EXHIBIT 10.22
[LOGO]
SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (the "Agreement") is between
SIEBEL SYSTEMS, INC., with its principal place of business at 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000 ("Siebel"), and IMS Health Strategic
Technologies, Inc. ("Customer"), with its principal place of business at 000
Xxxxx Xxxxx Xxxx, Xxxxxxxx, XX 00000.
The terms of this Agreement shall apply to each Program License (as defined in
Section 1.12 below) and to all Services (as defined in Section 1.13 below)
provided by Siebel under this Agreement. Customer and its Affiliates may place
orders under this Agreement by signing Order Form(s) as defined in Section 1.8
below. The terms and conditions set forth in this Agreement and in any Order
Form shall control in the event that there are different or additional terms set
forth in any other purchase order submitted by Customer or acceptance form or
invoice issued by Siebel. The terms and conditions of any Order Form shall
incorporate the terms and conditions of this Agreement and shall control over
any conflicting terms and conditions contained in this Agreement.
1. DEFINITIONS
1.1 "AFFILIATE(S)" shall mean (1) all business units and divisions of Customer
or its parents and (2) any entity controlled by, controlling, or under common
control with Customer. Such entity shall be deemed to be an "Affiliate" only so
long as such control exists. Upon request, Customer agrees to confirm the
Affiliate status of a particular entity.
1.2 "ANCILLARY PROGRAM(S)" shall mean the third party software delivered with
the Programs as specified in one or more Order Forms or the Documentation.
1.3 "COMMENCEMENT DATE" of each Program License shall mean the date on which an
Ordered Program is first delivered to Customer.
1.4 "DELIVERABLE(S)" shall mean any materials provided to Customer by Siebel in
the course of performing Technical Services as set forth in EXHIBIT D or
Professional Services as set forth in the appropriate Addendum.
1.5 "DOCUMENTATION" shall mean Siebel's then current on-line help, guides, and
manuals published by Siebel and made generally available by Siebel for the
Ordered Programs. Documentation shall include any updated Documentation that
Siebel provides with Updates.
1.6 "EFFECTIVE DATE" shall mean the effective date set forth at the end of this
Agreement.
1.7 "MAINTENANCE SERVICES" shall mean the services set forth in EXHIBIT B,
attached hereto, as may be modified as permitted in Section 4.1.
1.8 "ORDER FORM(S)" shall mean a document by which Customer orders Program
Licenses and related Services and which is executed by the parties. The initial
Order Form is attached hereto as EXHIBIT A. Subsequent Order Forms shall be
substantially in the form of EXHIBIT A, Each Order Form shall reference the
Effective Date of this Agreement.
1.9 "ORDERED PROGRAM(S)" shall mean the object code of the software as specified
in an Order Form and delivered by Siebel.
1.10 "PRE-PRODUCTION PROGRAM(S)" shall mean a software program which is (i) not
generally licensed for commercial use by Siebel, (ii) not listed as generally
available in Siebel's marketing literature, or (iii) designated by Siebel as an
"Alpha," "Beta," or "Pre-Production" program or release. Pre-Production Programs
shall not include the Ordered Programs. Siebel shall notify Customer in writing
that a particular software program is a Pre-Production Program.
1.11 "PROGRAM(S)" shall mean (i) the Ordered Programs, and (ii) Updates.
Programs shall not include Ancillary Programs.
1.12 "PROGRAM LICENSE(S)" shall mean each license granted to Customer for a User
to use a Program.
1.13 "SERVICES" shall mean all services provided by Siebel under this Agreement,
including Maintenance Services.
1.14 "SUPPORTED PLATFORM" shall mean the hardware and software platforms (e.g.,
database server systems, application server systems, and client systems) that
are supported by Siebel as expressly set forth in the Documentation.
1.15 "TRAINING MATERIALS" shall mean any training materials provided in
connection with any training courses ordered by Customer and delivered by Siebel
as set forth in this Agreement.
1.16 "UPDATE(S)" shall mean (a) subsequent releases of the Programs that (i) add
new features, functionality, and/or improved performance, (ii) operate on new or
other databases, operating systems, or client or server platforms, or (iii) add
new foreign language capabilities; (b) bug or Error fixes, patches, Workarounds,
and maintenance releases; (c) new point releases, including those denoted by a
change to the right of the first decimal point (e.g., v3.0 to 3.1), and (d) new
major version releases, regardless of the version name or number, but including
those denoted by (i) a change to the left of the first decimal point (e.g., v5.0
to 6.0) and/or (ii) the addition of a date designation or a change in an
existing date designation (e.g., v1999 to 2000); provided, however that Updates
shall not include new or separate products which Siebel offers only for an
additional fee to its customers generally, including those customers purchasing
Maintenance Services.
1.17 "USER(S)" shall mean the named or specified (by password or other user
identification) individuals authorized by Customer to use Programs, regardless
of whether the individual is actively using the Programs at any given time.
Customer may replace authorized Users as necessary to reflect personnel changes
provided that the number of individuals authorized to use the Programs does not
exceed the maximum number of authorized Users at any time. The maximum number of
Users that may use or access the Programs is specified in the Order Form. Users
may include the employees of Customer or third parties; PROVIDED that such third
party is limited to use of the Programs (i) only as configured and deployed by
Customer, and (ii) solely in connection with Customer's business operations as
conducted by or through such third party, including but not limited to the
installation, administration or implementation of the Programs for Customer.
Customer agrees that it is responsible for ensuring that any usage by its
employees and any such third parties is in accordance with the terms and
conditions of this Agreement. Notwithstanding the foregoing, Users shall exclude
any individuals employed by, or acting on behalf or under the direction or
control of, a direct competitor of Siebel. Upon Customer's request, Siebel shall
confirm whether any particular entity is a direct competitor of Siebel.
2. PROGRAM LICENSE
2.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, Siebel
grants Customer the following worldwide, nonexclusive, perpetual rights, solely
for its own internal business operations:
A. TO USE. (i) to use the Programs and Ancillary Programs subject to all
of the terms of this Agreement; (ii) to use the Documentation solely for
purposes of supporting Customer's use of the Programs; (iii) to use the
technical Training Materials solely for purposes of supporting Users who
attend Siebel training courses; (iv) to use the Programs that are development
tools (i.e., the Siebel Tools Programs) solely in accordance with the
Documentation to create Customer-specific objects for use with the Programs;
(v) to use the Deliverables solely for purposes of installing or operating
the Programs; and (vi) to install, integrate, and implement the Programs and
Ancillary Programs or to have third parties (e.g., system integrators) do so
for the Customer;
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B. TO COPY. (i) to copy the Programs that operate on server systems as
reasonably necessary to support the maximum number of named Users; (ii) to copy
the Programs and Ancillary Programs that operate on the personal computers of
Users up to the maximum number of named Users, provided that Customer may make
one additional copy of each such Program for use on one personal computer, per
named User, so long as such User operates only one copy of such Program at any
given time; (iii) to make a reasonable number of additional copies of the
Programs and Ancillary Programs solely for archival, emergency back-up, testing,
or disaster recovery purposes; and (iv) to copy the Documentation as reasonably
necessary to support its Users.
2.2 LICENSE RESTRICTIONS. The rights granted in Section 2.1 are subject to the
following restrictions: (i) Customer may use the Ancillary Programs only in
combination with the Programs and solely for purposes of installing and/or
operating the Programs; Customer may not use the Ancillary Programs as
stand-alone applications; (ii) Customer may not reverse engineer, disassemble,
decompile, or otherwise attempt to derive the source code of the Programs or
Ancillary Programs; provided that, if required under applicable law, upon
Customer's request, Siebel shall provide information necessary for Customer to
achieve interoperability between the Programs and other software for a nominal
administrative charge; (iii) Customer may not sublicense or use the Programs or
Ancillary Programs for commercial time-sharing, rental, or service bureau use,
or to train persons other than named Users, unless previously agreed to in
writing by Siebel; (iv) Customer shall not use the programs that are development
tools for general application development purposes; and (v) with regard to any
and all copies of the Programs, Ancillary Programs, and Documentation, Customer
shall only make exact copies of the versions as originally delivered by Siebel,
Customer shall ensure that each copy contains all titles, trademarks, and
copyright and restricted rights notices as in the original, and all such copies
shall be subject to the terms and conditions of this Agreement.
2.3 RETENTION OF RIGHTS. Siebel reserves all rights not expressly granted to
Customer in this Agreement. Without limiting the generality of the foregoing,
Customer acknowledges and agrees that: (i) except as specifically set forth in
this Agreement, Siebel and its suppliers retain all rights, title and interest
in and to the Programs, Ancillary Programs, Documentation, Deliverables, and
Training Materials and Customer acknowledges and agrees that it does not acquire
any rights, express or implied in or to the Programs, Ancillary Programs,
Documentation, Deliverables, and Training Materials except as specifically set
forth in this Agreement; (ii) any configuration or deployment of the Programs
shall not affect or diminish Siebel's rights, title, and interest in and to the
Programs; and (iii) if Customer suggests to Siebel any new features,
functionality, or performance that Customer believes would improve the then
currently offered Programs that Siebel subsequently incorporates into the
Programs, Customer hereby grants Siebel a worldwide, non-exclusive,
royalty-free, perpetual right and license to use and incorporate such
suggestions into the Programs. Customer acknowledges that the Programs
incorporating such new features, functionality, or performance shall be the sole
and exclusive property of Siebel and all such suggestions shall be free from any
confidentiality restrictions that might otherwise be imposed upon Siebel
pursuant to Section 9.1, provided, however that Customer agrees not to make
suggestions to Siebel regarding new features, functionality or performance that
it believes represents Customer's confidential or proprietary information
without, first notifying Siebel that such information: (i) is to be treated as
Customer's confidential or proprietary information, and (ii) may only be
evaluated by Siebel for possible use in connection with the Programs pursuant to
a separate written evaluation and non-disclosure agreement. In the event
Customer uses the Siebel Tools to independently develop customized object
definitions contained in the Siebel object repository ("Customer's Custom Object
Definitions"), Customer's Custom Object Definitions shall be Customer's
exclusive property except to the extent that Customer's Custom Object
Definitions incorporate Siebel's intellectual property rights in the Programs
and provided Customer's Custom Object Definitions are used by Customer solely in
conjunction with the Programs.
2.4 ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be
sold, leased, assigned, or otherwise transferred, in whole or in part, by either
party, and any such attempted assignment shall be void and of no effect without
the advance written consent of the other party, such consent not to be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that such consent shall not
be required if (i) either party assigns this Agreement to an Affiliate or in
connection with a merger, acquisition, or sale of all or substantially all of
its assets, unless the Affiliate or surviving entity is a direct competitor of
the other party, or (ii) Siebel assigns its right to receive and collect
payments hereunder. Customer may (i) transfer any Program License to any other
Affiliate in accordance with this Section 2.4 without requirement of any
relocation, transfer or assignment fee or consent by Siebel; and (ii) transfer
any Programs to any other client computer which is then part of a Supported
Platform without any requirement of any relocation, transfer or assignment fee
or consent by or notice to Siebel. In addition, Customer may transfer all of its
rights and obligations hereunder to an independent subsidiary in connection with
the sale of such subsidiary provided that (i) the Programs continue to be used
only for such subsidiary's internal business operations and (ii) such
independent subsidiary does not include that portion of a business of a third
party that is a direct competitor of Siebel or owned or controlled by a company
that includes that portion of a business of a third party that is a direct
competitor of Siebel, provided that that in the event Customer enters into a
merger or acquisition with a direct competitor of Siebel, Customer may have a
sixty (60) day transition period to return or destroy the Programs provided
that: (i) Customer provides Siebel with adequate assurances that Customer will
not provide access to the Programs to anyone in the direct competitor's
organization, except the direct competitor's Information Technology(IT) (or
other similar department), or its facilities or property management group who
has access to the Programs solely for purposes of the transition, and (i)
Customer provides Siebel with adequate assurances that all of Siebel's trade
secrets, confidential information, and intellectual property rights in the
Programs will be fully observed and protected by such employees in the
transition period. If Siebel does not believe it has received such adequate
assurances, Siebel will immediately notify Customer and identify any
deficiencies in such notification and Customer and Siebel agree to use their
collective best efforts on a first priority basis to resolve such deficiencies
with such competitor and its employees. Siebel agrees to permit such transition
period provided Siebel receives adequate assurances as described in this
paragraph.
Customer agrees that if it fails to use the Programs materially in accordance
with all of the terms and conditions of this section, Siebel shall have the
right to terminate the transition period immediately.
2.5 VERIFICATION. At Siebel's written request, but not more frequently than
annually, Customer shall furnish Siebel with a document signed by Customer's
authorized representative listing (i) the number of Users by country, and (ii)
the locations and types of the systems on which it operates or has installed the
Siebel Programs. Customer is responsible for implementing reasonable means to
monitor its compliance with the terms of this Agreement, provided that Siebel
shall provide all necessary cooperation to assist Customer in collecting User
information, which cooperation shall include but not be limited to the provision
of copies of all Order Forms received by Siebel under this Agreement. Siebel
reserves the right to audit Customer's use of the Programs no more than once
annually at Siebel's expense. Siebel shall schedule any audit at least thirty
(30) days in advance and shall make commercially reasonable efforts to use a
nationally recognized firm for such audit. Any such audit shall be conducted
during regular business hours at Customer's facilities and shall not
unreasonably interfere with Customer's business activities. If such audit
reveals that Customer has underpaid fees to Siebel, Customer shall promptly pay
to Siebel such fees at the prices previously agreed to for such Programs.
3. SOURCE CODE ESCROW
Customer shall have the right to become a beneficiary to the Master Preferred
Escrow Agreement between Siebel and Data Securities International, Inc., a copy
of which will be provided to Customer upon request and which will be
incorporated by reference into this Agreement when Customer executes an
Acceptance Form pursuant to the Master Preferred Escrow Agreement.
4. SERVICES
4.1 MAINTENANCE SERVICES FOR PROGRAMS. Customer agrees to purchase Maintenance
Services for the period specified in the applicable Order Form for each Program
licensed pursuant to this Agreement. Siebel reserves the right to alter its
standard Maintenance Services policy from time to time using reasonable
discretion but in no event shall such alterations result in diminished support
from the level of support set forth in EXHIBIT B, or result in diminished
obligations regarding the provision of Updates. Customer may terminate
Maintenance Services for convenience at any time by notifying Siebel in writing
no later than sixty (60) days in advance of cancellation. Siebel shall provide
Customer with sixty (60) days prior written notice of any material changes to
the level of Maintenance Services set forth in EXHIBIT B. Siebel shall make its
then-standard Maintenance Services available to Customer for as long as Siebel
offers such Maintenance Services to its customers generally.
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4.2 TRAINING SERVICES. Siebel will provide Services (other than Maintenance
Services, which shall be provided as set forth in Section 4.1 above), subject to
availability, in accordance with Siebel's Training Services schedule in effect
at the time such training is ordered. A copy of Siebel's current Training
Services schedule is available upon request.
4.3 USE OF THIRD PARTIES TO PURCHASE SERVICES. Customer may authorize third
parties to purchase Services from Siebel on its behalf provided that all such
Services are provided under the terms of this Agreement.
5. TERM AND TERMINATION
5.1 TERM. Each Program License granted under this Agreement shall commence on
the applicable Commencement Date and shall remain in effect perpetually unless
such Program License or this Agreement is terminated as provided in Section 5.2
or 5.3.
5.2 TERMINATION BY CUSTOMER FOR CONVENIENCE. Customer may terminate any Program
License at any time upon written notice to Siebel.
5.3 TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either party may terminate
this Agreement upon written notice if the other party materially breaches this
Agreement and fails to cure such breach within thirty (30) days following
receipt of written notice specifying the breach in detail; PROVIDED, HOWEVER,
that Customer may terminate Maintenance Services only (a) for convenience, as
provided in Section 4.1, or (b) if Siebel materially breaches the provisions of
EXHIBIT B and fails to cure, or to begin in good faith to cure, the breach
within sixty (60) days following written notice from Customer specifying the
breach in detail. In the event of termination of Maintenance Services, Customer
shall be liable only for payment for Maintenance Services through the
termination date and shall receive a pro-rata refund of any unused prepaid fees.
5.4 EFFECT OF TERMINATION. Termination of this Agreement or any Program License
shall not limit either party from pursuing other remedies available to it,
including injunctive relief, nor shall such termination relieve Customer of its
obligation to pay all fees that have accrued or are otherwise owed by Customer
under any Order Form. The parties' rights and obligations under Sections 2.2,
2.3, 5, 6.1, 7, 8 and 9 shall survive termination of this Agreement.
5.5 HANDLING OF PROGRAMS AND CONFIDENTIAL INFORMATION UPON TERMINATION. If a
Program License granted under this Agreement terminates, Customer shall (i)
cease using the applicable Programs, Documentation, and related Confidential
Information of Siebel, and (ii) certify to Siebel within thirty (30) days after
termination that Customer has destroyed, or has returned to Siebel, the
Programs, Documentation, related Confidential Information of Siebel, and all
copies thereof, whether or not modified or merged into other materials. Upon
termination of this Agreement, each party shall certify to the other party
within thirty (30) days of termination that it has destroyed or returned to the
other party all Confidential Information of the other party, and all copies
thereof, whether or not modified or merged into other materials. Provided that
(i) Customer has used commercially reasonable efforts to destroy or return all
materials as required in this Section 5.6 and (ii) Customer has no intent to
retain such materials, if Customer discovers inadvertently retained materials it
shall not be considered in breach of this Section 5.6 provided that Customer
destroys or returns such materials immediately after discovering them.
6. WARRANTIES AND REMEDIES
6.1 INTELLECTUAL PROPERTY INFRINGEMENT. If a third party makes a claim against
Customer and its directors and officers who are using or have used the Programs
in accordance with this Agreement or who are named in furtherance of their
duties to Customer that the Programs directly infringe patent issued as of the
Effective Date or any copyright, trade secret or trademark ("IP Claim"); Siebel
will defend Customer against the IP Claim and pay all costs, damages and
expenses (including reasonable legal fees) finally awarded against Customer by a
court of competent jurisdiction or agreed to in a written settlement agreement
signed by Siebel arising out of such IP Claim; PROVIDED THAT: (i) Customer
promptly notifies Siebel in writing no later than sixty (60) days after
Customer's receipt of notification of a potential claim; (ii) Siebel may assume
sole control of the defense of such claim and all related settlement
negotiations; and (iii) Customer provides Siebel, at Siebel's request and
expense, with the assistance, information and authority necessary to perform
Siebel's obligations under this Section. Notwithstanding the foregoing, Siebel
shall have no liability for any claim of infringement based on (a) the use of a
superseded or altered release of Programs if the infringement would have been
avoided by the use of a current unaltered release of the Programs, which Siebel
provided to Customer, (b) the modification of a Program, or (c) the use of the
Programs other than in accordance with the Documentation and this Agreement.
If, due to an IP Claim or the threat of an IP Claim, (i) the Programs are held
by a court of competent jurisdiction, or in Siebel's reasonable judgment may be
held to infringe by such a court, or (ii) Customer receives a valid court order
enjoining Customer from using the Programs, or in Siebel's reasonable judgment
Customer may receive such an order, Siebel shall in its reasonable judgment, and
at its expense, (a) replace or modify the Programs to be non-infringing,
provided that the replacement Programs contain substantially similar
functionality; (b) obtain for Customer a license to continue using the Programs;
or (c) if non-infringing Programs or a license to use cannot be obtained, Siebel
may terminate the Program License for the infringing Programs and refund the
license fees paid for those Programs and fees for any Services that directly
relate to such Programs upon return of the Programs by Customer. This Section
6.1 states Siebel's entire liability and Customer's exclusive remedy for any
claim of infringement.
6.2 LIMITED WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY. Siebel warrants for one (1) year from the Commencement
Date that each Program for which Customer has a Program License will perform in
all material respects the functions described in the Documentation when operated
on a Supported Platform.
B. MEDIA WARRANTY. Siebel warrants for ninety (90) days from the Commencement
Date that the tapes, diskettes or other media upon which Siebel delivers
Programs to Customer will be free of defects in materials and workmanship under
normal use.
C. SERVICES WARRANTY. Siebel warrants for ninety (90) days from the
performance of any Services by Siebel pursuant to this Agreement, including
Maintenance Services, that such Services shall be performed in a manner
consistent with generally accepted industry standards.
D. ANTI-VIRUS AND DISABLING CODE WARRANTY. Siebel warrants that to it shall
use reasonable technical means to detect computer viruses. Siebel further
warrants that the Programs as delivered by Siebel do not contain any virus or
computer software code, routines or devices (other than as set forth in the
Documentation) designed to disable, damage, impair, erase, deactivate, or
electronically repossess the Programs or other software or data.
E. YEAR 2000 WARRANTY. Siebel warrants that the Programs, as provided by
Siebel, are capable of processing, recording, storing and presenting data
containing four-digit years after December 31, 1999 in substantially the same
manner and with substantially the same functionality as before January 1, 2000.
Siebel assumes no responsibilities or obligations to cause third-party products
or services to function with the Programs. Siebel will not be in breach of this
warranty for any failure of the Programs to correctly create or process
date-related data if such failure results in any way from, or is any way
attributable to the inability of any software, hardware, or systems of Customer
or any third party (including any underlying database engines, operating
systems, and related drivers) either to correctly create or process date-related
data or to create or process such date-related data in a manner consistent with
the method in which the Programs create or process date-related data Customer
must notify Siebel of any breach of this warranty before January 1, 2001.
F. DOCUMENTATION WARRANTY. Siebel warrants that the Documentation is fit for
the purposes reasonably required by a person with adequate knowledge, training
and experience to operate the Programs.
G. ANCILLARY PROGRAM WARRANTIES. Customer shall have the benefit of any third
party warranties, service agreements and infringement indemnities available to
end users of the Ancillary Programs; provided, however, that Customer's sole
remedy for breach of any such warranty, indemnification, service agreement, or
other
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rights shall be against the third party offering such rights and not against
Siebel. In the event that an Ancillary Program causes the Programs to fail to
perform in all material respects the functions described in the Documentation
when operated on a Supported Platform, Siebel will use commercially reasonable
efforts to provide Customer with a workaround or fix pursuant to EXHIBIT B where
such workaround or fix may include, at Siebel's option, replacing the Ancillary
Program with a replacement Ancillary Program having substantially equivalent
functionality at no additional charge.
H. DISCLAIMERS. Siebel does not warrant that (i) the Programs will meet
Customer's requirements, (ii) the Programs will operate in combinations with
other hardware, software, systems or data not provided by Siebel (except as
expressly specified in writing by Siebel in the Documentation) which Customer
may select for use, (iii) the operation of the Programs will be uninterrupted or
error-free, or (iv) all Program errors will be corrected; provided, however,
that if Customer is current on Maintenance Services fees, Siebel shall be
obligated to provide Maintenance Services. Notwithstanding any provision to the
contrary, Pre-Production Programs, Deliverables, Training Materials, and
Customer's license under Section 2.3 are distributed "AS IS" and Customer
acknowledges that Pre-Production Programs are not suitable for general use.
Siebel shall have no Year 2000-related liabilities for any products or Services
except as expressly stated in this Agreement. THE WARRANTIES ABOVE ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND QUALITY OF SERVICE.
6.3 EXCLUSIVE REMEDIES. Customer must report in writing any breach of the
warranties contained in Sections 6.2A, 6.2B, 6.2C, 6.2D, and 6.2E to Siebel
during the relevant warranty period, and Customer's exclusive remedy and
Siebel's entire liability for any breach of such warranties shall be as set
forth below:
A. PROGRAM WARRANTY. To use its commercially reasonable efforts to correct or
provide a workaround for reproducible Program errors that cause a breach of this
warranty, or if Siebel is unable to make the Program operate as warranted within
a reasonable time considering the severity of the error and its impact on the
Customer, Customer shall be entitled to return the Program to Siebel and recover
the fees paid to Siebel for the Program License and any Services that directly
relate to the Program License.
B. MEDIA WARRANTY. The replacement of the defective media.
C. SERVICES WARRANTY. The reperformance of the Services, or if Siebel is
unable to perform the Services as warranted, Customer shall be entitled to
recover the fees paid to Siebel for the nonconforming services.
D. ANTI-VIRUS WARRANTY. The immediate replacement of all copies of the
affected Programs in the possession of Customer with copies that do not contain
such virus or disabling code. If Siebel breaches the warranty contained in
Section 6.2D, Customer shall additionally have the right to its proven direct
damages, subject to the limitation of liability set forth in Section 7.
E. YEAR 2000 WARRANTY. To use its commercially reasonable efforts to correct
or provide a workaround for reproducible Program errors that cause breach of
this warranty, or if Siebel is unable to make the Program operate as warranted
within a reasonable time considering the severity of the error and its impact on
the Customer, Customer shall be entitled to return the Program to Siebel and
recover the fees paid to Siebel for the Program License and any Services that
directly relate to the Program License. In the event that an Ancillary Program
or other third party product is not Year 2000 compliant, Siebel shall use
commercially reasonable efforts to provide Customer with relevant information
regarding such product or the vendor of such product; provided, however, that
Customer's sole remedy for any failure of any Ancillary Programs or other third
party products to be Year 2000 compliant shall be against the third party vendor
of such products and not against Siebel.
F. DOCUMENTATION WARRANTY. Siebel shall use commercially reasonable efforts
to revise the Documentation to correct deficiencies that cause a breach of this
warranty.
G. ANCILLARY PROGRAM WARRANTIES. For a breach of the warranty contained in
the first sentence of Section 6.2G, Siebel shall, at its option, use
commercially reasonable efforts to (i) obtain for Customer a license to continue
using the Ancillary Programs, or (ii) replace the Ancillary Program with a
replacement Ancillary Program having substantially equivalent functionality at
no additional charge.
6.4 GENERAL INDEMNITY. Each party (an "Indemnitor") shall defend and indemnify
the other party and its employees, officers, directors and agents (the
"Indemnitee") against all damages for bodily injury, death, or damage to real or
tangible personal property proximately caused by the Indemnitor in the course of
performing this Agreement; provided that (i) the Indemnitor receives prompt
written notice of the claim from the Indemnitee under this Section, (ii) the
Indemnitor has the right to control the defense of such claim and any related
settlement negotiations, and (iii) the Indemnitee provides to the Indemnitor, at
the Indemnitor's request and expense, with the assistance, information and
authority necessary to perform the Indemnitor's obligations under this Section.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL SIEBEL, ITS SUPPLIERS, OR CUSTOMER BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, except that in the event
Customer makes unauthorized copies of the Programs, Siebel shall be entitled to
recover the full amount of any license fees that would relate to such copies.
Except for Siebel's liability for IP Claims under Section 6.1, its obligations
under Section 6.4, or for any breach of its obligations under Section 9.1, the
aggregate and cumulative liability of Siebel and its suppliers for direct and
proven damages hereunder shall in no event exceed the amount of fees paid by
Customer under this Agreement, and if such damages relate to particular
Program(s) or services, such liability shall be limited to fees paid for the
relevant Program(s) or services giving rise to the liability. Except for its
obligations under Section 6.4, or any breach of its obligations under Sections
2.1, 2.2, 8 and 9.1, Customer's aggregate and cumulative liability for damages
hereunder shall in no event exceed the amount of fees paid by Customer under
this Agreement.
8. PAYMENT PROVISIONS
8.1 INVOICES. All payments hereunder shall be payable within thirty (30) days of
Customer's receipt of Siebel's invoice unless otherwise set forth on the Order
Form. Siebel will invoice Customer for Services after delivery thereof to
Customer unless otherwise set forth on the Order Form.
8.2 LICENSE FEES. In consideration of the license granted herein, Customer
agrees to make the license fee payments set forth in Order Forms which payments
shall be nonrefundable and irrevocable except as otherwise provided in Sections
6.1, 6.3A, and 6.3E of this Agreement. Concurrently with the execution of this
Agreement, Customer shall place a binding initial order for Programs using the
Order Form attached hereto as EXHIBIT A.
8.3 SERVICES FEES. Fees for Services shall be payable as set forth in the Order
Form.
8.4 OTHER FEES. All other applicable fees, if any, shall be payable thirty (30)
days from the date of Siebel's invoice.
8.5 TAXES. The fees specified in this Agreement do not include taxes, duties or
fees; if Siebel is required to pay (i) sales, use, property, value-added,
withholding or other taxes, (ii) any customs or other duties, or (iii) any
import, warehouse or other fees, associated with the importation or delivery
based on the Program Licenses granted or Services provided in this Agreement or
on Customer's use of Programs or Services, then such taxes, duties or fees shall
be billed to and paid by Customer. If Customer is permitted to declare any such
taxes, Customer shall declare and pay such taxes and Siebel shall not be
required to invoice Customer. This Section shall not apply to taxes based on
Siebel's income or payroll taxes.
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9. GENERAL TERMS
9.1 NONDISCLOSURE. Each party may have access to information that is
confidential to the other party ("Confidential Information"). Siebel's
Confidential Information shall include, but not be limited to, the Programs,
Ancillary Programs. Documentation, formulas, methods, know how, processes,
designs, new products, developmental work, marketing requirements, marketing
plans, customer names, prospective customer names, the terms and pricing under
this Agreement, and all information clearly identified in writing at the time of
disclosure as confidential. Customer's Confidential Information shall include,
but not be limited to, its software programs, formulas, methods, know-how,
processes, designs, new products, developmental work, marketing requirements,
marketing plans, customer names, prospective customer names, and all information
clearly identified in writing at the time of disclosure as confidential.
Confidential Information includes all information received from third parties
that either party is obligated to treat as confidential and oral information
that is identified by either party as confidential.
A party's Confidential Information shall not include information that (i) is or
becomes a part of the public domain through no act or omission of the other
party; (ii) was in the other party's lawful possession prior to the disclosure
and had not been obtained by the other party either directly or indirectly from
the disclosing party; (iii) is lawfully disclosed to the other party by a third
party without restriction on disclosure; or (iv) is independently developed by
the other party without use of or reference to the other party's Confidential
Information. In addition, this Section 9.1 will not be construed to prohibit
disclosure of Confidential Information to the extent that such disclosure is
required to by law or valid order of a court or other governmental authority;
PROVIDED, HOWEVER, that the responding party shall first have given notice to
the other party and shall have made a reasonable effort to obtain a protective
order requiring that the Confidential Information so disclosed be used only for
the purposes for which the order was issued.
The parties agree, unless required by law, not to make each other's Confidential
Information available in any form to any third party (except third parties who
are Users as defined hereunder) or to use each other's Confidential Information
for any purpose other than in the performance of this Agreement. Customer shall
not disclose the results of any performance tests of the Programs to any third
party without Siebel's prior written approval. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not disclosed or
distributed by its employees or agents in breach of this Agreement. The parties
agree to hold each other's Confidential Information in confidence during the
term of this Agreement and for a period of three (3) years thereafter; provided,
however, that with respect to source code, the Siebel Data Model Reference
Manual, the Siebel Data Mart Data Model Reference, and other highly sensitive
confidential information clearly identified as such at the time of disclosure by
either party, the nondisclosure obligations set forth herein shall continue
indefinitely. Each party's additional obligations regarding the Siebel Data
Model Reference Manual and the Siebel Data Mart Data Model Reference are set
forth in the text of the Siebel Data Model Reference Manual and the Siebel Data
Mart Data Model. Each party acknowledges and agrees that, due to the unique
nature of Confidential Information, there can be no adequate remedy at law for
breach of this Section 9.1 and that such breach would cause irreparable harm to
the non-breaching party; therefore, the non-breaching party shall be entitled to
seek immediate injunctive relief, in addition to whatever remedies it might have
at law or under this Agreement.
This Section 9.1 constitutes the entire understanding of the parties and
supersedes all prior or contemporaneous agreements, representations or
negotiations, whether oral or written, with respect to Confidential Information
disclosed in connection with this Agreement, except as otherwise agreed to in
writing by Siebel and Customer.
9.2 GOVERNING LAW. This Agreement and all matters arising out of or relating to
this Agreement, shall be governed by the laws of the State of California,
excluding its conflict of law provisions. The parties agree that the United
Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement.
9.3 NOTICES. All notices required to be sent hereunder shall be in writing and
shall be deemed to have been given upon (i) the date sent by confirmed
facsimile, (ii) on the date it was delivered by courier, or (iii) if by
certified mail return receipt requested, on the date received, to the addresses
set forth above and to the attention of the signatories of this Agreement and
the relevant Order Form, or to such other address or individual as the parties
may specify from time to time by written notice to the other party.
9.4 INJUNCTIVE RELIEF. Each party acknowledges and agrees that in the event of a
material breach of this Agreement, including but not limited to a breach of
Section 2 or Section 9.1 of this Agreement, the non-breaching party shall be
entitled to seek immediate injunctive relief, in addition to whatever remedies
it might have at law or under this Agreement.
9.5 SEVERABILITY. In the event any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this Agreement will remain
in full force.
9.6 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of Siebel's proprietary
rights in the Programs or Documentation, no action, regardless of form, arising
out of this Agreement may be brought by either party more than one year after
the cause of action has accrued.
9.7 FORCE MAJEURE: In the event circumstances beyond a party's reasonable
control prevent a party from performing its obligations under the Agreement, the
performance of such obligation(s) shall be suspended to the extent as is
reasonable under the circumstances; provided, however, that during the
suspension the affected party shall use its commercially reasonable efforts to
resume its performance under the Agreement; and provided, further, however, that
if the affected party's performance is suspended for a period of greater than
sixty (60) days, the unaffected party shall have the option to terminate the
Agreement upon written notice thereof to the other party. Termination hereunder
will not affect Customer's obligation to make payments for Programs and services
furnished prior to such termination.
9.8 SUCCESSORS AND ASSIGNS: All provisions of the Agreement and this Addendum
shall be binding upon, inure to the benefit of and be enforceable by and against
the respective successors and permitted assigns of Siebel and Customer.
9.9 DELIVERY. All materials provided by Siebel hereunder shall be delivered to
Customer on a F.O.B. Siebel's San Mateo or Emeryville facility basis for
destinations within the United States, or on a FCA (Incoterms 1990) Siebel's San
Mateo or Emeryville facility basis for destinations outside the United States;
at which point title to the carrier media and risk of loss or damage to the
materials shall be transferred from Siebel to Customer. If any materials are
lost or damaged while in transit to Customer, Siebel shall send duplicate
materials to Customer at no additional charge. Nothing in this Section shall be
deemed to transfer title to, or provide Customer with any rights in, the
Programs, Deliverables or Documentation, except as specifically provided in this
Agreement.
9.10 EXPORT CONTROLS. Customer agrees to comply fully with all relevant export
laws and regulations of the United States, including but not limited to the U.S.
Export Administration Regulations (collectively, "U.S. Export Controls").
Without limiting the generality of the foregoing, Customer expressly agrees that
it shall not, and shall cause its representatives to agree not to, export,
directly or indirectly, re-export, divert, or transfer the Programs,
Documentation or any direct product thereof to any destination, company or
person restricted or prohibited by U.S. Export Controls.
9.11 RESTRICTED RIGHTS NOTICE.
9.12 RELATIONSHIP BETWEEN THE PARTIES. Siebel is an independent contractor;
nothing in this Agreement shall be construed to create a partnership, joint
venture or agency relationship between the parties.
9.13 ENTIRE AGREEMENT. This Agreement, together with the attached exhibits,
which are incorporated by reference, constitutes the complete agreement between
the parties and supersedes all prior or contemporaneous agreements or
representations, written or oral, concerning the subject matter of this
Agreement and such
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exhibits. This Agreement may not be modified or amended except in writing signed
by a duly authorized representative of each party. No other act, document, usage
or custom shall be deemed to amend or modify this Agreement.
9.14 COUNTERPARTS AND EXCHANGES BY FAX. This Agreement may be executed
simultaneously in two (2) or more counterparts, each of which will be considered
an original, but all of which together will constitute one and the same
instrument. The exchange of a fully executed Agreement (in counterparts or
otherwise) by fax shall be sufficient to bind the parties to the terms and
conditions of this Agreement.
The Effective Date of this Agreement shall be __________________.
EXECUTED BY: IMS HEALTH STRATEGIC TECHNOLOGIES, INC.
Signature: ___________________________________________________________________
Name: ___________________________________________________________________
Title: ___________________________________________________________________
Date: ___________________________________________________________________
EXECUTED BY: SIEBEL SYSTEMS, INC.
Signature: ___________________________________________________________________
Name: ___________________________________________________________________
Title: ___________________________________________________________________
Date: ___________________________________________________________________
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