EXHIBIT 10.9
SHARED TRANSACTION SERVICES AGREEMENT
between
SYNAVANT, INC.
and
IMS HEALTH INCORPORATED
Dated as of _____________, 2000
SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"), dated as of
_____________ (the "Agreement Date"), by and between IMS Health Incorporated, a
Delaware corporation ("Service Provider") and Synavant Inc., a Delaware
corporation ("Recipient").
W I T N E S S E T H :
WHEREAS,
1. Service Provider and Recipient are being separated into two separate
and independent businesses by means of a spin-off (the "Distribution"), pursuant
to the Distribution Agreement, dated as of ____________ (the "Distribution
Agreement"), between the Service Provider and Recipient;
2. The target date of the Distribution is____________, and the actual
date that the Distribution is effected shall be called the "Distribution Date"
herein;
3. Prior to the Distribution Date, Service Provider has provided and
various of Recipients predecessors and subsidiaries have purchased the services,
pursuant to various written and oral agreements, the Shared Transaction Services
described in this Agreement;
4. In order to facilitate the orderly continuation of Recipient's
business for a transitional period after the Distribution Date, Service Provider
has agreed to provide to Recipient, and Recipient has agreed to purchase on
behalf of itself and certain of it's U.S. and Canadian subsidiaries, the Shared
Transaction Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements of Service Provider
and Recipient set forth below, Service Provider and Recipient agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.01. DEFINITIONS. The following defined terms shall have the
meanings specified below:
(1) "Agreement" shall have the meaning set forth in the preamble.
(2) "Agreement Date" shall have the meaning set forth in the preamble.
(3) "Agreement Disputes" shall have the meaning set forth in Section
12.1.
(4) "Alternative Provider" shall mean any alternative external service
provider selected by Recipient to provide services similar to the Services
following the expiration or termination of this Agreement.
(5) "Distribution" shall have the meaning set forth in the Recitals.
(6) "Distribution Agreement" shall have the meaning set forth in the
Recitals.
(7) "Distribution Date" shall have the meaning set forth in the
Recitals.
(8) "Effective Date" shall have the meaning set forth in Article III.
(9) "Fees" shall mean those charges for the Services set forth in
Schedule E.
(10) "IMS HEALTH" shall have the meaning set forth in the preamble.
(11) "Licensed Documentation" shall mean all documentation that is used
in connection with the operation of the Licensed Software.
(12) "Licensed Software" shall mean the software described in Schedule
D.
(13) "Parties" shall mean Service Provider and Recipient, collectively.
(14) "Party" shall mean either of Service Provider or Recipient, as the
case may be.
(15) "Recipient" shall have the meaning set forth in the preamble.
(16) "Recipient Data" shall mean all data or information supplied by
Recipient to Service Provider for processing or transmission in connection with
the Services.
(17) "Rules" shall have the meaning set forth in Section 12.2.
(18) "Service Provider" shall have the meaning set forth in the
preamble.
(19) "Service Provider Service Location" shall mean any location from
which Service Provider provides or performs the Services. The Service Provider
Service Locations as of the Agreement Date are located at Allentown, PA.
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(20) "Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider used in
connection with providing the Services or (b) licensed or leased by Service
Provider from a third party which is used in connection with providing the
Services. The Service Provider Software includes the software set forth in
Schedule F.
(21) "Service" shall mean the Shared Transaction Services.
(22) "Shared Transaction Services" shall mean the services described in
Schedule B.
Section 1.02. REFERENCES. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in and deemed
part of this Agreement and all references to this Agreement shall
include the Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in this
Agreement shall mean "including, without limitation".
Section 1.03. HEADINGS. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
Section 1.04. INTERPRETATION OF DOCUMENTS. If there is a conflict
between this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
ARTICLE II
TERM OF AGREEMENT
This Agreement shall become effective on the Distribution Date (the
"Effective Date") and shall remain in effect (the "Term") thereafter unless
terminated by either party upon not less than three (3) months' prior written
notice; provided, however, that upon termination of the Agreement, Recipient
shall pay to Service Provider a lump sum amount equal to the balance that would
have been paid with respect to the charges incurred by Service Provider in
connection with its obligations under Sections 5.01 and 7.03 herein as if this
Agreement has not been terminated. In no event shall the Term extend beyond the
second anniversary of the Effective Date.
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ARTICLE III
SERVICES
Section 3.01. SERVICES. Service Provider shall provide to Recipient,
and Recipient shall purchase from Service Provider, the Shared Transaction
Services at the levels of service set forth in Schedule B, provided however,
Recipient's annual purchases in all events will not be higher than 110%, nor be
less than ninety percent (90%) of, the service level volumetrics set forth in
the 1999 service assessment. Services provided by the Service Provider which are
not specifically covered in this agreement will be rendered at the market rates
charged by PricewaterhouseCoopers for the equivalent level of expertise and
service.
Section 3.02. SENSITIVE SERVICES. Service Provider shall make all
scheduled tax payments accurately and in a timely manner. Service Provider shall
also accurately disburse funds on behalf of Recipient to vendors and employees
in accordance with the appropriate vendor terms and employee payrolls provided
by Recipient. Service Provider shall repay Recipient any erroneous payment,
interest or penalty resulting from an inaccurate or late payment under this
section attributable solely to it but its cumulative liability under this
section in any service year shall not exceed $10,000. Service Provider shall be
subrogated to Recipient's rights to the extent of any repayment and Recipient
shall cooperate with Service Provider in seeking reimbursement from any tax
authority, vendor or employee who shall have received an inaccurate or
misdirected disbursement
Section 3.03. PRIORITY. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
Section 3.04. REPORTS. Service Provider shall provide Recipient with
the reports set forth in Schedule C according to the schedule set forth in
Schedule C. All completion dates for processing to take place in 2001 shall be
agreed and established in the same manner as provided under this Agreement for
processing which will take place in 2000.
ARTICLE IV
RECIPIENT OBLIGATIONS
Section 4.01. GENERALLY. Recipient shall:
(1) comply with any reasonable instructions provided by Service
Provider to adequately provide the Services;
(2) comply with all applicable standards and procedures applicable to
the Service Provider Service Location;
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(3) promptly report any operational or system problem to Service
Provider;
(4) provide the working environment, including space, furniture,
electricity, telephones and other infrastructure requirements for Service
Provider's employees located at Recipient's premises, if any.
Section 4.02. ASSOCIATED EQUIPMENT. Except to the extent otherwise
provided in any Schedule, Recipient shall maintain and be responsible for all
costs (including personnel, maintenance and repair) associated with
communications equipment (including terminals, communications hardware, modems
and telephone lines) that Recipient owns or operates and that are not located at
the Service Provider Service Location necessary to provide the Services or to
transmit the Recipient Data for processing at the Service Provider Service
Location.
Section 4.03. SECURITY. Service Provider shall be responsible for
authorizing Recipient's security access to Recipient's Data. Recipient's Chief
Financial Officer or his designee shall specify its employees with security
access. Recipient shall ensure that user accounts shall only be used by the
person for whom such account was created or other authorized personnel.
Recipient shall promptly inform Service Provider of any individual who is no
longer authorized to use the Services. Recipient acknowledges all services will
be rendered by the Service Provider and agrees it shall not contact the Service
Provider's Data Center other than for in emergency situations.
Section 4.04. BUSINESS PLANNING. During the term of this Agreement,
Recipient shall, within a reasonable period of time after such plans are
available, provide Service Provider with a detailed plan identifying any changes
in Recipient's business that may affect the Services or result in additional
capacity being required in order for Service Provider to provide the Services to
Recipient. Recipient's business plan provided to Service Provider pursuant to
this Section 4.4 shall be deemed confidential information of Recipient.
ARTICLE V
PROPRIETARY RIGHTS
Section 5.01. SERVICE PROVIDER SOFTWARE. All Service Provider Software
is, or shall be, and shall remain, the exclusive property of Service Provider or
its third party licensor and Recipient shall have no rights or interests to the
Service Provider Software. Service Provider shall obtain any consents or
approvals necessary in connection with Service Provider's use of the Service
Provider Software to provide the Services to Recipient. The Recipient will be
required to obtain and pay for any licenses required beyond those that the
service provider specifically takes responsibility for on Schedule D.
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ARTICLE VI
DATA
Section 6.01. FORM OF DATA. All data submitted by Recipient to Service
Provider in connection with the Services shall be in the form substantially
similar to that submitted before the Distribution date, unless otherwise agreed
to in writing by the parties.
Section 6.02. OWNERSHIP OF DATA. The Recipient Data is and shall remain
the property of Recipient or its customers.
Section 6.03. OWNERSHIP OF MEDIA. Unless furnished to Service Provider
by Recipient, all media upon which Recipient Data is stored is and shall remain
the property of Service Provider. Recipient may, upon Service Provider's
consent, (1) provide Service Provider with a replacement for the media upon
which the Recipient Data is stored or (2) purchase such media from Service
Provider at the price specified by Service Provider.
Section 6.04. RESPONSIBILITY FOR DATA. Recipient is responsible from
the Agreement Date for (1) the accuracy and completeness of the data
submitted by Recipient in connection with the Services and (2) any errors in
and with respect to data obtained from Service Provider because of any
inaccurate or incomplete data submitted by Recipient to Service Provider.
Service Provider shall maintain the records and data submitted by Recipient
in such form as to readily allow their return at the termination or
expiration of the Agreement in either electronic or paper formats, as
appropriate.
ARTICLE VII
FEES
Section 7.01. FEES. Recipient shall pay to Service Provider through the
end of the Term the fees set forth in Schedule E in respect of each of the
Shared Transaction Services. Commencing January 1, 2001, the fees for each such
Services shall increase (with no adjustment for volumetrics) by five percent
(5%), except for facilities costs and LAN support costs, the fees for which
shall increase by not more than the percentage increase imposed on Service
Provider by its landlord or LAN support vendor. Services provided by the service
provider which are not specifically covered in this agreement will be rendered
at the market rates charged by PricewaterhouseCoopers for the equivalent level
of expertise and service.
Section 7.02. TIME OF PAYMENT. The Fees shall be paid by Recipient on
the last business day of each fiscal quarter that the Services are provided to
Recipient.
Section 7.03. SUBSTANTIAL CHANGE IN VOLUME. If Recipient's use of a
Shared Service increases above the level set forth in Schedule A, Service
Provider shall determine whether any additional hardware or software is
necessary to allow Service
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Provider to render the Shared Service. If Service Provider and Recipient agree,
under this Section 7.3, that additional hardware or software is required, (1)
Service Provider shall acquire upon Recipient's request, such additional
hardware or software on behalf of Recipient and Recipient shall pay to Service
Provider or to the supplier or third party lessor, as may be applicable, the
purchase or lease fees in respect of such additional hardware or software, (2)
Service Provider shall implement an appropriate increase to the Fees and (3) the
Parties shall establish a mechanism for determining the costs to Service
Provider of maintaining such additional hardware or software beyond the initial
Term and, if any, the extended Term and Recipient shall pay such costs to
Service Provider upon the expiration or termination of this Agreement. Except as
otherwise agreed in writing by the Parties, all rights in and title to any
hardware or software acquired by Service Provider on behalf of Recipient and
paid for by Recipient shall belong to Recipient.
Section 7.04. TAXES. Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge imposed by any government or government agency on Recipient or Service
Provider with respect to the Services or the execution or performance of this
Agreement.
Section 7.05. LATE PAYMENTS. Any fees or payments owing to Service
Provider under this Agreement remaining unpaid 30 days after their due date
shall bear interest at the prime rate plus two (2) percent per month, but not
exceeding the highest lawful rate of interest, calculated from the date such
amount was due until the date payment is received by Service Provider.
ARTICLE VIII
AUDITS
Recipient shall have the right during normal business hours and upon
reasonable advance notice, to review the Data Center processes and procedures as
well as the computer printouts and reports and other records of Service Provider
to the extent such books and records relate to the provision by Service Provider
of the Services. Any such review shall be conducted at Recipient's sole expense.
Service Provider shall perform periodic internal control reviews of the
activities at its service and data centers at its expense. To the extent
permitted by law or accounting rules, Recipient's accountants shall be entitled
to review the work papers resulting from such internal control review.
ARTICLE IX
CONFIDENTIALITY
Neither Party shall use nor permit others to use the confidential
information of the other Party without its prior consent and shall keep, and
cause its consultants and advisors to keep, confidential all information
concerning the other Party in its possession, its custody or under its control,
except to the extent (1) such information has been in the public domain through
no fault of such Party or (2) such information has
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been later lawfully acquired from other sources by such Party or (3) this
Agreement or any other agreement entered into pursuant to this Agreement permits
the use or disclosure of such information, to the extent such information (a)
relates to the period up to the Distribution Date or (b) is obtained in the
course of providing or receiving the Services under this Agreement, and neither
Party shall without the prior consent of the other, otherwise release or
disclose such information to any other person, except such Party's auditors and
attorneys, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
Party has used commercially reasonable efforts to consult with the other Party
prior to such disclosure.
ARTICLE X
INDEMNITY
Section 10.01. Each Party shall indemnify and hold the other Party
harmless in respect of all claims, costs, expenses, damages and liabilities
(including reasonable attorney's fees) arising from the gross negligence or
willful misconduct, fraud, theft and illegal acts of the employees, agents or
other representatives of the indemnifying Party after the Agreement Date.
Section 10.02. Each Party shall also indemnify and hold the other
harmless for the breach of its covenants or other obligations under the
Agreement which constitute gross negligence or willful misconduct. A breach of
the covenant of confidentiality under Article 9, above, shall not be indemnified
if the confidential information disclosed was protected under the same standard
of confidentiality used by the disclosing Party to protect its own confidential
information.
Section 10.03. Recovery under the provisions of sections 10.1 and 10.2, above,
shall be the exclusive remedy of each Party for a breach of this Agreement by
the other and in no event shall either Party have any liability to the other for
any claims, losses, damages, judgments, costs or expenses which the other Party
may suffer or incur as a result of injuries to personnel of such other Party or
loss or theft or damage to any personal property of such other Party at the
Service Provider Service Location, except as provided in 10.1, above.
ARTICLE XI
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
Section 11.01. WARRANTY. Service Provider warrants the Services shall
be substantially of the same type, quality and utilization levels and provided
with substantially the same degree of care and diligence as such services had
been provided to Recipient during the period prior to the Distribution Date.
Section 11.02. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SERVICE PROVIDER MAKES NO REPRESENTATIONS OR
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WARRANTIES IN RESPECT OF THE SERVICES, THE LICENSED SOFTWARE, THE SERVICE
PROVIDER SOFTWARE OR THE LICENSED DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING
THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 11.03. LIMITATION OF LIABILITY. Recipient acknowledges the
Services are provided by Service Provider (1) at the request of Recipient in
order to accommodate the Distribution, (2) with the expectation it is not
assuming any financial or operational risks, including those usually assumed by
a service provider. Accordingly, Recipient agrees Service Provider shall not be
liable for indirect, special, incidental or consequential damages, including
lost profits or savings, whether or not such damages are foreseeable, relating
to the Services or Service Provider's performance under this Agreement.
ARTICLE XII
DISPUTE RESOLUTION
Section 12.01. NEGOTIATION. In the event of a controversy, dispute or
claim arising out of, or in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including any claim based in contract,
tort, statute or constitution (collectively, "Agreement Disputes"), the
controllers, then the chief financial officers and, finally, the chief executive
officers of the Parties shall negotiate in good faith for a reasonable period of
time to settle such Agreement Dispute, provided such reasonable period shall
not, unless otherwise agreed by the Parties in writing, exceed 30 days from the
time the Parties began such negotiations; provided further, that in the event of
any arbitration in accordance with Section 12.2, the Parties shall not assert
the defenses of statute of limitations and laches arising for the period
beginning after the date the Parties began negotiations hereunder, and any
contractual time period or deadline under this Agreement to which such Agreement
Dispute relates shall not be deemed to have passed until such Agreement Dispute
has been resolved.
Section 12.02. ARBITRATION. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and, in any event,
unless otherwise agreed in writing by the Parties, after 60 days have elapsed
from the time the Parties began such negotiations), such Agreement Dispute shall
be determined, at the request of a Party, by arbitration conducted in New York
City, before and in accordance with the then-existing International Arbitration
Rules of the American Arbitration Association (the "Rules"). In any dispute
between the Parties, the number of arbitrators shall be three. Any judgment or
award rendered by the arbitrators shall be final, binding and nonappealable
(except on grounds specified in 9 U.S.C. Section 10(a), as in effect on the
Agreement Date). If the Parties are unable to agree on the arbitrators, the
arbitrators shall be selected in accordance with the Rules; provided that each
arbitrator shall be a U.S.
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national. Any controversy concerning whether an Agreement Dispute is an
Agreement Dispute subject to arbitration, whether arbitration has been waived,
whether an assignee of this Agreement is bound to arbitrate, or as to the
interpretation or enforceability of this Article 12 shall be determined by the
arbitrators. In resolving any dispute, the Parties intend that the arbitrators
apply the substantive laws of the State of New York, without regard to the
choice of law principles thereof. The Parties intend that the provisions to
arbitrate set forth in this Section 12.2 be valid, enforceable and irrevocable.
The Parties agree to comply with any award made in any such arbitration
proceeding that has become final in accordance with the Rules and agree to
enforcement of or entry of judgment upon such award, by any court of competent
jurisdiction, including (1) the Supreme Court of the State of
______________________, or (2) the United States District Court for the District
of __________, in accordance with Section 16.16. The arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including
monetary damages, specific performance and all other forms of legal and
equitable relief; provided, however, the arbitrators shall not be entitled to
award punitive damages. Without limiting the provisions of the Rules, unless
otherwise agreed in writing by the Parties or as permitted by this Agreement,
the Parties shall keep confidential all matters relating to the arbitration or
the award, provided such matters may be disclosed (a) to the extent reasonably
necessary in any proceeding brought to enforce the award or for entry of a
judgment upon the award and (b) to the extent otherwise required by law.
Notwithstanding Article 32 of the Rules, the losing Party in the arbitration
shall be responsible for all of the costs of the arbitration, including legal
fees and other costs specified by such Article 32. Nothing contained in this
Section 12.2 is intended to or shall be construed to prevent either Party, in
accordance with Article 22(3) of the Rules or otherwise, from applying to any
court of competent jurisdiction for interim measures or other provisional relief
in connection with the subject matter of any Agreement Disputes.
Section 12.03. CONTINUITY OF SERVICES AND PERFORMANCE. Unless otherwise
agreed in writing, the Parties shall continue to provide the Services and honor
all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article 12 with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE XIII
CONTINUED PROVISION OF SERVICES
Section 13.01. FORCE MAJEURE. Service Provider shall not be in default
of its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be
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released from any payment obligation to Service Provider in respect of such
Services during the period of such force majeure.
Section 13.02. BUSINESS RECOVERY. Service Provider shall maintain a
business recovery plan for the shared services center and data center. Recipient
shall communicate to Service Provider any subsequent changes in its processes
and systems requiring changes in the business recovery plan. The costs of
effecting any such change will be assumed by Recipient which will receive copies
of the revised business recovery plans upon completion. If a disaster occurs
affecting the Services, Service Provider shall implement the business recovery
plan and Recipient shall be responsible for its proportionate share of any fees
incurred by Service Provider in connection with implementing the business
recovery plan.
Section 13.03. FUTURE CHANGES. If, in the future, the Service Provider
incurs costs on the Recipient's behalf related to future changes in technologies
or systems applications, the Recipient will be responsible for those fees and
the Service Provider will give the Recipient three (3) months' notice of any
such change.
ARTICLE XIV
TERMINATION
Section 14.01. EFFECT OF TERMINATION. Upon the termination of this
Agreement, Recipient shall pay to Service Provider, no later than the effective
date of such termination, the balance of the Fees due. Recipient shall not be
liable to Service Provider for any costs associated with a closure of the
Service Provider's service center should it decide to discontinue operating the
service center as a result of the termination or expiration of this Agreement.
ARTICLE XV
TERMINATION ASSISTANCE SERVICES
Upon the expiration or the effective date of termination of this
Agreement, Service Provider shall have no further obligation to provide the
Services to Recipient except that:
(1) for a period up to (a) 120 days prior to the expiration or the
effective date of termination of this Agreement and (b) 60 days following the
expiration of this Agreement or the effective date of termination of this
Agreement, Service Provider shall use reasonable efforts to cooperate, at
Recipient's expense, with (i) the Alternative Provider or (ii) Recipient, in
connection with the transfer of the Services, the Recipient Data, the Licensed
Software and the Licensed Documentation as provided in Section 5.2, from Service
Provider to the facilities of (x) the Alternative Provider or (y) Recipient, as
requested by Recipient;
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(2) Service Provider will render to Recipient at its incremental cost
such assistance as is reasonably necessary to effect a transition of the
services provided under this agreement to an Alternate Provider at a new
location; and
(3) Service Provider will continue to prepare and forward to Recipient
for up to six months after the termination of services and at Recipient's cost,
tax returns, withholding statements (W-2), earnings statements (1099) and other
payroll filings related to the service period for the fee previously established
under the Agreement for such services.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01. NO WAIVERS. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
Section 16.02. CONSENTS, APPROVALS AND REQUESTS. Unless otherwise
specified in this Agreement, all consents and approvals, acceptances or similar
actions to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable
requests under this Agreement.
Section 16.03. PARTIAL INVALIDITY. In the event any of the provisions
of this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
Section 16.04. NOTICES. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
If to Service Provider: IMS HEALTH Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
If to Recipient: Synavant, Inc.
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Telecopy No.: (___) ___________
Attention: Chief Legal Officer
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
Section 16.05. RELATIONSHIP. The performance by Service Provider of its duties
and obligations under this Agreement shall be that of an independent contractor
and nothing herein contained shall create or imply an agency relationship
between the Parties, nor shall this Agreement be deemed to constitute a joint
venture or partnership between the Parties.
Section 16.06. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF _______________________ APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN _________________________.
Section 16.07. COVENANT OF FURTHER ASSURANCES. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver any further legal instruments and perform any acts which are or may
become reasonably necessary to effectuate this Agreement.
Section 16.08. ASSIGNMENT. This Agreement may not be assigned by either
Party, other than to an affiliate of such Party or pursuant to a corporate
reorganization or merger, without the consent of the other Party. Any assignment
in contravention of this Section 16.8 shall be void.
Section 16.09. ENTIRE UNDERSTANDING. This Agreement represents the
entire understanding of the Parties with respect to the Services and supersedes
all previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as herein expressly set forth.
Section 16.10. SUCCESSORS. Subject to the restrictions on assignment
set forth in Section 16.8, this Agreement shall be binding upon and inure to the
benefit of and be enforceable against the Parties hereto and their respective
successors and assigns.
Section 16.11. AMENDMENTS. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
Section 16.12. SURVIVAL. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 12, Article 15, Section 6.2, Section
6.3, Section 7.1,
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Section 7.2, Section 7.5, Section 14.2, Section 16.6, this
Section 16.12, Section 16.14 and Section 16.17 shall survive the expiration or
termination of this Agreement.
Section 16.13. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 16.14. GOOD FAITH AND FAIR DEALING. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
Section 16.15. THIRD PARTY BENEFICIARIES. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
Section 16.16. CONSENT TO JURISDICTION. Without limiting the provisions
of Article 12 hereof, each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of _____________________________(b) the
United States District Court ____________________________ for the purposes of
any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties agrees to commence any
action, suit or proceeding relating hereto either in the United States District
Court _____________________or if such suit, action or other proceeding may not
be brought in such court for jurisdictional reasons, in
the____________________________. Each of the parties further agrees that service
of any process, summons, notice or document by U.S. registered mail to such
party's respective address set forth above shall be effective service of process
for any action, suit or proceeding in _____________with respect to any matters
to which it has submitted to jurisdiction in this Section 16.16. Each of the
parties irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court
__________________________________ or _____________________________and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 16.17. NON-SOLICITATION. Recipient covenants and agrees for a
three year period commencing July 1, 2000 it will not employ or solicit for
employment any Service Provider employee working at the data centers or shared
services center or rendering services to Recipient without Service Provider's
prior written consent.
14
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
IMS HEALTH INCORPORATED
By:______________________________
Name:
Title:
SYNAVANT INC.
By:______________________________
Name:
Title:
15
