EXHIBIT 10.1
EXECUTION COPY
MASTER SERVICES AGREEMENT
This Agreement (the "Agreement"), dated January 30, 2004 (the
"Effective Date"), is by and between Aventis Inc., a Pennsylvania corporation
having a principal place of business at 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000 ("Aventis"), and Zix Corporation, a Texas
corporation having a principal place of business at 0000 X. Xxxxxxx Xxxxxx,
Xxxxx 0000, XX 36, Xxxxxx, Xxxxx 00000-0000 ("Company").
WHEREAS, Aventis is engaged in the research, development, manufacture,
and marketing of pharmaceutical products; and
WHEREAS, Company is engaged in the business of providing care delivery
solutions and communication protection services; and
WHEREAS, Aventis proposes to retain Company to perform certain services
on the terms and subject to the conditions set forth in this Agreement and in
Individual Project Agreements (each, an "IPA");
WHEREAS, concurrently with the execution of this Agreement, Aventis and
Company are entering into that certain Security Agreement ("Security
Agreement"), that certain Secured Promissory Note ("Note"), and that certain
Registration Rights Agreement (the "Registration Rights Agreement") each of even
date herewith;
NOW THEREFORE, in consideration of the premises and the mutual promises
and undertakings herein contained, the parties agree as follows:
ARTICLE 1
SERVICES AND DELIVERABLES
1.1 Services. Aventis shall retain Company to provide services
(the "Services") as detailed in one or more IPAs in substance
as agreed by the parties and in form substantially as attached
hereto as Schedule A, or in such other format as may be agreed
by the parties from time to time. Each IPA shall be
sequentially numbered and executed by the parties, and is
incorporated by reference herein upon execution. Company shall
provide the Services in a professional and businesslike
manner, on a timely basis, in accordance with the applicable
IPA. Company acknowledges and agrees that Aventis may select,
at is option and in its sole discretion, any of the services
Company currently provides, which are listed in Schedule B
attached hereto, and Company may not refuse to perform any
such services selected by Aventis in any IPA, so long as
Aventis is not delinquent in paying any undisputed charges for
Services hereunder. Company shall update Schedule B from time
to time, but at least once each calendar year, to reflect any
new or additional services.
1.2 Deliverables. An IPA may provide that Company deliver to or
prepare for Aventis as part of the Services certain
information, materials, operating programs, and/or data (the
"Deliverables") as detailed therein. All Deliverables prepared
by Company (and all Draft Deliverables prepared by Company in
accordance with Section 6.1) shall be subject to review and
acceptance by Aventis in its reasonable discretion, subject to
any criteria set forth in the relevant IPA (and subject to
review for accuracy and appropriateness in accordance with the
standards determined by Aventis' Copy Review Committee, in the
case of Draft Deliverables). For avoidance of doubt, the term
"Services" as used herein includes the provision of any
related Deliverables.
1.3 Rejected Items. To the extent any Services, Deliverables or
Draft Deliverables are rejected by Aventis, Company shall, as
promptly as practicable, but in any event within thirty (30)
days, replace such Services, Deliverables or Draft
Deliverables, as the case may be, with acceptable or
conforming Services, Deliverables or Draft Deliverables,
unless otherwise agreed by the parties.
1.4 Equipment And Supplies. Except as may be expressly set forth
in an IPA, Company will be responsible for providing all
equipment, such as software, hardware, and office supplies,
that may be necessary for the provision of the Services and
Deliverables.
1.5 Personnel. In the event the employment with Company of any key
personnel agreed between Aventis and the Company to perform
any Services is terminated, or if Aventis notifies Company
that it is dissatisfied with the performance by any personnel
of Company performing Services, Company shall use commercially
reasonable efforts to promptly replace such personnel with
personnel of comparable ability, skill, and experience.
1.6 Third Party Performance. Company shall not engage a third
party to provide any Services or Deliverables under this
Agreement or otherwise subcontract any of its obligations
hereunder except (a) as expressly permitted in an IPA, (b)
with the prior written consent of Aventis, which consent shall
not be unreasonably withheld, conditioned or delayed, or (c)
such third parties as Company may engage in the ordinary
course of its business to provide non-substantive,
overhead-related items, such as internet service providers and
copy services; and in any case subject to Section 10.2(c).
ARTICLE 2
COMPENSATION AND EXPENSES
2.1 Project Payments. Aventis shall pay Company the amount
specified in each IPA in accordance with this Agreement.
Notwithstanding any payment mechanism provided for in this
Article 2, the amount specified in any IPA is the maximum
amount due from Aventis for Services and Deliverables provided
pursuant to that IPA.
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2.2 Cost Basis; Budgets Exclusive. Services may be provided either
on a fixed cost basis or on a time and materials basis, as the
parties may agree in an IPA. Where Services are provided under
an IPA on a time and materials basis, all expenses and costs
in connection with providing the relevant Services and
Deliverables, with the exception of reasonable, economy class
travel expenses (not including commuting costs), shall be
specified in the corresponding IPA, unless otherwise agreed to
in a writing signed by an authorized representative of each
party.
2.3 Invoices. Company invoices for Services performed pursuant to
this Agreement and any IPA shall reference the applicable IPA
and shall be delivered to Aventis on a monthly basis and
addressed to the attention of the Aventis Accounts Payable
Department at 000 Xxxxxxxx Xxxxxxxxx Xxxx., X.X. Xxx 0000,
Xxxxxxxxxxx, XX 00000-0000. Each Company invoice shall be
itemized in reasonable detail and accompanied by (a) copies of
third party provider invoices, if applicable, and (b) such
other supporting data as may be reasonably required by
Aventis. Aventis shall approve or dispute the charges set
forth in each Company invoice (whether pertaining to Company
charges or third party provider charges) in writing within
thirty (30) days after receipt by Aventis (a "Reconciliation
Notice"). A Reconciliation Notice notifying Company of any
disputed charges shall provide an explanation in reasonable
detail of the basis for such dispute. Payment for the disputed
portion of a Company invoice may be withheld by Aventis (or
deemed withheld, if Aventis is then carrying a credit pursuant
to Section 2.5), pending resolution of the dispute.
2.4 Third Party Payments. Company shall be responsible for the
payment of all third party providers with whom Company has
contracted in relation to this Agreement, and for all
salaries, benefits, taxes, fees and other liabilities in
connection with Company's employees. Invoices from any third
party providers shall be charged through to Aventis pursuant
to Section 2.3 at Company's actual cost therefor without
xxxx-up, commission, or other added charges. For clarity,
Company shall indemnify, defend, and hold Aventis harmless
from and against Company's failure to make payment to third
party providers or Company's employees in connection with
Services as required by this Section, which indemnification
shall be governed by the terms of Sections 5.3 and 5.4.
2.5 Company Payments.
(a) Up-Front Payment. Upon signing this Agreement,
Aventis shall pay $4,000,000 (the "Prepaid Amount")
to Company by certified check or wire transfer. Such
amount is a pre-payment of Company invoices approved
by Aventis pursuant to Section 2.3. The Prepaid
Amount (or such lesser amounts to which the Prepaid
Amount may be reduced from time to time pursuant to
this Section 2.5) shall show as a credit balance of
Aventis with the Company (the "Prepaid Credit") and
shall be used to pay for Services pursuant to clause
(b) below, subject to the Minimum Annual Requirements
(as defined in clause (c) below).
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(b) Payment Procedures. Within five (5) business days
after receipt of a Reconciliation Notice from
Aventis, Company shall confirm in writing to Aventis
the amount of the Prepaid Credit, if any, after
deducting all approved charges in such Reconciliation
Notice. In addition, within five (5) business days
after resolution of any disputed charges, Company
shall confirm in writing to Aventis the amount of the
Prepaid Credit, if any, after deducting any agreed
amounts. At such time when the Prepaid Credit shall
reach zero, all amounts subsequently due shall be
paid by Aventis in the following manner:
(i) first, by offset of any accrued interest
under the Note, until such accrued interest shall
reach zero;
(ii) then by offset of any principal amounts
outstanding under the Note, until the outstanding
principal amount of the Note shall reach zero; and
(iii) then in cash (by check or wire transfer)
within forty-five (45) days after delivery by Aventis
of the relevant Reconciliation Notice.
(c) Minimum Annual Requirements. Subject to Section
2.5(d) below, during the Term, Aventis shall,
pursuant to agreed IPAs, incur (pursuant to clause
(iv) below) Services during each period indicated
below such that total amounts payable to Company
(including all costs and fees whatsoever, whether
owed to Company, to a third party provider or
otherwise) for such periods equal at least the dollar
amount set forth opposite such period (collectively,
the "Minimum Annual Requirements"), or if Services
are not so incurred, forfeit any balances of Minimum
Annual Requirements in accordance with clause (i)
below; and Company shall use its good faith efforts
to ensure that sufficient services are available and
timely provided so that Aventis has the reasonable
opportunity to procure under agreed IPAs, and incur
(pursuant to clause (iv) below) charges for, such
minimum amounts of Services:
Service Period Minimum Service Value
-------------- ---------------------
First 12 months of Term ("Year 1") $1,000,000 ("Year 1 Minimum")
Second 12 months of Term ("Year 2") $1,000,000 ("Year 2 Minimum")
Third 12 months of Term ("Year 3") $2,000,000 ("Year 3 Minimum")
(i) In the event Aventis does not incur
(pursuant to clause (iv) below) in Year 1 Services
valued at an amount equal to or in excess of the Year
1 Minimum, the difference between the value of
Services incurred in Year 1 and the Year 1 Minimum
shall be retained by Company. In the event Aventis
does not incur (pursuant to clause (iv) below) in
Year 2 Services valued at an amount equal to or in
excess of the Year 2 Minimum, subject
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to adjustments to the Year 2 Minimum pursuant to
clause (ii) below, the difference between the value
of Services incurred in Year 2 and the adjusted Year
2 Minimum shall be retained by the Company. In the
event Aventis does not incur (pursuant to clause (iv)
below) in Year 3 Services valued at an amount equal
to or in excess of the Year 3 Minimum, subject to
adjustments in the Year 3 Minimum pursuant to clauses
(iii) below, the difference between the value of
Services incurred in Year 3 and the adjusted Year 3
Minimum shall be retained by the Company.
Notwithstanding the foregoing, in the event that
Aventis does not incur charges as set forth above due
in whole or in part to the fault of Company,
including by reason of delay or otherwise, then the
parties shall negotiate in good faith a fair and
equitable resolution which may extend the Year 1,
Year 2 or Year 3, as applicable, Service periods or
reduce the Annual Minimum Requirement.
(ii) The value of any Services incurred by
Aventis (pursuant to clause (iv) below) in Year 1 in
excess of the Year 1 Minimum shall be deducted from
the Year 2 Minimum for purposes of clause (i) above.
For example, if Aventis incurs $1,500,000 worth of
Services in Year 1, the Year 2 Minimum shall be
reduced to $500,000.
(iii) The value of any Services incurred by
Aventis (pursuant to clause (iv) below) in Year 2 in
excess of the Year 2 Minimum shall be deducted from
the Year 3 Minimum for purposes of clause (i) above.
For example, if Aventis incurs $1,500,000 worth of
Services in Year 2, the Year 3 Minimum shall be
reduced to $1,500,000.
(iv) Charges for Services will be deemed incurred
by Aventis (solely for purposes of allocations to the
Minimum Annual Requirements under this Section 2.5
and for no other purpose, whether accounting, legal
or otherwise), regardless of when invoiced by
Company, unless otherwise agreed by the parties in
writing in the relevant IPA:
(A) where Services are charged on a
milestone or per-Deliverable basis, on such
date as the milestone is achieved or as the
Deliverable has been delivered, regardless
of the date of acceptance by Aventis (for
example, if Services involve payment for a
software program, on such date as the
software program is first delivered to
Aventis, whether or not Aventis accepts the
program at such time);
(B) where Services are charged on a
time and materials basis, on such date as
Services are actually provided in fact (for
example, if web content is being developed
on a by-man-hour basis, on such date as the
man-hours are actually devoted to such
development);
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(C) where Services are charged on a
per-transaction basis, on such date as the
transaction is completed (for example, in an
adherence program where fees are charged on
a per-patient enrollment basis, on the date
a patient is offered enrollment);
in each case as determined by reference to the terms
of the applicable IPA, which is to contain applicable
charge bases, including Deliverables, if any, and the
price relating thereto.
In addition to the requirements of Section 2.3,
Company shall for each of the first three quarters of
each applicable year, provide to Aventis by the
fifteenth (15th) day of the beginning of each quarter
a report that sets forth the amount of Services that
have actually been deemed incurred pursuant to this
Section 2.5(c)(iv) for the preceding quarter and
shall, by the fifteenth (15th) day of each month
during the last quarter of each applicable year,
provide to Aventis a monthly report that sets forth
the amount of Services that have been deemed incurred
pursuant to this Section 2.5(c)(iv) for the preceding
month. Such reports shall be delivered to Xxxxxxx
XxXxxxxxx, with a copy to Vice President of U.S.
Commercial Operations, in each case at the address
for notice to Aventis set forth in Section 13.2, and
shall be in form and substance satisfactory to both
parties.
(d) Notwithstanding any other provision contained herein
to the contrary, as set forth in Section 3.15 of the
Registration Rights Agreement, the Year 1 Minimum,
Year 2 Minimum and Year 3 Minimum shall be reduced by
fifty percent (50%) each (the "Reduced Annual
Requirements") upon the occurrence of the event set
forth in Section 3.15 of the Registration Rights
Agreement in accordance with the terms therewith, and
any Prepaid Credit in excess of such Reduced Annual
Requirements shall be returned to Aventis upon
termination of this Agreement.
2.6 Taxes. Any sales or use taxes determined to be applicable as a
result of Services covered by this Agreement or any IPA shall
be the responsibility of Aventis. All other taxes shall be the
responsibility of Company. Company's Federal Tax I.D. is
00-0000000-0.
2.7 Most Favored Customer. Notwithstanding anything in this
Agreement to the contrary, or any rates or pricing agreed in
any IPA, if at any time during the term of this Agreement
Company sells or provides services similar to the Services to
any customer at rates or upon economic terms and conditions
more favorable than those accorded to Aventis (as determined
after giving effect to volume discounts made available to
other customers), Company shall promptly offer Aventis the
benefit of such more favorable terms and conditions or rates,
which, upon acceptance, shall be retroactive to the date that
such more favorable terms and conditions were first effective
for such other customer; provided, that Company shall not be
required to offer Aventis any such more favorable terms or
conditions
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where such terms and conditions are given by Company to a
customer that has committed in writing to purchase services
from Company in an aggregate amount equal to or exceeding $ *
million during any three year period. Upon Aventis' reasonable
request from time to time, Company shall provide written
confirmation that it is in compliance with the requirements of
this Section. For avoidance of doubt, any changes in rates or
pricing shall not affect the aggregate amounts of the Minimum
Annual Requirements.
2.8 Audits. Aventis shall have the right to audit Company's books
and records to confirm compliance by Company with its
obligations under this Agreement, at reasonable times and
places, at Aventis' sole expense, either through Aventis'
internal audit department or a third party selected by
Aventis; provided, however, that in the event such audit
reveals that Company has overcharged Aventis for any Services
under any IPA by five percent (5%) or more, Company shall
refund such overcharges to Aventis within five (5) business
days and shall bear all out-of-pocket costs and expenses of
Aventis incurred in connection with such audit. Unless
otherwise agreed to by the parties in writing, Company shall
retain its books and records relating to Services under any
IPA for a period of at least three (3) years following the
completion of such IPA.
ARTICLE 3
CONFIDENTIALITY
3.1 Disclosure of Information. Aventis and Company may disclose to
each other certain proprietary, confidential, and/or trade
secret information ("Confidential Information") in connection
with the Services. The party disclosing Confidential
Information shall be referred to as the "Discloser" and the
party receiving Confidential Information shall be referred to
as the "Recipient."
3.2 Obligations of Confidentiality. Recipient shall hold in strict
confidence, from the Effective Date until ten (10) years after
termination or expiration of this Agreement, whichever occurs
first, all of Discloser's Confidential Information that is
either (a) marked "Confidential" at the time of disclosure, or
(b) designated by Discloser to be confidential in writing
received by Recipient within thirty (30) days following
disclosure. Notwithstanding the foregoing, (i) all
Deliverables that are owned by Aventis, as established
pursuant to Article 9, shall be deemed Confidential
Information of Aventis unless otherwise agreed in writing by
Aventis and (ii) the fact of, terms and conditions of, and
subject matter of this Agreement shall be deemed Confidential
Information of each party.
3.3 Non-Use And Non-Disclosure. Recipient shall not (a) use or
disclose Discloser's Confidential Information except as
expressly permitted by this Agreement, or (b) disclose
Discloser's Confidential Information to any third party other
than to
---------------------------
* Indicated confidential text omitted and filed separately with the Securities
and Exchange Commission.
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those of the Recipient's employees and agents who (i) have a
need to have access to such Confidential Information in order
to perform the Services and (ii) agree in writing to comply
with the confidentiality provisions of this Article 3.
3.4 Exceptions to Obligations. This Article 3 imposes no
obligation of confidentiality on Recipient with regard to any
portion of the Discloser's Confidential Information:
(a) that is part of the public domain at the time of
disclosure; or
(b) that becomes part of the public domain after the
Effective Date without any unauthorized act by or
omission of Recipient; or
(c) if Recipient can demonstrate by written records that
it (i) had independently developed knowledge of such
Confidential Information prior to or after the date
of disclosure without use of, reference to, or
reliance upon Confidential Information disclosed to
it by Discloser and (ii) did not develop such
knowledge during the course of performing Recipient's
obligations pursuant to this Agreement; or
(d) that is disclosed to Recipient by a third party who
has the legal right to make such disclosure; or
(e) if permission to use or disclose said Confidential
Information or to make use thereof is first obtained
by Recipient in a writing signed by an authorized
representative of Discloser; or
(f) if Recipient is required by law, regulation, rule,
act, or order of any court or other government
authority or agency or any stock exchange to disclose
such Confidential Information; provided, however,
that Recipient shall (i) give Discloser sufficient
advance written notice to permit Discloser to seek a
protective order or other similar order with respect
to such Confidential Information, and (ii) thereafter
disclose only the minimum Confidential Information
required to be disclosed in order to comply, whether
or not a protective order or other similar order is
obtained by Discloser.
3.5 No License or Right. Disclosure of Confidential Information
under this Agreement shall not be construed to create in or
grant or provide to Recipient any license, right, title,
interest, or ownership in or to any of Discloser's
Confidential Information.
3.6 Standard of Care. Recipient shall use the same degree of care
to protect the Discloser's Confidential Information as
Recipient uses to protect its own Confidential Information,
but in no event shall Recipient exercise anything less than a
reasonable degree of care in protecting Discloser's
Confidential Information.
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3.7 Return of Information. Upon Discloser's request or at the
termination or expiration of the Agreement pursuant to Article
4, Recipient shall return to Discloser any or all written,
printed, visual, or digital media, documents, tapes, and other
materials or substances containing Discloser's Confidential
Information, including all copies and excerpts thereof then in
Recipient's possession or control. The return of Discloser's
Confidential Information shall not relieve Recipient of its
obligations of confidentiality pursuant to this Article 3.
3.8 Unauthorized Use. If either party becomes aware of or has
knowledge of any unauthorized use or disclosure of the other
party's Confidential Information, it shall promptly notify the
Discloser of such unauthorized use or disclosure. For clarity,
such notification shall not relieve a Recipient of any
liability in connection with a breach by it of any of the
other provisions of this Article 3.
3.9 Restrictions on Disclosure of Relationship. Notwithstanding
anything to the contrary contained in this Article 3, Company
shall not disclose to any third party, including but not
limited to any physician or other healthcare provider, whether
in writing, orally or otherwise, that Aventis has retained
Company for professional services, without the prior written
consent of Aventis. Neither party shall issue any press
release regarding this Agreement without the prior review and
written approval of the other party.
3.10 Publicity/Announcements. Except as set forth below, no
announcement or other disclosure, public or otherwise,
concerning the financial or other terms of this Agreement
shall be made, either directly or indirectly, by any party to
this Agreement, except as may be legally required, without
first obtaining the written approval of the other party and
agreement upon the nature and text of such announcement or
disclosure, such approval and agreement not to be unreasonably
withheld. The party desiring to make any announcement or other
disclosure concerning the terms of this Agreement shall
provide the other party with a copy of the proposed
announcement or disclosure for review and comment in
reasonably sufficient time prior to undertaking the
announcement or disclosure. Notwithstanding the foregoing,
Aventis acknowledges and agrees that the Company shall be
permitted to file this Agreement with the Securities and
Exchange Commission in accordance with applicable law. Company
will coordinate in advance with Aventis on the terms of this
Agreement that Company shall seek to be redacted in any SEC
filings, and Company shall use reasonable efforts to seek
confidential treatment for such terms that Company and Aventis
may each request, to the extent confidential treatment is
available for such terms.
3.11 Equitable Relief. Each party recognizes the material nature of
the provisions of this Article 3 and acknowledges that
unauthorized disclosure may cause the other party irreparable
harm, and agrees that any breach or threatened breach of this
provision by such party shall entitle the other party to seek
injunctive relief, in addition to any other legal or equitable
remedies available to it, in any court of competent
jurisdiction.
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ARTICLE 4
TERM AND TERMINATION
4.1 Term. Unless terminated earlier in accordance with this
Article 4, this Agreement shall remain in full force and
effect from the Effective Date until the later of (a) the
three (3) year anniversary of the Effective Date or (b) the
completion of any longer service period expressly set forth in
an IPA in effect as of the three (3) year anniversary of the
Effective Date. Upon expiration of this Agreement under this
Section 4.1 (i.e., if this Agreement is not earlier terminated
in accordance with this Article 4), the Prepaid Credit shall
be governed by Sections 2.5(c) and 2.5(d); and any other
pre-paid, but unexpended funds, of Aventis shall be returned
to Aventis.
4.2 Termination for Regulatory Matters. Aventis shall have the
right to terminate any IPA or this Agreement in its entirety
immediately upon written notice to Company (a) in the event
the U.S. Food and Drug Administration (the "FDA"), any other
regulatory agency, or any applicable law, rule, or regulation
prohibits the Services contemplated thereby or hereby, or if
by such agency's intervention it becomes unfeasible for
Aventis to continue to use the Services contemplated thereby
or hereby, or (b) pursuant to Section 8.2.
4.3 Termination for Material Breach. In the event that either
party commits a breach or default of any material term of this
Agreement and that party (the "Defaulting Party") fails to
remedy that default or breach within thirty (30) days after
receipt of written notice of that breach (which notice
specifies the basis for such breach in reasonable detail) from
the other party, the party giving notice may, at its option,
terminate this Agreement by sending written notice of
termination ("Termination Notice") to the Defaulting Party.
The Agreement shall terminate three (3) business days after
the date of the Termination Notice. In addition, each party
shall have the right to terminate this Agreement in accordance
with the provisions of Section 14.1.
4.4 Termination for Convenience. Aventis shall have the right to
terminate this Agreement for any reason, at any time, by
giving written notice at least thirty (30) days prior to the
desired termination date. After such time as Aventis has a
zero credit balance under Section 2.5, Company shall have the
right to terminate this Agreement for any reason, at any time,
by giving written notice at least thirty (30) days prior to
the desired termination date.
4.5 Automatic Termination for Bankruptcy. In the event either
party becomes insolvent, makes an assignment for the benefit
of creditors, files a petition for bankruptcy, is the subject
of a petition for bankruptcy which is not dismissed within
ninety (90) days from the filing thereof, becomes the subject
of any receivership or admits in writing its inability to pay
its debt generally as they become due, this Agreement will
automatically terminate, and the solvent party
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shall be entitled to recover any payments which could be
recovered from the insolvent party in the event of default.
4.6 Effect of Termination.
(a) General. In the case of early termination of the
Agreement pursuant to Section 14.1, 4.2, 4.3 or 4.4,
or under Section 4.5, Company shall terminate any
outstanding commitments and discontinue all work
under this Agreement, and Company shall not be
entitled to any further compensation other than for
(i) unpaid fees for Services rendered satisfactorily
and expenses incurred by Company as authorized by any
IPA pending as of the date of termination, (ii)
unpaid expenses for reasonable, non-cancellable
obligations incurred or committed to be incurred by
Company pursuant to any IPA pending as of the date of
termination, unless Aventis objects to any charge, in
which case the parties shall use their commercially
reasonable efforts to resolve expeditiously any
disagreement, and (iii) as may be permitted under
clause (b) or (c) below. In no case shall
reimbursement pursuant to this Section for any IPA
pending as of the date of termination exceed the
total compensation for Services and expenses
specified in that IPA or include anticipated profits
in connection with Services not actually performed.
(b) Termination by Aventis. Notwithstanding the
provisions of Section 2.5(c):
(i) In the case of early termination by
Aventis pursuant to Section 4.2(b), Section 14.1,
Section 4.3 or under Section 4.5 as a result of the
insolvency of or similar occurrence to Company, the
Prepaid Credit shall be returned to Aventis; and any
other pre-paid, but unexpended funds, of Aventis
shall be returned to Aventis, subject to clause
(a)(ii) above.
(ii) In the case of early termination by
Aventis pursuant to Section 4.2(a) or Section 4.4,
the Prepaid Credit shall be retained by Company; but
any other pre-paid, but unexpended funds, of Aventis
shall be returned to Aventis, subject to clause
(a)(ii) above.
(c) Termination by Company. In the case of early
termination by Company pursuant to Section 4.3 or
under Section 4.5 as a result of insolvency of or
similar occurrence to Aventis, the Prepaid Credit
shall be retained by Company; but any other pre-paid,
but unexpended funds, of Aventis shall be returned to
Aventis, subject to clause (a)(ii) above.
(d) Payments. Any return of funds from Company to Aventis
required under this Section 4.6 shall be made within
thirty (30) days after the date of termination.
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4.7 Effect of Partial Termination. In the event termination of one
or more IPAs does not result in termination of the Agreement,
the parties' rights and responsibilities with respect to the
terminated IPAs shall be determined with reference to the
relevant subsection of this Article 4, such that, for example,
early termination of an IPA would be governed by Sections 4.4
and/or 4.6, as applicable.
4.8 No Impairment of Claims. The expiration or termination of this
Agreement or any IPA shall not impair, and the parties shall
retain, all claims, causes of action, defenses, and other
rights that they may have at law or in equity accruing prior
thereto.
ARTICLE 5
INDEMNIFICATION
5.1 Aventis Indemnification Obligations. Aventis shall defend,
indemnify, and hold harmless Company and its officers,
directors, affiliates, and agents from and against any claims,
proceedings, or investigations (collectively "Claims") arising
out of or in connection with Aventis' negligence or willful
misconduct in carrying out the terms of this Agreement, or
breach of this Agreement (including but not limited to Claims
for misuse of information or violation of any right to
privacy), including but not limited to amounts paid in
settlement of Claims and costs and expenses, including
reasonable attorneys' fees, incurred in connection with the
defense or settlement of any such Claim. Aventis' obligations
under this Section shall not extend to Claims relating to or
arising from Company's negligence or willful misconduct in
carrying out the of terms of this Agreement, or breach of this
Agreement (including but not limited to Claims for misuse of
information or violation of any right to privacy).
5.2 Conditions to Aventis Obligations. Aventis' obligations under
Section 5.1 are conditioned upon Company giving Aventis (a)
written notice of the Claim within five (5) business days of
the date that Company first becomes aware of the Claim, or
earlier if necessary to prevent prejudice to Aventis, and (b)
reasonable assistance in the defense of any Claim, including
but not limited to the provision of documents, witness
testimony, and interviews. Aventis shall have the sole right
to choose counsel to defend any Claim, and Aventis shall have
the right to settle or otherwise resolve any such Claim
without the prior written consent of Company so long as such
settlement or resolution involves only the payment of money by
Aventis and provides a complete release of Company. Company,
at its own expense, may be represented by separate counsel in
addition to the counsel selected by Aventis pursuant to this
Section. In the event that representation of Company and
Aventis by the same counsel would be a conflict of interest
for such counsel, Company may select its own independent
counsel without relieving Aventis of its responsibilities
pursuant to this Section. Notwithstanding the terms of Section
5.2(a), Aventis' obligations under Section 5.1 shall not be
relieved if Company provides Aventis with notice of a Claim in
sufficient time to permit
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Aventis to timely answer, plead, or otherwise respond to such
Claim without prejudice.
5.3 Company Indemnification Obligations. Company shall defend,
indemnify, and hold harmless Aventis and its subsidiaries, and
their respective officers, directors, affiliates, and agents
from and against any Claims arising out of or in connection
with (a) the Company's negligence or willful misconduct in
carrying out the terms of this Agreement, (b) breach of this
Agreement (including but not limited to Claims for misuse of
information or violation of any right to privacy), and (c)
infringement of third party rights as provided in Section 9.1,
including but not limited to amounts paid in settlement of
Claims and costs and expenses, including reasonable attorneys'
fees, incurred in connection with the defense or settlement of
such Claim. Company's obligations under this Section shall not
extend to Claims relating to or arising from Aventis'
negligence or willful misconduct in carrying out the terms of
this Agreement, or breach of this Agreement (including but not
limited to Claims for misuse of information or violation of
any right to privacy). Without limiting the foregoing, Company
also shall indemnify, defend, and hold harmless Aventis and
its subsidiaries, and their respective officers, directors,
affiliates, and agents from and against any and all Claims
relating to Company's non-compliance in providing the Services
with the requirements of laws and/or regulations pertaining to
confidentiality and security of personal and medical data,
including but not limited to claims relating to the Health
Insurance Portability and Accountability Act of 1996, as
amended ("HIPAA"), and any laws and/or regulations relating to
the maintenance, use, transmission or other activity
concerning patient records and confidentiality of medical
data.
5.4 Conditions to Company Obligations. Company's obligations under
Section 5.3 are conditioned upon Aventis giving (a) Company
written notice of the Claim within five (5) business days of
the date that Aventis first becomes aware of the Claim, or
earlier if necessary to prevent prejudice to Company, and (b)
reasonable assistance in the defense of any Claim, including
but not limited to provision of documents, witness testimony,
and interviews. Company shall have the sole right to choose
counsel to defend any Claim, and Company shall have the right
to settle or otherwise resolve any such Claim without the
prior written consent of Aventis so long as such settlement or
resolution involves only the payment of money by Company and
provides a complete release of Aventis. Aventis, at its own
expense, may be represented by separate counsel in addition to
counsel selected by Company pursuant to this Section. In the
event that representation of Company and Aventis by the same
counsel would be a conflict of interest for such counsel,
Aventis may select its own independent counsel without
relieving Company of its responsibilities pursuant to this
Section. Notwithstanding the terms of Section 5.4(a),
Company's obligations under Section 5.3 shall not be relieved
if Aventis provides Company with notice of a Claim in
sufficient time to permit Company to timely answer, plead, or
otherwise respond to such Claim without prejudice.
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ARTICLE 6
COPY REVIEW REQUIREMENTS
6.1 Submission for Review. Without limiting the provisions of
Section 1.2, Company shall submit to Aventis drafts of all
written, printed, digital text or graphic, or other viewable
or readable Deliverables ("Draft Deliverables") (a) that (i)
directly or indirectly reference Aventis or its products
(including references or use of trademarks, tradenames, logos
and similar items) and (ii) are intended for distribution by
Aventis or Company either internally or externally to third
parties, or (b) as otherwise directed by Aventis. Draft
Deliverables shall be reviewed and approved by Aventis for
accuracy and appropriateness pursuant to Aventis' internal
policies and procedures. Only Draft Deliverables that have
been reviewed and finally approved by Aventis in writing shall
be deemed "Approved Copy".
6.2 Changes to Drafts; Compliance. Company shall incorporate all
corrections, suggestions, and changes to Draft Deliverables
required by Aventis. Company is responsible for ensuring that
the final version of all Deliverables is identical to Approved
Copy.
6.3 Specific Indemnification. Company shall defend, indemnify, and
hold harmless Aventis in accordance with Sections 5.3 and 5.4
from and against any Claims arising out of or in connection
with Company's failure to perform its obligations set forth in
Sections 6.1 and 6.2. Company's obligations pursuant to this
Section shall include but are not limited to the cost of
developing and producing the Deliverables, the cost of
destruction of the Deliverables, and the cost of all remedial
acts that may be required by any state, local or federal
agency with respect to the use by Aventis of any of such
materials.
ARTICLE 7
INDEPENDENT CONTRACTOR
7.1 Nature of Relationship. Company shall perform the Services
under this Agreement only as an independent contractor, and
nothing contained herein shall be construed to be inconsistent
with that relationship or status. Company, its officers,
directors, employees, contractors, and agents shall not be
considered employees or agents of Aventis. Company shall have
no authority to sign any agreement with a third party on
behalf of Aventis or otherwise to bind Aventis in any manner.
7.2 No Joint Business. This Agreement shall not constitute,
create, or in any way be interpreted as a joint venture,
partnership, or business organization of any kind.
- 14 -
ARTICLE 8
REGULATORY REQUIREMENTS
8.1 Compliance with Laws. Company shall comply with all foreign
and United States federal, state and local laws and
regulations applicable to it in connection with its
performance of the Services and its other obligations under
this Agreement (collectively, "Laws"). Without limiting the
generality of the foregoing:
(a) Company shall comply with all Laws regarding
manufacture, testing, distribution, sale, and/or
promotion of pharmaceutical products and medical
devices, including but not limited to, all Laws
relating to required permits, licenses, filings,
certifications, and other approvals required by the
FDA or similar state, local or foreign agency;
(b) Company shall comply with (i) the Anti-Kickback
provisions of the Social Security Act, 42 U.S.C.
Section 1320a-7b, et seq., and the relevant
regulations at 42 C.F.R. Part 1001, and (ii) the
False Claims Act, 31 U.S.C. Section 3729; and
(c) Company shall comply with all Laws relating to the
confidentiality and security of personal and medical
data, including but not limited to HIPAA, and any
other Laws relating to the collection, storage,
maintenance, use, transmission, disclosure or other
activity concerning patient records and
confidentiality of personal and medical data.
8.2 No Debarred Agents. Company represents and certifies that
neither the Company nor any person or entity employed or
engaged by Company, including without limitation, its
employees, contractors, consultants or agents who will provide
Services in connection with this Agreement (collectively
"Personnel") have ever been and are not currently debarred
pursuant to the Generic Drug Enforcement Act of 1992, 21
U.S.C. Section 335(a), as amended, or any similar state, local
or foreign law (collectively "Debarred"), excluded by the
Office of Inspector General pursuant to 42 U.S.C. Section
1320a-7, et seq. or any state agency from participation in any
federal or state health care program (collectively "Excluded")
or otherwise disqualified or restricted by the FDA pursuant to
21 C.F.R. 312.70 or any other regulatory authority
(collectively "Disqualified"), nor will Company utilize any
Debarred, Excluded or Disqualified Personnel to provide any
Services hereunder. During the term of this Agreement, if
Company or any Personnel is Debarred, Excluded or otherwise
Disqualified, Company shall immediately notify Aventis in
writing. Upon receipt of such notice by Aventis, or if Aventis
becomes aware of a threatened Debarment, Exclusion or
Disqualification, Aventis shall have the right to terminate
this Agreement immediately by written notice to Company.
Company represents and warrants that it has not been convicted
of any crime or engaged in any conduct for which it or its
Personnel could be Debarred, Excluded or Disqualified.
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ARTICLE 9
INTELLECTUAL PROPERTY RIGHTS
9.1 Right to Use. Company represents and warrants that Company has
the right to use and disseminate and may use and disseminate
third party information when collecting, compiling, and
maintaining Draft Deliverables and Deliverables that Company
furnishes to Aventis under this Agreement. Company shall
indemnify Aventis in accordance with the applicable terms of
Article 5 for any Claim that any Draft Deliverables or
Deliverables infringe upon any patent, trademark, copyright,
or other intellectual property right belonging to any third
party. Company shall be responsible for obtaining the written
consent of owners of rights to any third party materials
provided to Aventis as all or any part of the Services or
Deliverables in order to procure for Aventis the right to
fully use such materials, and shall promptly provide a copy of
any such consents to Aventis upon Aventis' request.
9.2 Ownership of Developments.
(a) Except as expressly provided in an IPA, as between
Aventis and Company, the ownership of all statutory
and common law rights, including but not limited to
copyright and other intellectual property rights
(collectively, "Ownership Rights"), to all Draft
Deliverables, all Deliverables, and all other
materials, including all inventions, innovations,
improvements, modifications, know-how, discoveries
and developments, whether or not patentable or
copyrightable, created or reduced to practice during
the course of the Company providing Services or
resulting from an IPA (such Draft Deliverables,
Deliverables and other materials, collectively,
"Developments"), shall be allocated between Aventis
and the Company, whether Developments have been
prepared by such party or its employees, independent
contractors hired by such party or any other third
party providers, as follows:
(i) any Developments created or reduced to
practice solely by Aventis shall be owned by Aventis;
(ii) any Developments created or reduced to
practice jointly by Aventis and Company (including
their respective employees and other independent
contractors and agents) shall be jointly owned by
Aventis and Company; provided, however, that any
Developments which are customized to Aventis'
specifications or otherwise pertain solely to Aventis
or its business and operations shall be owned solely
by Aventis notwithstanding such joint development;
and
(iii) any Developments created or reduced to
practice solely by Company shall be owned as follows:
- 16 -
(A) any such Developments with general
application in any industry shall be owned by
Company;
(B) any such Developments with general
application in the pharmaceutical industry shall be
owned by Company, but Company hereby grants Aventis a
perpetual (notwithstanding any termination of this
Agreement or any transfer by Company of Ownership
Rights in such Developments to any third party),
worldwide, non-exclusive, transferable, royalty-free
right and license, with the right to grant
sublicenses, to use such Developments for any
purpose; and
(C) any such Developments which are
customized to Aventis' specifications or otherwise
pertain solely to Aventis or its business and
operations shall be owned by Aventis.
(b) Each party shall execute assignments of Ownership
Rights and shall be responsible for obtaining
assignments of Ownership Rights from third parties
sufficient to transfer to or vest in the other party,
to the extent the other party is entitled thereto
pursuant to this Section 9.2, the Ownership Rights,
at no additional charge to such other party.
(c) For clarity, Ownership Rights in and to any
previously existing materials proprietary to a party
(which such party can prove by written documentation
were in existence and owned by such party prior to
the Company providing the relevant Services to
Aventis, and not including any improvements or
modifications thereto or inventions included therein
constituting Developments), shall not constitute
Developments and, as between Aventis and Company,
shall be retained by such party.
9.3 Work for Hire; Licenses. Aventis and Company agree that all
Developments which Aventis owns or has the right to own, as
determined pursuant to Section 9.2, are a "Work Made for Hire"
under the United States Copyright law. To the extent any
Services, Draft Deliverables or Deliverables include any (a)
Developments which Company owns or has a right to own, as
determined by Section 9.2(a), (b) any intellectual property of
Company which Company owns as determined by Section 9.2(c), or
(c) any intellectual property of any third party, Company
hereby grants to Aventis or shall obtain for the benefit of
Aventis a perpetual, worldwide, non-exclusive, transferable,
royalty-free right and license to use such materials for
purposes of obtaining the benefits of the Services hereunder.
9.4 No Use of Trademarks. Both parties agree not to use any of
other party's trademarks or trade names without the prior
express written consent of the other party.
- 17 -
9.5 No License or Right. Nothing in this Agreement shall be
construed to create in or grant or provide to Company any
license, right, title, interest, or ownership in or to any
Aventis intellectual property or other proprietary rights of
Aventis.
ARTICLE 10
REPRESENTATIONS, WARRANTIES AND COVENANTS.
10.1 Mutual Representations, Warranties and Covenants. Each of
Company and Aventis represent and warrant to each other that
(a) it has the full right and power to enter into and perform
this Agreement, (b) this Agreement constitutes its legal,
valid and binding obligation, and (c) to the best of its
knowledge, it has not entered into as of the Effective Date,
and will not enter into after the Effective Date, any
agreements or commitments which could reasonably be expected
to impair or prevent it from carrying out all of its
obligations hereunder.
10.2 Additional Representations, Warranties and Covenants of
Company.
(a) Company represents, warrants and covenants that has
sufficient legal title and/or beneficial title under
its intellectual property rights necessary to provide
the Services and Deliverables and to otherwise
carryout its obligations under this Agreement.
(b) Company represents, warrants and covenants that its
use of any personal information, including patient
and physician information which it collects,
receives, or has access to as a result of providing
the Services hereunder will be used solely for
purposes of providing the Services and it will not
otherwise use or disclose such information to third
parties.
(c) Company represents, warrants and covenants that it
will not engage a third party to provide Services or
Deliverables hereunder unless and until such third
party has agreed to be bound by obligations of
non-disclosure and non-use no less restrictive than
the obligations of non-disclosure and non-use
applicable to Company hereunder.
10.3 Right of First Refusal.
(a) For purposes of this Section 10.3, the term "Aventis
Products" shall mean the following prescription
pharmaceutical products of Aventis: (i) until such
time as the product Apedra(R)is launched in the
United States, Amaryl(R)and Lantus(R), and (ii) upon
the launch of Apedra(R)in the United States,
Amaryl(R), Lantus(R)and Apedra(R). The term
"Competing Product" means (i) until such time as the
product Apedra(R)is launched in the United States,
Glucotrol(R), Humalin(R), and Novolin(R), and (ii)
upon the launch of Apedra(R)in the United States,
Glucotrol(R), Humalin(R), Novolin(R), Novolog(R),
Humalog(R), Novolin R(R), and Humalin R(R). The
parties shall negotiate in good faith to add specific
products to the foregoing definition of Competing
Products in the event third parties
- 18 -
obtain approvals to commercialize new products that
compete with Aventis Products.
(b) During the period commencing on the Effective Date
and ending on the earlier to occur of (i) the three
(3) year anniversary of the Effective Date, (ii) the
date on which the Prepaid Credit reaches a zero
balance and (iii) the termination of this Agreement
(such period, the "ROFR Period"), Aventis shall have
the first right and option to obtain Services for the
Aventis Products, to the exclusion of all Competing
Products. Accordingly, in the event that, during the
ROFR Period, any third party seeks to obtain services
from Company for a Competing Product and Company is
not already providing Services for an Aventis Product
(which case is governed by clause (d) below), Company
shall promptly notify Aventis of such opportunity,
including in reasonable detail the types of services
requested and the proposed duration and fees therefor
(the "ROFR Notice"). Notwithstanding the foregoing,
the right of first refusal set forth in this Section
10.3 shall not apply to Services or products offered
by Company to insurers or healthcare plans relating
to a specific pharmaceutical product.
(c) Within thirty (30) days following receipt by Aventis
of the ROFR Notice, Aventis shall advise Company
whether it desires to obtain Services for an Aventis
Product. If Aventis elects, at its option and in its
sole discretion, to so obtain Services, then the
parties shall negotiate in good faith an IPA between
Aventis and Company pursuant to which Company will
provide Services for such Aventis Product. In the
event the parties are unable to reach mutually
acceptable terms for an IPA within sixty (60) days of
commencing negotiations, Company shall be free to
enter into an agreement to provide services in
respect of the Competing Product on terms no less
favorable to Company than those last offered by
Aventis. If Aventis elects not to obtain Services for
an Aventis Product or fails to respond to the ROFR
Notice within such 30-day period, then Company shall
be free to provide services in connection with
Competing Products.
(d) Company represents, warrants and covenants that, (i)
during the ROFR Period, it will not enter into any
agreement that would impair or prevent its ability to
comply with clause (c) above, and (ii) during the
ROFR Period, if it is providing Services to Aventis
in connection with an Aventis Product, it shall not
provide any services to any third party in connection
with any Competing Product.
ARTICLE 11
LIMITATION OF LIABILITIES
11.1 No Consequential or Punitive Damages. Except as otherwise
provided in this Agreement, in no event shall either party be
liable to the other for any special,
- 19 -
incidental, punitive or consequential damages arising out of
or in connection with the use or performance of the Services
or Deliverables.
11.2 No Implied Warranties. Except for warranties expressly set
forth in this Agreement, Company makes no implied warranties,
including but not limited to any implied warranty of
merchantability or fitness for a particular purpose, with
respect to the Services and the Deliverables.
ARTICLE 12
INSURANCE
12.1 Minimum Requirements. Company shall maintain insurance
policies in the minimum amounts as follows: (a) Comprehensive
General Liability (including Contractual Liability, Bodily
Injury, Property Damage, and Personal Injury) in the amount of
$1,000,000, combined single limit; (b) Comprehensive
Automobile Liability (Bodily Injury and Property Damage) in
the amount of $500,000, combined single limit; (c) Employers'
Liability in the amount of $100,000 per accident and $500,000
per disease; and (d) Workers Compensation and Employee
Liability as required by the laws of the state in which
Services are being performed. During the term of this
Agreement, Company shall not permit such insurance to be
reduced, expired, or cancelled without reasonable prior
written notice to Aventis. Upon request, Company shall provide
a Certificate of Insurance to Aventis.
ARTICLE 13
COMMUNICATIONS AND PAYMENTS
13.1 Payments. Checks for Services shall be made payable to: "Zix
Corporation" and sent to:
Zix Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000, XX 36
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxx
Facsimile No.: (000) 000-0000
Checks for any refunds of payments or pre-payments for
Services shall be made payable to: "Aventis Inc." and sent to:
Aventis Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X'Xxxxx
Facsimile No.: (000) 000-0000
- 20 -
13.2 Notice. Any notice required or permitted hereunder shall be in
writing and shall be deemed given as follows and addressed to
the party to receive such notice at the address(es) and/or
facsimile telephone number(s) set forth below, or such other
address as is subsequently specified to the notifying party by
the receiving party in writing:
(a) the date it is delivered by hand;
(b) three (3) business days after being sent by
Registered or Certified Mail, postage prepaid, return
receipt requested;
(c) the date it is dispatched by facsimile, and confirmed
in writing simultaneously dispatched; or
(d) one (1) business day after dispatched by nationally
recognized overnight courier.
If to Company, notice should be sent to:
Zix Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxx 0000, XX 36
Xxxxxx, Xxxxx 00000-0000
Attention: Legal Department
Facsimile No.: (000) 000-0000
If to Aventis, notice should be sent to:
Aventis Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
P.O. Box 6890, SC3-830A
Bridgewater, New Jersey 08807-0977
Attention: General Counsel
Facsimile No.: (000) 000-0000
With a copy to:
Aventis Pharmaceuticals Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: General Counsel, North America
Facsimile No.: (000) 000-0000
- 21 -
ARTICLE 14
MISCELLANEOUS
14.1 Force Majeure. Notwithstanding anything to the contrary
contained herein, neither Aventis nor Company shall be liable
for delays in performing or any failure to perform any of the
terms of this Agreement caused by the effects of fire, strike,
war, insurrection, government restriction or prohibition, or
other similar causes reasonably beyond its control and without
its fault, but the party failing to perform shall use all
reasonable efforts to resume performance of this Agreement as
soon as feasible. Any episode of force majeure which continues
for sixty (60) days from the date of notification of its
existence shall give the non-affected party the right to
terminate this Agreement upon thirty (30) days' additional
notice.
14.2 Assignment. Neither party shall have the right to assign this
Agreement or any of the rights or obligations hereunder
without the prior written consent of the other party, except
that (a) either party may assign this Agreement (and/or one or
more IPAs hereunder) to a successor or assignee of
substantially all of its assets, and (b) Aventis may assign
this Agreement (and/or one or more IPAs hereunder) to an
affiliate or a subsidiary or a successor to that area of its
business to which this Agreement is related.
14.3 Entire Agreement; Modification. This Agreement and the IPAs,
together with the Security Agreement, the Note, and the
Registration Rights Agreement constitute the entire agreement
between the parties on the subject matter and supersede all
prior contracts, agreements and understandings relating to the
same subject matter between the parties. The parties intend
this Agreement to be a complete statement of the terms of
their agreement, and no change or modification of any of the
provisions of this Agreement shall be effective unless it is
in writing and signed by a duly authorized representative of
each of Company and Aventis.
14.4 Governing Law. This Agreement shall be governed by the laws of
the State of New Jersey, without regard to its conflict of
laws rules.
14.5 Severability. If any part of this Agreement shall be
determined to be invalid or unenforceable by a court of
competent jurisdiction or by any other legally constituted
body having jurisdiction to make such determination, the
remainder of this Agreement shall remain in full force and
effect, provided that the part of the Agreement thus
invalidated or declared unenforceable is not essential to the
intended purposes of this Agreement.
14.6 Waiver. The failure of either party to demand strict
performance of any term or condition of this Agreement shall
not constitute a waiver thereof or in any way limit or prevent
subsequent strict enforcement of such term or condition.
- 22 -
14.7 Binding Effects. The terms of this Agreement shall be binding
upon and inure to the benefit of Company, Aventis and their
respective successors and permitted assigns.
14.8 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but
all of which taken together shall constitute one and the same
instrument.
14.9 Survival. The obligations of Company under Sections 2.4 and
2.7, and Articles 3, 5, 7, 9, 10, 13, and this Article 14, and
Aventis' obligations under Articles 3, 5, 7, 9, 10, 13, and
this Article 14, shall survive the expiration or termination
of this Agreement.
14.10 Purchase Orders. The terms of any subsequent pre-printed
purchase order shall not vary, add to or supersede this
Agreement.
14.11 Headings. Article and Section headings are for convenience
only and are not to be used to construe or interpret this
Agreement.
Signature Page Follows
- 23 -
IN WITNESS WHEREOF, the parties have indicated their acceptance of the
terms of this Agreement by the signatures set forth as of the date first written
above. Each individual signing for a corporate entity hereby personally warrants
his or her legal authority to bind that entity.
Aventis Inc. Zix Corporation
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- ------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory Title: Senior Vice President
SCHEDULE A
FORM OF
INDIVIDUAL PROJECT AGREEMENT
INDIVIDUAL PROJECT AGREEMENT
NO. ________
Agreement: Master Services Agreement dated January __, 2004 between
Aventis Inc. and Zix Corporation
Title of Project: "_________________________"
Date: _________________,________
The following terms and conditions apply solely to work performed under this
Individual Project Agreement ("IPA") and do not apply to any other Individual
Project Agreements. The IPA is governed by the terms of the Master Services
Agreement dated January [__], 2004 (the "Agreement") between Aventis Inc.
("Aventis") and Zix Corporation ("Company"), the terms and conditions of which
are incorporated herein by reference. To the extent that there is any conflict
between the terms and conditions of the Agreement and this IPA, this IPA shall
control. All capitalized terms in this IPA shall have the same defined meanings
as set forth in the Agreement. Time is of the essence for Company's performance
of the Services and delivery of the Deliverables hereunder.
1. Project Summary:
[ENTER DETAILED DESCRIPTION OF PROJECT HERE. INCLUDE APPLICABLE TIME
FRAMES/DEADLINES AND OBJECTIVE CRITERIA FOR DETERMINING ACCEPTABILITY.]
2. Deliverables:
[ENTER DETAILED DESCRIPTION OF DELIVERABLES HERE. INCLUDE APPLICABLE
DELIVERY DATES AND OBJECTIVE CRITERIA FOR DETERMINING ACCEPTABILITY.]
3. Budget:
Total [ESTIMATED] Cost of Project: $_______________. Company shall not
exceed this amount (including reimbursable expenses, if any) without Aventis'
express prior written consent. A request by Company for excess fees shall be
accompanied by a written explanation of the cost overruns.
[ENTER BREAKDOWN OF BUDGET HERE. INCLUDE HOURLY OR DAILY (I.E., 8 HOURS
OF WORK) RATE FOR PROJECT PERSONNEL.]
4. Other Provisions:
[ENTER ANY OTHER APPLICABLE PROJECT-SPECIFIC PROVISIONS HERE. IN
PARTICULAR, DESCRIBE ANY VARIATIONS FROM THE AGREEMENT, INCLUDING ANY EQUIPMENT
THAT MAY BE PROVIDED BY AVENTIS AND ANY PROPRIETARY, PRE-EXISTING IP OF
COMPANY.]
Signature Page Follows
IN WITNESS WHEREOF, the parties have indicated their acceptance of the
terms of this Agreement by the signatures set forth below as of the date set
forth above. Each individual signing for a corporate entity hereby personally
warrants his or her legal authority to bind that entity.
Aventis Inc. Zix Corporation
By: __________________________ By: ________________________________
Name: ________________________ Name: ______________________________
Title: _______________________ Title: _____________________________
SCHEDULE B
COMPANY SERVICES OFFERINGS
PATIENT EDUCATION AND CARE PROGRAM
The proposed PATIENT EDUCATION AND CARE PROGRAM (PECP) is an arrangement between
Aventis and ZixCorp, through its wholly-owned subsidiary PocketScript, Inc.,
enabling a physician at the point of prescribing to recruit and/or enroll
electronically a patient (who has provided authorization) into a drug compliance
or adherence program.
The PECP operates as a recruitment vehicle to identify and enroll patients in
existing disease management programs or in new programs either developed and
managed on behalf of Aventis by ZixCorp on Zix websites or by a third-party. The
electronic patient recruitment into the applicable compliance programs is
conducted using our PocketScript(TM) e-prescribing application (a handheld
wireless PDA: Blackberry or Pocket PC, or secure website).
Physicians using the ZixCorp PocketScript application have access to
comprehensive drug information and the ability to electronically write and
transmit prescriptions from the point-of-care directly to any pharmacy. The
physicians are able to view patient drug histories for all past e-prescriptions
to ensure prescriptions are being filled and no therapies are being duplicated.
The PECP has six potential option components which are described below:
- Recruitment
- Enrollment
- Adherence Reporting
- Program Management without Content
- Program Management with Content
- Content Development and Maintenance
RECRUITMENT
Description
Patient program recruitment may be made available to Aventis
through the Zix physician network.. The recruitment process
will be triggered after a physician prescribes an Aventis
program drug prompting the physician to offer each patient the
choice to have program opt-in information directed to him or
her.
- Reporting
- Upon request, ZixCorp can supply a report with the number of
recruitments.
ENROLLMENT
Description
- Under this scenario, the patient receives an email with a link
to opt-in to the PECP either because a) they were Recruited
into the PECP by their physician or b) they accessed the PECP
through another recruitment mechanism and elected to enroll in
the program either through a ZixCorp, 3rd party or Aventis
managed site.
Reporting
- In addition to the Recruitment reporting provided above (as
applicable), Aventis may elect to receive reports on the
number of patients enrolled through the ZixCorp site in the
PECP.
- If Enrollment is managed by a 3rd party and Aventis would like
ZixCorp to report on enrollments, there will be a surcharge,
as defined in an applicable IPA.
ADHERENCE REPORTING
Description
- ZixCorp can provide reports to Aventis on a de-identified
patient, physician, practice, or regional level that will
track Enrollees vs. Non-enrollees and provide agreed upon
metrics to measure the effectiveness and impact of the PECP.
- Adherence Reporting for patients enrolled through a 3rd party
will be subject to the 3rd Party Enrollment Surcharge, as
defined in any applicable IPA.
Reporting
- Prescriptions written
- Prescriptions filled
- Number of refills picked up
- Number of renewal requests
- Number of renewals filled
PROGRAM MANAGEMENT WITHOUT CONTENT
Description
- Patients may access the PECP through a ZixCorp website and
view static general information on the program and click a
link to a 3rd party or Aventis site that is managing that
program
- Zix monitors and maintains this portal and connectivity to the
3rd party site
Reporting
- ZixCorp can provide reports to Aventis on the number of
patients accessing the PECP through the Zix Corp website.
PROGRAM MANAGEMENT WITH CONTENT
Description
- ZixCorp either a) manages the program content and
infrastructure, publishing it on Zix's site or b) provides a
wrapper to another site with Zix's navigational subsystem to
maintain a consistent look and feel
- ZixCorp monitors and maintains the website and access to the
content on it.
- Patients have access to their pertinent medical history
information and data, which can be tightly matched and linked
to personalized content and educational information.
- All patient history and prescription information is integrated
to provide a better experience for the users
Reporting
- ZixCorp may provide reports on which sites, links and content
have been viewed, and, given meaningful volumes, provide
de-indentified reports on prescription fulfillment and
dispense history for patients classified by what content was
viewed
CONTENT DEVELOPMENT AND MAINTENANCE
Description
- At Aventis' option, ZixCorp will work with Aventis to develop
content for the PECP for a fixed upfront fee to be negotiated
on a case-by-case basis, plus an ongoing maintenance fee on a
per Enrollment basis to be determined.
PRICING
Description
- See Agreement provisions for general treatment.
- In particular:
Enrollment
to 3rd
Per Party Program Program
Enrollment Reporting Adherence Management w/o Management w/ Content
Cost Recruitment Enrollment Surcharge Reporting Content Content Maintenance
---- ----------- ---------- --------- --------- ------- ------- -----------
1st Drug * * * * * * TBD
2nd Drug * * * * * * TBD
3rd Drug * * * * * * TBD
4th Drug * * * * * * TBD
5th Drug * * * * * * TBD
6th Drug * * * * * * TBD
----------------
* Indicates confidential text omitted and filed separately with the Securities
and Exchange Commission.
WEB-HOSTING
Description
- Zix has the ability to provide industry-standard web-hosting
services.
