Exhibit 10.28
RECRUITMENT SERVICES AGREEMENT
THIS RECRUITMENT SERVICES AGREEMENT ("Agreement") is entered into as of
the ___ day of July, 1999, by and between ClinTrials Research, Inc., a Delaware
corporation ("CTR") and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("AD"), a Delaware corporation.
AD and CTR are sometimes referred to herein as the "Parties" and individually as
a "Party." Capitalized terms shall have the meanings set forth for such terms in
Article XII hereof or as otherwise defined in this Agreement.
WHEREAS, AD is engaged in the business of operating an Internet site
located at the URL ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "AD Site");
WHEREAS, CTR is engaged in the business of clinical recruitment and
testing of pharmaceutical products and devices;
WHEREAS, AD and Centerwatch, Inc. ("CW") have agreed to gather certain
data concerning clinical trial volunteers through the use of a trials volunteer
questionnaire ("Trials Volunteer Questionnaire") and store such data in a trials
volunteer questionnaire database ("Trials Volunteer Questionnaire Database").
NOW, THEREFORE, in contemplation of the foregoing recitals and in
consideration of the mutual covenants and promises contained herein, the Parties
hereby agree as follows:
Article I
Development of Database; Promotion
1.1 Development of Database. AD shall cause to be developed on or prior to
August 15, 1999, the Trials Volunteer Questionnaire for those Users who
are interested in participating in a clinical trial. The Trials Volunteer
Questionnaire shall include: (i) the User granting permission to AD, its
agents and Affiliates to contact research organizations ("CROs"), site
management organizations ("SMOs") and pharmaceutical companies on the
User's behalf, (ii) a description of the relationship between AD, CW,
CROs, SMOs and pharmaceutical companies and (iii) the User granting
permission to AD, its agents and Affiliates to use the information from
the Trials Volunteer Questionnaire for purposes of marketing and selling
other AD content, products and services.
1.2 Promotion of Clinical Trial Recruitment. AD shall use commercially
reasonable efforts to promote the Recruitment Services (as defined herein)
and to encourage Users to provide information for the Trials Volunteer
Questionnaire Database. During the 24 month period from the date hereof,
AD shall cause to be provided in excess of $10,000,000 in promotional,
marketing and advertising services for the sale of Recruitment Services
and for the attraction of Users to provide information for the Trials
Volunteer Questionnaire Database. Such promotion and advertising may
include television, radio, Internet and print advertising and may be part
of other AD promotions.
Article II
Use of Recruitment Services by CTR
2.1 Recruitment Services. AD shall provide Internet clinical trial recruitment
services to CTR ("Recruitment Services"), consisting of contact
information of Qualified Applicants (as defined herein) from the Trials
Volunteer Questionnaire Database and, to the extent that the Trials
Volunteer Questionnaire Database does not contain such contact
information, the gathering of such contact information through the use of
the AD Site and other relationships that AD has with third Persons.
2.2 Pricing. CTR and AD shall negotiate in good faith the pricing terms for
Recruitment Services for each clinical trial managed or conducted by CTR.
The price for Recruitment Services shall be based on the number of
Qualified Applicants identified to CTR for such trial. The pricing for
each Qualified Applicant shall depend on a number of factors including the
rarity of the screening conditions for the trial, length of time for
recruiting a candidate and other factors agreed to by the Parties.
"Qualified Applicant" means an applicant who (i) meets all selection
criteria specified by CTR to AD on the date that AD was retained to
provide Recruitment Services for a given clinical trial and (ii) appears
for an initial screening at a time and location as shall be reasonably
requested of such applicant by CTR.
2.3 Use of Service. Subject to this Section 2.3 and Section 2.4, in the event
that CTR or any of its clients elects to recruit clinical trial candidates
through the Internet, CTR shall use exclusively the Recruitment Services
for the benefit of its clients; provided, however, that CTR may obtain
services similar to the Recruitment Services from any other Person with
respect to a clinical trial if the CTR client for such trial requires CTR
in writing to use such other services, and CTR promptly discloses such
written requirement to AD. CTR shall use commercially reasonable efforts
to promote the Recruitment Services to CTR clients. AD recognizes and
acknowledges that CTR cannot obligate or bind a CTR client to use the
Recruitment Services.
2.4 Use of Other Providers. In the event that AD is unable to fulfill its
volunteer quota for such trial (as agreed to by the Parties prior to the
commencement of the recruitment for such trial) within 45 days from the
date that AD was retained to provide Recruitment Services for such trial,
CTR shall have the right to use Persons other than AD to recruit clinical
trial candidates through the Internet for the benefit of CTR with respect
to a particular clinical trial.
2.5 Marketing Assistance. AD shall assist CTR in obtaining contracts with CTR
clients by presenting to such clients, at CTR's reasonable request,
information concerning the Recruitment Services.
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Article III
CTR Acknowledgements
3.1 AD Site. CTR agrees and acknowledges that:
(i) AD does not investigate, monitor, operate or control the material,
information, products, services, opinions or recommendations on the
AD Site, nor does it make any warranties, representations or
endorsements in connection with any material, information, products,
services, opinions or recommendation contained or available in
conferences, special programs, disease communities on the AD Site
and other programs or websites linked to the AD Site;
(ii) WITH RESPECT TO THE AD SITE, AD DOES NOT WARRANT, REPRESENT OR
GUARANTEE THAT IT WILL RESPOND TO ALL USER INQUIRIES, COMMENTS OR
REQUESTS FOR INFORMATION AND DOES NOT MAKE ANY REPRESENTATION OR
WARRANTY CONCERNING USEFULNESS OR FITNESS FOR A PARTICULAR PURPOSE
OF THE INFORMATION SUPPLIED TO USERS, OR THAT ITS FILES ARE FREE OF
VIRUSES, WORMS, TROJAN HORSES OR OTHER CODES THAT INCLUDE OR.
MANIFEST CONTAMINATING OR DESTRUCTIVE CHARACTERISTICS; and
(iii) WITH RESPECT TO THE AD SITE, AD MAKES NO REPRESENTATIONS OR
WARRANTIES CONCERNING THE OPERATION OF THE AD SITE WILL BE
UNINTERRUPTED OR ERROR FREE, AND AD SHALL NOT BE LIABLE FOR THE
CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. AD SHALL NOT BE
RESPONSIBLE FOR INTERRUPTIONS OR ERRORS IN THE OPERATION OF THE
INTERNET, THE AD SITE OR ANY OTHER ENTITY WHICH IMPACTS THE
OPERATION OF THE AD SITE OR ANY OTHER SITE ON THE INTERNET.
Article IV
Representations, Warranties and Covenants
4.1 CTR Representations and Warranties. CTR represents and warrants to AD as
of the date hereof that the execution and delivery of this Agreement does
not conflict with or result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination or
cancellation of, or accelerate the performance required by or maturity of,
or result in the creation of any security interest, lien, charge or
encumbrance on any of CTR's assets pursuant to any of the terms,
conditions or provisions of, any note, bond, mortgage, indenture, permit,
license, franchise, lease, contract, or other instrument or obligation to
which CTR is a party or by which any of its assets are bound or affected.
4.2 CTR Covenants. CTR covenants to AD that on and after the date of this
Agreement, CTR shall materially comply with all applicable laws, rules,
regulations and standards
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promulgated by governmental and non-governmental organizations governing
the advertising, marketing and promotion of clinical trial services and
the conduct of such trials.
4.3 AD Representations and Warranties. AD represents and warrants to CTR as of
the date hereof that the execution and delivery of this Agreement does not
conflict with or result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination or cancellation of, or
accelerate the performance required by or maturity of, or result in the
creation of any security interest, lien, charge or encumbrance on any of
AD's assets pursuant to any of the terms, conditions or provisions of, any
note, bond, mortgage, indenture, permit, license, franchise, lease,
contract, or other instrument or obligation to which AD is a party or by
which any of its assets are bound or affected.
4.4 AD Covenants. AD covenants to CTR that on and after the date of this
Agreement, AD shall materially comply with all applicable laws, rules,
regulations and standards promulgated by governmental and non-governmental
organizations governing the advertising, marketing and promotion of
clinical trial services.
4.5 Mutual Representations. Each Party represents to the other Party that:
(i) it has the full power and authority to enter into, execute, deliver,
and perform this Agreement;
(ii) the execution, delivery and performance of this Agreement and the
consummation of all transactions contemplated herein, have been duly
authorized by all necessary corporate and other actions of such
Party; and
(iii) this Agreement, when executed and delivered by such Party, shall be
a valid and binding obligation of such Party, enforceable against it
in accordance with the terms hereof, subject to bankruptcy,
insolvency and other similar laws affecting the rights of creditors
generally and except that the remedies of specific performance,
injunction and other forms of mandatory equitable relief may not be
available.
Article V
Relationship of Parties
5.1 No Joint Venture. Nothing contained in this Agreement shall be construed
as providing for a joint venture or partnership or for the sharing of
profits or losses arising out of the efforts of either or both of the
Parties, except as otherwise specifically provided for herein.
5.2 Independent Contractors. The Parties are and shall conduct themselves as
independent contractors in the performance of this Agreement. Each Party
shall have the right to determine the manner in which such Party conducts
its business operations or provides
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any services or materials to the other Party pursuant to this Agreement.
Neither Party shall have any right or authority to bind or commit the
other Party to any agreement, undertaking or obligation without the prior
written consent of the other Party.
5.3 Confidential Information.
(i) As used in this Agreement, the term "Confidential Information" shall
mean any information of a proprietary, technical or scientific
nature disclosed by one Party to the other Party unless specifically
designated not to be confidential, and shall include the identities
of suppliers, customers and strategic partners of either Party and
the terms of any agreements, contracts, understandings or
relationships of either Party.
(ii) Each Party shall treat as confidential all Confidential Information
of the other Party, shall not use such Confidential Information
except for the purposes of this Agreement or as otherwise authorized
by the other Party in writing, shall implement reasonable procedures
to prohibit the disclosure, duplication, misuse, or removal of the
other Party's Confidential Information, and shall not disclose such
Confidential Information to any third party except (a) as may be
necessary and required in connection with the rights and obligations
of such Party under this Agreement and subject to confidentiality
obligations at least as protective as those set forth in this
Agreement or (b) as required by law or legal process. Without
limiting the foregoing, each of the Parties shall use at least the
same procedures and degree of care which it uses to prevent the
disclosure of its own Confidential Information of like importance to
prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement, but in no event less than
reasonable care.
(iii) The foregoing restrictions as to Confidential Information shall not
apply to information that;
(1) is known to the receiving Party at the time of the
communication to the receiving Party;
(2) has become publicly known through no wrongful act of the
receiving Party;
(3) has been rightfully received from a third party authorized to
make such communication without restriction;
(4) has been independently developed by the receiving Party, or
(5) has been approved for release by the written authorization of
the communicating Party.
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Article VI
Indemnification and Limitation on Liability
6.1 Indemnities.
(i) Each Party agrees to indemnify and hold the other Party harmless
from, and to reimburse such other Party for, any loss, cost,
expense, damage, liability or claim (including, without limitation,
any attorneys' fees and costs of investigation and defense) arising
out of, based upon or resulting from (a) the inaccuracy of any
representation or warranty of the indemnifying Party which is
contained in this Agreement, or (b) the breach of or failure to
perform any warranty or covenant made by the indemnifying Party
which is contained in this Agreement.
(ii) CTR agrees to indemnify and hold AD harmless from, and to reimburse
AD for, any loss, cost, expense, damage, liability or claim
(including, without limitation, any attorneys' fees and costs of
investigation and defense) arising out of, based upon or resulting
from any claim by a User relating to a clinical trial for which
Recruitment Services are provided to CTR hereunder.
6.2 Limitation on Damages. In no event, whether through arbitration or
judicial proceeding, shall any Party be liable to the other Party for
special, incidental, indirect or consequential damages of any kind or
nature, on claims made directly by the other Party (without limitation of
third party claims and claims of contribution) even if advised of the
possibility of such damages in advance. Notwithstanding the preceding
sentence, in the event of a third party claim which gives rise to a right
of indemnification pursuant to Section 6.1, a Party shall be obligated to
fully indemnify the other Party pursuant to the terms and conditions of
Section 6.1.
Article VII
Term and Termination
7.1 Term. The term of this Agreement shall be for 24 months from the date
hereof. Either Party shall have the right to terminate this Agreement
within 45 days prior written notice on or after nine months from the date
hereof.
7.2 Survival of Certain Terms. The provisions contained in Articles III, IV,
V, VI, IX and X shall survive termination, expiration, or cancellation of
this Agreement.
7.3 Termination. Upon the occurrence of any one of the following events,
either Party may elect to terminate this Agreement by notice to the other
Parties, such termination to take effect on the date of the notice unless
otherwise advised by the Party giving the notice:
(i) If the other Party fails to comply with any material provision of
this Agreement, and such failure is not cured or discharged within
30 days written notice thereof.
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(ii) Upon the insolvency or bankruptcy of, or the filing of a petition
for reorganization or liquidation under applicable bankruptcy or
insolvency laws by or against, or an assignment for the benefit of
creditors of, or the appointment of administrator, liquidator,
trustee or receiver of, or any similar protective proceeding or act
or event of bankruptcy with respect to one of the other Parties.
(iii) Upon the breach by the other Party of any representation, warranty
or covenant contained herein.
Article VIII
Notices
Any notice, demand, request, statement, or other writing required or permitted
by this Agreement shall be deemed to have been sufficiently provided when
personally delivered, sent by telecopy transmission, or dispatched by air
courier, addressed as follows:
To AD: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to;
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To CTR: ClinTrials Research Inc.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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Article IX
Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, United States of America, regardless of its place of
negotiation, execution, or performance and regardless of any principles of
conflict of laws or choice of law which would require the application of the
laws of another jurisdiction
Article X
Dispute Resolution
10.1 Forum. The Parties agree, expressly renouncing any other forum for the
resolution of disputes, that except as provided in Section 10.2, any
disputes arising out of; relating to, or arising in connection with this
Agreement shall be finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
except as modified by this Section. The arbitration panel shall consist of
three arbitrators, one to be appointed by AD, one to be appointed by CTR
and the third to be selected by the two arbitrators so appointed. The
arbitration will be held in the State of Delaware; and it shall be held
as promptly as possible at such time as the arbitration tribunal may
determine. The arbitration will be held in the English language. The
arbitrators shall state the reasons upon which the award is based.
Judgment upon the arbitration award may be entered in any court of
competent jurisdiction (including without limitation the courts of the
United States and the respective political subdivisions thereof), or
application may be made to any such court for a judicial acceptance of the
award and an order of enforcement, as the case may be. If either Party
employs an attorney or commences legal or arbitral proceedings to enforce
the provisions of this Agreement, the prevailing Party shall be entitled
(unless the relevant tribunal decides otherwise) to recover from the
other, reasonable costs incurred in connection with such enforcement,
including but not limited to, attorneys' fees and costs of investigation
and litigation/arbitration. Except as otherwise specifically provided in
this Article, no Party shall institute any action or proceeding against
the other Party in any court with respect to any dispute which is or could
be the subject of a claim or proceeding pursuant to this Article.
10.2 Injunctive Relief. The Parties acknowledge that breaches of this Agreement
may result in material irreparable injury for which there is no adequate
remedy at law, that it will not be possible to measure damages for such
breaches, and that in the event of such a breach or threat thereof the
each Party shall be entitled (notwithstanding the provisions of Section
10.1) to seek and obtain a temporary restraining order, a preliminary
injunction, a permanent injunction or other equitable relief restraining
such Party from engaging in activities prohibited by this Agreement. Each
Party further acknowledges that in the event of such a breach or threat
thereof the other Party shall be entitled to obtain such other or further
relief as may be required to specifically enforce any of the covenants of
this Agreement.
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Article XI
Miscellaneous
11.1 Successors. Except as otherwise provided in this Agreement, every
covenant, term, and provision of this Agreement shall be binding upon and
inure to the benefit of the Parties and their respective legal
representatives, and successors, permitted transferees, and permitted
assignees.
11.2 Third Party Beneficiaries. This Agreement is for the sole benefit of the
Parties and their permitted assignees and nothing herein expressed or
implied shall give or be construed to give to any Person, other than the
Parties and such assignees, any legal or equitable rights hereunder,
11.3 Assurances. Each Party agrees to perform all further acts and to execute,
acknowledge, and deliver any documents which may be reasonably necessary,
appropriate, or desirable to carry out the provisions of this Agreement.
11.4 Counterparts. This Agreement may be executed in several counterparts, each
of which shall be an original, and such counterparts shall together
constitute but one and the same instrument.
11.5 Assignment. No Party shall assign or delegate this Agreement or any of its
rights or obligations hereunder, other than to an Affiliate thereof,
without the prior written consent of the other Party; provided, however,
that the assigning Party shall remain liable for the performance of its
duties hereunder.
11.6 Unenforceable Terms. If any term, provision, covenant, or condition of
this Agreement is held invalid or unenforceable for any reason, the
remainder of the provisions shall continue in full force and effect as if
this Agreement had been executed with the invalid portion thereof
eliminated. Furthermore, upon the request of either Party, the Parties
shall add, in lieu of such invalid or unenforceable provisions, provisions
as similar in terms to such invalid or unenforceable provisions as may be
possible and legal, valid and enforceable.
11.7 Interpretation. Where the context requires, words in the singular shall be
construed as including the plural and words in the plural shall be
construed as including the singular.
11.8 Headings. Headings are intended only for reference purposes and shall not
be used to construe or limit any provision of this Agreements.
11.9 Entire Agreement. This Agreement constitutes the entire understanding of
and agreement between the Parties and supersedes all prior
representations, understandings, and agreements between the Parties and
their Affiliates with respect to the subject matter hereof.
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11.10 Amendments. This Agreement shall be subject at any time to amendment upon
the agreement of the Parties. Such amendments shall be in writing, shall
identify the provisions of this Agreement that are to be amended, and
shall be signed by the Parties.
11.11 Press Release. The Parties shall cooperate in preparing a press release
concerning the transactions contemplated herein, wherein CTR will be
described as exclusively using AD's Recruitment Services. The Parties
shall make all reasonable efforts to finalize such press release within
three (3) days of the date hereof.
Article XII
Definitions
12.1 Definitions. In this Agreement, the following terms shall have the
meanings set forth below:
(i) "Affiliate" means, with respect to any specified Person, any other
Person (a) which owns (directly or indirectly) individually or as
part of a group (as this term is defined under the Securities
Exchange Act of 1934) greater than 50% of such specified Person or
(b) of which greater than 50% of' the voting stock or other capital
interest is owned by (directly or indirectly), individually or as
part of a group (as this term is defined under the Securities
Exchange Act of 1934) by such specified Person.
(ii) "Person" means an individual, partnership, company, corporation or
other legal entity, as the context requires.
(iv) "User" shall mean any Person that views the AD Site.
SIGNATURES FOLLOW ON NEXT PAGE
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly-authorized representatives as of the date first above written.
ClinTrials Research, Inc.: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PhD Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
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Title: Vice President, Product Development Title: Chief Executive Officer
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