Exhibit 10.21
AGREEMENT
between
Novartis Pharma XX, Xxxxxxxxxxxx 00, 0000, Xxxxx, Xxxxxxxxxxx
(hereinafter "Novartis")
and
Xxxxxxxxxxx.xxx, Inc. Xxxxxxx Xxxxx, 0xx Xxxxx, 33 Xxxx Street, Xxxxxxxx Bermuda
HM LX (hereinafter "Mediconsult")
1. Subject-Matter of the Agreement
1.1 Mediconsult undertakes to provide Novartis with work and services
regarding the development of Novartis' Internet presence, as described in
more detail in the Scope of Work delivered simultaneously with this
Agreement. The Scope of Work shall include the following Schedules
thereto:
o Branding @ Pharma Project (Schedule 1) (hereinafter "Project");
o Description of Services (Schedule 2);
o Promotional Program (Schedule 3);
o Project Timelines (Schedule 4); and
o Project Team (Schedule 5);
Such services to be performed by Mediconsult and such other related
services as Novartis may reasonably request and approved by Mediconsult
are hereinafter jointly referred to as the "Services". The Services will
include the development and implementation of a global Internet presence
that supports the branding needs of Novartis' four substances and products
Lescol(R), Diovan(R), & Co-Diovan(R), Starlix and E25 (hereinafter
"Products"). Any installation of Novartis' Internet sites requires the
prior written approval of Novartis. The Project will outline in detail the
Services and the agreed upon services/needs for each of the Products. The
branding needs include consistent promotional and scientific messages and
visual identity of Novartis and the Products.
1.2 Novartis shall provide to Mediconsult on an ongoing basis during the term
of this Agreement such information and data as Novartis determines to be
required by Mediconsult for the performance of the Services.
1.3 Mediconsult shall provide the Services in a timely and professional manner
and in accordance wit the terms of this Agreement. Any subcontracting of
Services is subject to prior written approval of the Services.
1.4 Mediconsult shall attend such meetings at Novartis' and its affiliates'
offices in Basel, East Hanover, etc., as reasonably requested by Novartis,
at no additional cost to Novartis.
1.5 Mediconsult shall promptly inform Novartis in writing in the case of
special events, problems, etc. in connection with the Services.
2. Collaborators
2.1 Mediconsult shall be responsible for the appropriate staffing of the
team to perform its tasks under this Agreement and shall bear all the
related costs and expenditures.
2.2 If the performance of the Services should require the recruitment of
any additional collaborators, employees, agents, etc. (collectively,
"Collaborators"), Mediconsult shall be responsible for such recruitment
and shall have all responsibility, financial or otherwise, with respect to
such Collaborators.
2.3 Mediconsult warrants that such Collaborators will comply with the
obligations set forth in this Agreement.
3. Consideration
3.1 In consideration of the Services, Novartis will make the payments,
subject to evaluation by Novartis and satisfactory performance by
Mediconsult, set forth in the Scope of Work. The total amount of such fee
excluding VAT compensates all Services provided by Mediconsult under this
Agreement, such as initial design, development, and deployment, promotion
and maintenance of the Internet presence for each of the Products, etc.
Except as specified in the Scope of Work, Mediconsult will receive no
further payments or reimbursements from Novartis for or in connection with
the Services.
3.2 Mediconsult shall send its invoices to Novartis Pharma AG, Zentraler
Fakturencingang, WSJ-210.1333, Xxxxxxxx, 0000 Xxxxx, Xxxxxxxxxxx, marked
to the attention of Xx. Xxxxxx Xxxxx-Xxxxx or to such other person as may
be designated by Novartis from time to time. The invoices shall contain
the following information: full address of dispatcher, VAT number of
dispatcher [if applicable], addressee (Novartis Pharma AG, Zentraler
Fakturencingang, WSJ-2120.1333, Attention Xx. Xxxxxx Xxxxx-Xxxxx), clear
statement that it is an invoice, job number/SAP order number, date,
detailed items invoiced, VAT (to be
shown separately)[if applicable], total amount invoiced including
currency, credit terms, bank details. Novartis shall make its payments
within 20 (twenty) working days after receipt of a respective invoice.
4. Term and Termination
4.1 This Agreement shall retroactively enter into effect on 16 October
1998 and shall expire on 31 December 1999, unless extended by the parties.
4.2 Novartis shall be entitled to terminate this Agreement at any time by
written notice to Mediconsult if in its reasonable opinion Mediconsult
should have failed to perform the Services in a professional and timely
manner and/or in accordance wit the terms of this Agreement.
4.3 This Agreement may be terminated by either party at any time by
ewritten notice to the other party in either of the following
circumstances: (i) if the other party should be in breach of any of its
obligations hereunder and should fail or be unable to remedy such beach
within 30 (thirty) days of receipt of notice in writing specifying the
breach; (ii) if the other party should go into liquidation otherwise than
for the purpose of amalgamation reconstruction; or should have a receiver
or manage appointed of any of its assets; or should enter into any
composition with its creditors.
4.4 Upon any termination or expiration of this Agreement, all outstanding
rights and obligations between the parties arising from or in connection
with this Agreement shall immediately terminate, except: (i) any
obligation that matured prior to the effective date of the termination or
expiration; (ii) the secrecy obligations set forth in Section 5 and (iii)
any other provision which, by its terms, is understood to survive the
termination or expiration of this Agreement. Termination of this Agreement
shall be without prejudice to any claim or right of action of either party
against the other party for any prior breach of this Agreement.
4.5 In the event of early termination, Mediconsult will execute an orderly
transition of any sites and applications to Novartis' internal Internet
operations. This orderly transition will take place within 45 (forty-five)
days of written notification from Novartis. Within such period of 45
(forty-five) days, all work in progress will be completed and an
appropriate handover of content and applications will occur.
4.6 In addition, a transition of sites and applications developed for
Novartis and the Products may take place in any case, if Novartis deems
that it should like these sites and applications to be managed on a daily
basis for a local server/contractor. In this case, an orderly transition
of sites and applications should follow the same procedure outline in
Section 4.5. This transition would not necessarily affect the Services
provided by Mediconsult. Mediconsult would agree to work with Novartis'
local supplier.
5. Confidentiality
5.1 Mediconsult undertakes to treat all technical, commercial, scientific
and/or other information obtained from Novartis or otherwise acquired in
connection with this Agreement (hereinafter "Information") confidential,
except for any information which Mediconsult is able to demonstrate:
(1) was already in the public domain at the time of receipt from
Novartis;
(2) was in its possession prior to receipt from Novartis, and was
not acquired, directly or indirectly, from Novartis;
(3) becomes part of the public domain through no fault of
Mediconsult;
(4) is lawfully received by Mediconsult from a third party, having
a right to disclose it to Mediconsult;
(5) was developed by Mediconsult, independently from the
Information disclosed.
5.2 Nothing in this Section 5 shall prevent the disclosure of those parts
of the Information which are required to be disclosed by law or court
order; provided, however, that if Mediconsult is so required to disclose
any such Information, it shall provide Novartis prompt written notice of
such requirement so that Novartis may seek a protective order or other
appropriate remedy to prevent or limit such disclosure.
5.3 Mediconsult undertakes that the Information will be used exclusively
for the purposes of this Agreement.
5.4 The provisions of this Section 5 shall survive the duration of this
Agreement for a term of 15 (fifteen) years.
5.5 After completion of this Agreement, Mediconsult will return to
Novartis or, at Novartis' option, will destroy any documents (in whatever
form) supplied by Novartis as well as all copies thereof and documents
containing extracts therefrom provided, however, that Mediconsult may
retain one copy for the sole purpose of verifying compliance with
Mediconsult's obligations under this Agreement.
6. Intellectual Property Rights
6.1 Novartis is entitled to use and exploit, free of charge, any
information generated in the course of the Services to be provided
hereunder. Any copyrights, as well as
any rights to patentable or non-patentable inventions which Mediconsult
develops in the course of performing the work contemplated by this
Agreement (such inventions, collectively "Inventions") will, promptly
following Novartis' request, be assigned to Novartis free of charge.
Mediconsult will assist Novartis in the preparation of patent applications
on any such Inventions. Novartis will reimburse Mediconsult for its
out-of-pocket expenses required to be incurred in connection therewith,
which Mediconsult agrees will constitute adequate consideration for such
assignment.
6.2 In creating an Internet presence for the Products, Mediconsult will
bring content and applications to bear both from its existing sources as
well as from development and third party sources. In general, however,
Mediconsult would grant ownership of the developed Internet content,
applications and web site(s) to Novartis based on the following
parameters:
6.3 Content
- General content (e.g., on disease) provided by Mediconsult to
populate the site(s) are non-exclusively owned by Novartis. Novartis
has a fee fully paid non-exclusive right to use this content or
applications without permission from Novartis.
- Product-specific content and applications created by Mediconsult for
the Novartis web site(s) are exclusively owned by Novartis.
Mediconsult does not have the right to use this content or
applications without permission from Novartis.
- Content re-purposed from Novartis for the site(s) are exclusively
owned by Novartis. Mediconsult does not have the right to use this
content or applications without the prior written consent of
Novartis.
6.4 Applications
- Applications provided by Mediconsult to populate the site(s) are
non-exclusively owned by Novartis. Novartis has a free fully paid
non-exclusive right to use these applications, subject to costs of
transfer of technology to Novartis sites, in perpetuity. Mediconsult
continues to own these applications and may use them on their public
web site and for other client sites.
- Applications developed by Mediconsult exclusively for the site(s)
are owned by Novartis.
- Mediconsult owns the source code for all applications as the
developer of ht applications. Novartis is provided with a license to
use the applications in perpetuity. However, Novartis does not have
the tight to resell these applications to third parties.
6.5 Other
- Content and applications owned or developed in conjunction with a
third party (such as a patient association or a medical database
company), will be subject to the terms of any agreement negotiated
at that time. Novartis will be made aware (and be allowed a
reasonable period for comments) of any terms and conditions prior to
arrangements being finalized.
- In case of an early termination of this contract, Novartis owns all
pre-releases of applications developed by Mediconsult (for the
site(s) up to the date of termination.
7. Publications
No publication or other disclosure to any third party may be made by
Mediconsult, either during the term of this Agreement or after its
termination or expiry, without the prior written approval of Novartis.
8. Obligations Contrary to this Agreement
The parties hereby covenant and represent that each of them has full right
and authority to enter into this Agreement and to accept all the
obligations thereunder, that they have no obligations with any third party
which might be in conflict with their obligations under this Agreement,
and that they will during the term of this Agreement not enter into such
obligations without the prior written consent of the other party.
9. Assignment
This Agreement shall not be assignable without the prior written consent
of the other party, except that Novartis shall be entitled to assign this
Agreement or any rights and obligations thereof to any of its affiliates
or to a company taking over all or substantially all of its pharmaceutical
business.
10. Entire Agreement
This Agreement sets forth the entire understanding between the parties
with respect to the transactions and arrangements contemplated hereby and
supersedes all prior oral or written arrangements. No amendments or
modification to this Agreement shall be valid or binding upon the parties
unless made in writing and
signed by the representatives of such parties. All enclosures to this
Agreement shall form an integral part thereto.
11. Notices
Any notices which either Party may be required or shall desire to give
under this Agreement shall be deemed to be duly given when in writing and
delivered personally, mailed by registered mail, courier service or sent
by telex (provided that such telex shall be confirmed by registered mail
or courier service) to the Party to whom notice is to be given, at the
address first given above or such other address or addresses of which such
Party shall have given written notice not less than 7 (seven) days before
the notice is dispatches.
12. Jurisdiction
This Agreement will be governed by, and construed in accordance with, the
substantive laws of Switzerland, except as they relate to the conflict of
laws. Any dispute will be resolved by the ordinary courts of Basel-City,
Switzerland, without restricting any right of appeal.
Novartis Pharma AG
Signatures:
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Dates:
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Names/Titles: Jan S. C. Xxxxxxx Xxxxxx Xxxxx-Xxxxx
Head of Strategic Marketing Pharma Communications
Xxxxxxxxxxx.xxx, Inc.
Signatures:
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Dates: _
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Names/Titles: