except at the
express direction of GW. Vendor agrees that it shall not install or make
any reference to GW or its products or services on the call up screen of
any display or IPNI System unit of any other person, except an Enrolled
Targeted Physician, or on an IPNI test station used solely by IPNI support
personnel for purposes of IPNI System maintenance and support. IPNI may
display GW's content (excluding GW detail aids) as it appears on the IPNI
Primary Care Network System on IPNI demonstration units, but only upon
receiving express written permission from GW in advance of any such
display.
(d) Operation and Maintenance. Once the IPNI System has been properly
installed and the GW set up elements approved and properly installed and
configured, Vendor shall be solely responsible to ensure the efficient
operation and maintenance of the IPNI Primary Care Network System
throughout the term of this Agreement. GW shall use the IPNI Primary Care
Network System primarily for the purpose of providing sales and promotional
communications (i.e., detailing sessions) to the Enrolled Targeted
Physicians regarding GW products and services.
GW may from time to time supply Vendor with materials that it wishes to be
able to download into the IPNI Primary Care Network System units of the
Enrolled Targeted Physicians during GW detailing sessions with such
physicians ("GW Download Materials"). Vendor shall place and host such GW
Download Materials on the IPNI Primary Care Network System, without any
additions or changes to the content thereof so that a GW representative may
access such materials upon request during a GW detailing session with such
physician. In the event GW wants to place GW Download Materials on the IPNI
Primary Care Network System, GW shall give Vendor at least 10 business days
prior notice before GW supplies Vendor with such materials. After such 10
day notice period and upon Vendor's receipt of such materials from GW,
Vendor shall complete the download of any files of 25 megabytes or less
within 5 business days of Vendor's receipt of such materials.
Notwithstanding the foregoing, Vendor shall use its best efforts to
download any GW Download Materials related to new GW product launches or
indications, in less than 5 business days even if GW has not given the 10
days advance notice (in which case GW shall exercise its best efforts to
give Vendor as much advance notice as possible in such a situation).
GW shall have the right to have changes made to the content or appearance
of any existing GW materials on the IPNI System. In the event GW wants to
make any such changes, GW shall give Vendor at least 10 business days prior
notice before GW supplies Vendor with such changes. After such 10 day
notice period and upon Vendor's receipt of such changes from GW, Vendor
shall complete the download of any **** megabytes or less within ****
business days of Vendor's receipt of such materials. Notwithstanding the
foregoing, in the event that GW requests changes, deletions, or additions
to existing GW
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
materials on the IPNI System in response to a FDA regulatory request or
requirement, or a change in applicable product labeling ("Regulatory
Change"), Vendor shall, at a minimum, remove the offending or erroneous
materials within 2 business days of Vendor's receipt of GW's request for
such a Regulatory Changes. Vendor will further exercise its best efforts to
download any replacement materials related to a Regulatory Change up *
megabytes within * business days of the receipt of GW's request for such
a Regulatory Change, which request shall set forth the specifics of such
change(s).
(e) Call Flags. At GW's request (no more frequently than once a day),
Vendor shall, via the IPNI Primary Care Network System, send messages to
those Enrolled Targeted Physicians specified by GW requesting that such
physicians contact GW via the IPNI Primary Care Network System ("Call
Flags").
(f) Service Levels.
(i) Contacts. Vendor shall ensure that the minimum contact service
level is maintained, throughout the term of this Agreement, at ****
completed contacts per Enrolled Targeted Physician per 12 month period
("Contact Target"). If an Enrolled Targeted Physician has failed to
contact GW and participate in a detail via the IPNI Primary Care
Network System four consecutive months, Vendor shall exercise it best
efforts to get such Enrolled Targeted Physician up to the Contact
Target level in the immediately following 6 months. If Vendor is
unsuccessful bringing such Enrolled Targeted Physician up to the
Contact Target level in such 6 month period, GW shall have the option
of requesting that Vendor remove GW's name and all GW related
materials from the IPNI System unit for such Enrolled Targeted
Physician, and Vendor shall comply with such request within 14 days of
Vendor's receipt of such request from GW. Thereafter such healthcare
provider will no longer be considered an Enrolled Targeted Physician,
and Vendor shall forthwith replace such removed healthcare provider
with a new Enrolled Targeted Physician.
(ii) Connectivity. Vendor shall maintain a "connectivity" service
level with Enrolled Targeted Physicians of at least 65% for calendar
year 1999, 70% for calendar year 2000, and 75% of calendar year 2001
and thereafter. For purposes of this Section 2(f)(ii), "connectivity"
shall be deemed to be achieved when an Enrolled Targeted Physician is
connected to GW via the IPNI Primary Care Network System without any
failure of the connection or other system related failure that
interrupts such connection. Provided, further, if Vendor can
substantiate that an attempted contact from an Enrolled Targeted
Physician via the IPNI Primary Care Network System was electronically
completed to GW during the specified "GW Staffing Hours" (as defined
in Section 3(a)) and did not suffer any connectivity or other system
failure, such call shall be deemed to be connected for the purposes of
determining the connectivity service level under this provision.
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3. GW OBLIGATIONS.
(a) Staffing. With respect to the operations of the IPNI Primary Care
Network System. GW agrees that is shall provide an adequate number of
GW representatives to handle detailing sessions with Enrolled Targeted
Physicians via the IPNI Primary Care Network System during GW's
Customer Response Center's hours of operation, currently 8:00 am. to
8:00 p.m. Eastern Time, Monday through Friday, excluding GW holidays
and any other GW operational shutdown of the GW facility in which such
GW representatives are located ("GW Staffing Hours"). The GW
representatives handling detailing sessions via the IPNI Primary Care
Network System shall maintain a written log of all such detailing
sessions, which shall include the date, the Enrolled Targeted
Physician's name, and shall also note whether there was any
connectivity or other apparent IPNI Primary Care Network System
failure that interfered with such detailing session.
(b) GW Download Materials. In the event GW desires to place GW
Download Materials on the IPNI Primary Care Network System, GW shall
provide such materials to Vendor in compliance with Section 2(c).
(c) Operations. GW shall exercise reasonable efforts to ensure that
the IPNI Primary Care Network System components installed at GW's
headquarters remain connected to the FM installed communications
outlet and to a permanent source of electrical supply. GW shall not
without Vendor's consent attempt to make any alterations to the IPNI
Primary Care Network System as installed.
GW will not initiate a video call to, or request a Call Flag for, an
Enrolled Targeted Physician who has already participated in a complete
GW detailing session via the IPNI Primary Care Network System in the
then current calendar month, except for a direct response by GW to a
call or other request from such an Enrolled Targeted Physician.
Enrolled Targeted Physicians may initiate contacts with GW via the
IPNI Primary Care Network System on a more frequent basis.
Notwithstanding the foregoing, in the case of a new product launch or
with respect to any express directions by the FDA or other applicable
regulatory authority, GW may initiate a video call to, or request a
Call Flag for, an Enrolled Targeted Physician, even if such physician
has already participated in a complete GW detailing session via the
IPNI Primary Care Network System during such calendar month.
4. NONEXCLUSIVITY: "MOST FAVORED NATIONS". The parties hereto agree that GW's
right to use the IPNI Primary Care Network System as contemplated herein is
mutually non-exclusive; i.e., Vendor may contract with others (including
competitors of GW) for the use of the IPNI Primary Care Network System, and GW
may contract with other parties with respect to services related to physician
detailing sessions, including other video conferencing vendor(s). As an
inducement to have GW enter into such a non-exclusive arrangement, Vendor
represents that as of the Effective Date Vendor has not entered into any
exclusive arrangement with any other person or entity with respect to
therapeutic category area exclusivity in the use of the IPNI Primary Care
Network System for detailing purposes, and Vendor further agrees not to enter
into
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
any such exclusive arrangements with any person or entity involved in the
pharmaceutical industry during the term of this Agreement.
Additionally, Vendor further agrees that with respect to other services and/or
features of the IPNI Primary Care Network System (e.g., the news service
feature), to the extent Vendor offers advertising, promotional, and/or
sponsorship opportunities to any of Vendor's clients involved in the
pharmaceutical industry with respect to such additional services and/or
features, Vendor shall also offer the same opportunities to GW on terms no less
favorable than that offered to such other client of Vendor. Vendor represents
that as of the Effective Date Vendor has not entered into any exclusive
arrangement with any of Vendor's clients involved in the pharmaceutical industry
with respect to such additional services and/or features.
Notwithstanding the foregoing nonexclusively, Vendor agrees that in no case
shall any banner ads or hyper links of, or other display or reference to, any
person or entity other than GW be placed on any pages of IPNI Primary Care
Network System displaying GW materials as contemplated herein.
5. COMPENSATION.
(a) Fees. For Vendor's services and obligations described herein the
compensation to be paid by GW to Vendor shall at the rate per "Completed
Call" with an Enrolled Targeted Physician as follows:
Date of Call Rate Per Completed Call*
------------ ------------------------
Effective Date through June 30, 2000 ****
July 1, 2000 through June 30, 2001 ****
July 1, 2001, and thereafter ****
* If the length of a call exceeds ****, GW will pay IPNI an
additional telecommunications charge of **** per each additional
minute for such call in excess of 10 minutes.
A "Completed Call" shall be a communication via the Primary (other than any
"test calls") in which the Enrolled Targeted Physician connects with a GW
representative and such communication does not suffer any connectivity
failure or other form of system related failure. In determining the number
of Completed Calls, the manual logs maintained by the GW representatives
shall control. Provided, however, after a period of at least 3 months in
which Vendor's records match GW's manual logs, Vendor can claim additional
Completed Calls if Vendor can substantiate that an attempted contact from a
Enrolled Targeted Physician via the IPNI Primary Care Network System was
electronically completed to GW during the specified GW Staffing Hours, and
such contact did not suffer any connectivity failure or other form of
system related failure.
Additionally, GW shall pay Vendor a fee per download of the GW Download
Materials equal to **** for each minute necessary to complete each GW
requested download of such materials Vendor shall track and invoice GW
for such download fees monthly.
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* Confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment
request.
The fees set forth in this Section 5(a) are all inclusive.
(b) Invoicing and Payment. GW shall prepay to Vendor the sum of ****
the execution of this Agreement for fees to be earned hereunder by Vendor.
Upon Vendor having at least an aggregate total of 1,000 Enrolled Targeted
Physicians operational on the IPNI System, Vendor shall invoice GW for an
additional **** fee prepayment hereunder. Upon Vendor having at least
an aggregate total of 2,500 Enrolled Targeted on the IPNI System, Vendor
shall invoice GW for an additional **** fee prepayment hereunder.
Vendor shall deduct any and all fees earned by it hereunder against such
prepayment amounts. Notwithstanding such prepayment, Vendor shall supply
GW with monthly invoices showing the fees earned during such month that
were deducted from any such prepayment.
Upon the complete depletion of such prepayments and thereafter throughout
the term of this Agreement Vendor shall invoice GW monthly for its fees
earned hereunder. Such invoices shall be detailed and shall be in form and
content acceptable to GW. GW shall pay such Vendor's invoices hereunder
within 45 days of GW's receipt thereof.
6. INSPECTION AND AUDIT. Vendor agrees to maintain accurate books and records
consistent with generally accepted accounting practices in connection with
Vendor's performance under this Agreement. GW's duly authorized representatives
shall have access, at all reasonable times and with one week advance notice, to
examine, review, audit and copy all of Vendor's records pertaining to Vendor's
performance hereunder, and for any other reasonable purpose related to this
Agreement. All papers, correspondence, data, information, reports, records,
receipts, and other sources of information relating to the work to be performed
under this Agreement shall be retained by Vendor for a period of two (2) years
after the earlier of the termination or expiration of this Agreement.
7. INFRINGEMENT AND PROPRIETARY RIGHTS. Throughout the term of this Agreement
Vendor shall ensure that none of the information, data, software, firmware,
hardware, articles, reports, or any other items which comprise the IPNI System
at any time during the term hereof violate or infringe upon any valid patent
trademark, copyright or any other right of any other person, corporation, or
entity. Vendor shall hold GW harmless from any losses incurred as a result of
such violation or infringement.
Except as expressly stated herein, GW agrees that nothing in this Agreement is
intended to convey, transfer or assign any other right, title or interest in or
to any patent trademark, service xxxx, copyright trade secret or other
intellectual property right or interest ("Proprietary Property") to GW in the
IPNI Primary Care Network System other than the right of GW to use the IPNI
Primary Care Network System as contemplated herein.
8. CONFIDENTIALITY. GW and Vendor recognize that during the performance of
services hereunder either party, its agents and employees may be exposed to
information regarding the other party's business that is proprietary and
confidential, including but not limited to trade secrets, business and marketing
plans, manuals, policies and procedures, strategies, product launch materials,
customer lists (including without limitation GW's Targeted Physicians list),
financial information, product information, and the services contemplated
herein. Additionally,
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each party agrees that the terms and conditions of this Agreement constitute
confidential information of the other party and shall not be disclosed to any
third party. Further, Vendor acknowledges and agrees that any information
related to the use of the IPNI System with respect to GW, including any data
related to the end user physicians and their use of the IPNI Primary Care
Network System related to GW (whether aggregated or not) is the confidential
information of GW; provided, however, with the prior written permission of GW
Vendor may use such data in an aggregated anonymous form solely for Vendor's
promotional purposes.
Each party agrees to hold such information of the other party in strict
confidence and not to use such information of the other party beyond the bounds
of this Agreement or disclose such information to any third party except as
strictly necessary to perform the services hereunder. The obligations hereunder
for such confidential information shall not apply to information that:
(a) is or becomes publicly available through no fault of the receiving
party;
(b) is disclosed to the receiving party by a third party entitled to
disclose such information; or
(c) is already known to the receiving party, or its affiliates, as shown
by its or their prior written records;
(d) is independently developed by the receiving party or its affiliates as
evidenced by written records, or
(e) is required by law to be disclosed; provided, however, that in such a
case the party who may be obligated to so disclose such otherwise
confidential information of the other party shall give such other
party notice of such required disclosure as soon as reasonably
practicable so that such party may have an opportunity to contest such
disclosure or obtain protective orders regarding such disclosure.
Each party agrees that it will take such steps as are reasonable to prevent the
disclosure or use of any confidential information by any of its affiliates,
employees, agents or subcontractors, except as expressly permitted hereby. The
obligations stated in this Section8 shall remain in full force and in effect
after termination of this Agreement.
9. PUBLICITY. Vendor shall not disclose publicly or use in any advertising or
promotional materials the existence of this Agreement or Vendors association
with GW, or use the name GW, or the name of any of GW's divisions or products,
without the prior written permission of GW.
10. TERM AND TERMINATION. The term of this Agreement shall begin as of the
Effective Date and shall automatically terminated as of the end of the thirty
sixth month following the Effective Date unless earlier terminated as provided
herein.
Either party shall have the right to terminate this Agreement upon 60 days
advance written notice to the other party. Additionally, either party may
immediately terminate this Agreement in the event the other party makes an
assignment for the benefit of creditors, or commences or has commenced against
it any proceeding in bankruptcy, insolvency, or reorganization pursuant to
bankruptcy laws or laws of debtor's moratorium.
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In the event of such termination GW's sole obligation to Vendor shall be limited
to payment of Vendor's fees earned hereunder up to the effective date of
termination, and the removal and return of all of Vendor's equipment located on
GW premises and related software, documentation and Vendor created training
materials then in GW's possession or under GW's control including, without
limitation, all copies and duplicates in whatever form, at GW's expense. In the
event there is still any outstanding GW fee prepayment hereunder as of the
effective date of such termination, Vendor shall remit the balance of such fee
prepayment to GW within 60 days of the effective date of such termination.
Additionally, in the event of such termination, notwithstanding any other terms
and conditions contained herein, neither party shall be liable to the other
party for any lost profits, or incidental, special or consequential damages.
11. RELATIONSHIP OF THE PARTIES. In performing services hereunder Vendor is, and
shall remain, an independent contractor. Nothing in this Agreement shall
constitute, or be construed to create, a partnership or joint venture between
the parties; neither party shall be jointly liable with the other party for any
obligation arising out of the activities or services contemplated in this
Agreement. Vendor may, at its expense, employ or engage such employees or
assistants as Vendor deems necessary to perform the services hereunder. GW may
not control, direct, or supervise Vendor's employees or assistants in the
performance of those services. Vendor shall be responsible for, and shall
promptly pay, all federal, state and municipal taxes, chargeable or assessed
with respect to Vendor's employees, including but not limited to, social
security, unemployment federal and state withholding, and other taxes.
12. YEAR 2000. GW does not intend to continue business relationships with
suppliers of goods or services in the event the ability of the supplier to
provide the goods or perform the services may be endangered by the "Year 2000
Problem." Accordingly, GW is putting into effect policies whereby it seeks
assurances from its suppliers that the Year 2000 Problem is being adequately
addressed. The agreements and warranties of Contractor set forth below are in
furtherance of such policies.
(a) (1) Vendor represents and warrants that, to the extent reasonably
necessary to ensure the performance of Vendor's ongoing business
operations and/or the provision of Services, Vendor has tested and
assessed the computer software, computer hardware, all devices
(including, without limitation, telephones, PBX's, facsimile machines,
office building systems, and machinery) (collectively, the "Computing
Devices") owned, licensed, or used by Vendor to determine whether such
Computing Devices will fail or will produce erroneous results as a
result of the inability to receive, store, process, or output date
information regardless of the date or dates utilized, including,
without limitation, related to the change of century (each, a
"Failure").
(2) Vendor further represents and warrants that Vendor has prepared
and implemented a written plan of action to ensure that the Computing
Devices owned, licensed, or used by Vendor will not be the subject of
a Failure (the "Millennium Compliance Plan"), or will have completed
preparation and implementation by June 30, 1999.
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(3) Vendor further represents and warrants that the quality of the
Services as delivered, timing of the delivery of any Services, or the
performance of any other obligation of Vendor under this Agreement,
shall not be adversely affected by a change in century or the
processing of dates of any sort.
(4) Vendor further represents and warrants that Vendor has contacted
and received assurances from all suppliers of goods or services to
Vendor, including, without limitation, suppliers of computer software,
computer hardware, and all devices, that each of the Computing Devices
owned, licensed, or used by such supplier will not be the subject of
Failures.
(b) Vendor shall deliver to GW a copy of the Millennium Compliance Plan
immediately upon GW's request. Vendor shall implement a plan to prevent the
purchase or license of Computing Devices from and after the Effective Date
that may be the subject of Failures. Vendor shall notify GW in writing
immediately upon Vendor's obtaining information that any Computing Devices
owned, licensed, or used by Vendor or any supplier of Vendor may be the
subject of a Failure. Vendor shall also notify GW in the event Vendor
determines that any Computing Devices owned, licensed, or used by GW may be
the subject of a Failure. Upon GW's written request Vendor agrees to
participate in additional tests of the Computing Devices owned, licensed,
or otherwise used by Vendor at no charge to determine whether such
Computing Devices may be the subject of Failures. Vendor shall notify GW
immediately of the results of any tests or any claim or other information
that indicates the Computing Devices of Vendor or Vendor's suppliers may be
the subject of a Failure.
(c) Vendor agrees to indemnify and hold GW and its shareholders, officers,
directors, employees, agents, successors, and assign harmless from and
against any and all claims, suits, actions, liabilities, losses, costs,
reasonable attorneys' fees, expenses, judgments or damages, resulting from
Vendor's breach of the warranties and agreements contained in this Section.
Any breach of the warranties or agreements by Vendor as set forth in this
Section shall be a material breach of this Agreement
(d) Vendor agrees that during the Y2K period (defined as the 4th quarter of
1999 and the 1st quarter of 2000) Vendor will use its best efforts to make
its personnel available and arrange for delivery of the Services on a
priority basis as required by GW at any time, including without limitation
vacation or holiday periods, during the Y2K period.
(e) After a material breach of Vendor's representations or warranties in
this section resulting in Vendor's inability to substantially perform its
obligations under this Agreement and Vendor's failure to cure such breach
within a reasonable time after receiving written notice thereof from GW, GW
may "cover" by making in good faith any reasonable contract for similar
services in substitution for those specific services from Vendor which
Vendor is substantially unable to perform. GW may recover from Vendor as
damages the excess of the cost of such cover over the contract price for
such Services Vendor is substantially unable to perform. Failure of GW to
effect cover within this section does not bar GW from any other remedy.
Furthermore, the election of cover is in addition to any other warranties
provided for in law or equity.
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13. ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and any permitted assigns. GW shall have the
right to assign its rights and duties under this Agreement to any parent,
subsidiary or affiliated company without prior written consent of Vendor. Except
as otherwise expressly provided herein, neither party may assign its rights and
obligations under this Agreement without the prior written consent of the other
party which consent shall not be unreasonably withheld.
14. CONTINUING OBLIGATION. The following sections shall survive any termination
or expiration of this Agreement: Sections 6-9, 14, 17, 19-20, all
inclusive.
15. SEVERABILITY. In case any one or more of the provisions of this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal, or unenforceable, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
16. WAIVER. No failure on the part of either party to exercise and no delay in
exercising any right hereunder shall operate as a waiver of such right nor shall
any single or partial exercise of such right preclude any other further exercise
thereof or the exercise of any other right.
17. INDEMNIFICATION AND LIABILITY.
(a) Vendor will indemnify and hold GW harmless from any loss, expense
(including reasonable attorneys' fees), cost, liability, damage or
claim resulting from any claim or litigation arising out of: (i)
Vendors negligence, gross negligence or willful misconduct in the
performance of the services required by this Agreement or (ii) any
breach of this Agreement by Vendor, its employees, agents,
representatives, or invitees. In the event of any claim or litigation
to which this indemnification applies, GW shall notify Vendor of such
claim or litigation; however, the failure to give such notice shall
not relieve Vendor from its indemnification obligations.
(b) GW will indemnify and hold Vendor harmless from any loss, expense
(including reasonable attorneys' fees), cost, liability, damage or
claim resulting from any claim or litigation, which arises out of: (i)
GW's negligence, gross negligence or willful misconduct in the
performance of the services required by this Agreement; or (ii) any
breach of this Agreement by GW, its employees, agents,
representatives, or invitees. In the event of any claim or litigation
to which this indemnification applies, Vendor shall notify GW of such
claim or litigation, however, the failure to give such notice shall
not relieve GW from its indemnification obligations.
Provided, however, in no case shall either party be liable for any lost profits,
or incidental, special or consequential damages of the other party.
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18. INSURANCE. Vendor agrees to provide (i) general liability insurance that
includes coverage for property damage and bodily injury, and (ii) workers'
compensation insurance that provides coverage for Vendor's employees. The
insurance company(ies) issuing such policies for such insurance coverage must
have at least an AXII Best rating. Vendor's insurance coverage at a minimum
shall include the following:
(a) Commercial General Liability based on an occurrence form including
bodily injury and property damage with combined single limits of not
less than $1,000,000.00 per occurrence and $2,000,000.00 in the
aggregate.
(b) Workers' Compensation Insurance in the amount required by applicable
state law(s).
(c) Umbrella Insurance with a combined single limit of $4,000,000.
Upon GW's request, Vendor shall have its insurance carrier furnish to GW
certificates that all insurance required under this Agreement is in force, such
certificates to indicate any deductible and/or self-insured retention and
stipulate that the insurance will not be canceled or substantially changed,
while this Agreement is in effect without thirty (30) days' prior written notice
to GW. Vendor shall on request permit GW to examine original insurance or other
protective policies issued in compliance with the requirements hereof. Vendor
shall upon request permit GW to examine original insurance or other protective
policies issued in compliance with the requirements hereof. Vendor shall not
commence work until all of the insurance required herein shall have been
obtained and approved by GW.
GW will maintain adequate security for Vendor equipment located in GW premises
and include Vendor equipment on GW's business liability insurance coverage.
19. NOTICES. All notices, statements, instructions, or consents required or
allowed hereunder, other than invoices, shall be sent to the parties as provided
herein, in writing and shall be delivered (i) personally, (ii) by registered or
certified mail, postage prepaid, return receipt requested, (iii) by nationally
recognized overnight courier service, or (iv) by facsimile where such notice is
electronically confirmed as received and is followed by delivery of a copy of
such notice in a manner described in (i), (ii), or (iii), to the following
addresses of the respective parties:
If to Vendor: IPNI Communications Corporation
Suite 285, 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000
Attn: President
Fax No. (000) 000-0000
If to GW: Glaxo Wellcome Inc.
Five Xxxxx Drive
Research Triangle Park; Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax No.: (000) 000-0000
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All notices shall be deemed communicated upon first delivery to the address
stated above as described in (i) - (iv) above. A party may change its address
listed above by notice to the other party.
20. FORCE MAJEURE. Any delay in the performance of any of the duties or
obligations of either party hereto (except the payment of money owed) shall not
be considered a breach of this Agreement and the time required for performance
shall be extended for a period equal to the period of such delay, provided that
such delay has been caused by or is the result of any acts of God; acts of
public enemies; insurrections; riots; embargoes, labor disputes, including
strikes, lockouts, job actions, or boycotts; fires; explosions; or floods. The
party so affected shall give prompt notice to the other party of such cause and
shall take whatever reasonable steps are necessary to relieve the effect of such
cause as rapidly as possible. Notwithstanding the foregoing Vendor's performance
of its duties and obligations under this Agreement shall not be delayed or
excused by reason of the failure of any hardware, software, or devices
(including but not limited to computers and computer systems) of Vendor or third
parties to process or store date information due to a "Failure" as defined in
Section 12(a).
21. GOVERNING LAW. Except where preempted by federal law, this Agreement will be
enforced, governed by, and construed in accordance with, the laws of the State
of North Carolina, excluding any choice of law principles that would cause the
law of any other jurisdiction to be applied. The parties hereto agree that the
proper and exclusive forum for any litigation of any disputes or controversies
arising out of or related to this Agreement shall be the courts of the State of
North Carolina in and for Durham County, and that the venue of any action
brought in federal courts will be the applicable U.S. Federal Judicial District
for residents of Durham County, North Carolina. The parties agree that such
courts shall have in personam jurisdiction over such disputes and controversies,
and the parties further waive any defense or objection to the jurisdiction or
venue of such courts under the doctrine of forum non conveniens.
22. COMPLETE AGREEMENT. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
other agreements, express or implied, oral or written, between the parties
relating to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement effective,
upon the full execution hereof as of the Effective Date first stated above.
GLAXO WELLCOME INC. IPNI COMMUNICATIONS CORPORATION
By:/s/ Xx XxXxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xx XxXxxx Name: Xxxx X. Xxxxxx
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Title: Title: President
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