SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT ("Agreement") is made and effective
as of May 1, 2004 (the "Effective Date") by and between PHASE FORWARD
INCORPORATED, a Delaware corporation having its principal offices at 000 Xxxxxx
Xxxxxx, Xxxxxxx, XX 00000 ("Phase Forward"), and GLAXOSMITHKLINE SERVICES
UNLIMITED, a member of the GlaxoSmithKline group and a corporation organized and
existing under the laws on England, having an address at 000 Xxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxxx. Phase Forward and GSK collectively are
sometimes hereinafter referred to as the "Parties", and individually as a
"PARTY".
WHEREAS, GSK issued a request for proposal ("RFP") for computer
software conforming to certain functionality and design requirements;
WHEREAS, Phase Forward responded to the RFP with a proposal to provide
Phase Forward's proprietary software to GSK; and
WHEREAS, in reliance on Phase Forward's response to the RFP and
subsequent pilot testing and negotiations with Phase Forward, GSK now desires to
license and use such proprietary software on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings and shall include the plural as well as the
singular:
1.1 "AFFILIATES" with respect to either Party means any
partnership, joint venture, corporation or other form of business entity,
domestic or foreign including, but not limited to, subsidiaries, which directly
or indirectly controls, is controlled by, or is under common control with such
Party. For purposes of this Paragraph 1.1, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and operating policies of the entity in respect of which the
determination is being made, through the ownership of voting securities
contract, voting trust or otherwise.
1.2 "COMPUTER SYSTEM" means any and all computer processing units
and peripheral equipment, including without limitation, any cluster, combination
or network of such processing units and peripheral equipment which are now, or
in the future, owned, leased or operated by or for GSK or a GSK Affiliate and
which are used for GSK's or a GSK Affiliate's internal business purposes or in
support of a joint venture, partnership or strategic business or marketing
alliance in which GSK or a GSK Affiliate is a partner, joint venturer or
participant.
1.3 "CONFIDENTIAL INFORMATION" shall have the meaning specified in
Paragraph 7.1 hereof.
1.4 "CONTRACTORS" means organizations (including, but not limited
to, consulting firms and contract research organizations), the employees of such
organizations, and persons that provide services to GSK on a consulting or
outsourcing basis.
1.5 "DELIVERABLES" means the Software, Documentation and any items
or materials specified as "Deliverables" in a Statement of Work resulting from
Services provided by Phase Forward to GSK hereunder.
1.6 "DELIVERY DATE" for Software means the later of (a) the
Delivery Date specified in the Order Schedule for such Software, or (b) the date
GSK has received such Software (whether delivered by common carrier or an
employee or agent of Phase Forward or electronically through the Internet or
other network).
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1.7 "ENHANCEMENTS" means any change or addition, other than
Maintenance Modifications, to the Software and related Documentation, including
new releases of the Software that improve functions, add new functions or
significantly improve performance by changes in system design or coding,
delivered to GSK pursuant to this Agreement but do not include Software licensed
by Phase Forward as a separate product.
1.8 "ERROR" means any error, problem or defect resulting from (i)
an incorrect functioning of the Software, (ii) an incorrect or incomplete
statement or diagram in Documentation, if such an error, problem or defect
renders the Software inoperable, causes the Software to fail to meet the
applicable Specifications or causes the Documentation to be inaccurate or
incomplete in any material respect, (iii) causes the Software to produce
incorrect results, or causes incorrect functions to occur in the Software when
used in accordance with the applicable Documentation.
1.9 "GSK" means GlaxoSmithKline Services Unlimited and includes
its Affiliates.
1.10 "DOCUMENTATION" means the user manuals, product release notes,
known problem lists and any other documentation (whether printed, electronic or
online) which Phase Forward may from time to time customarily provide to its'
licensees of the Software, and (where the context so admits) any copies thereof.
1.11 "INVESTIGATIONAL PRODUCTS" means medical procedures, drugs or
devices which GSK is testing in clinical trials.
1.12 "INVESTIGATORS" means clinical investigative organizations
(such as, but not limited to, hospitals, medical clinics, and physicians'
organizations and practices), employees of such organizations, and individual
investigators that treat, monitor and provide information about subjects
participating in clinical trials of Investigational Products.
1.13 "MAINTENANCE MODIFICATIONS" means any modifications or
revisions, other than Enhancements, to Software or Documentation that correct
Errors, support new releases of the operating systems with which the Software is
designed to operate, support new input/output devices, or provide other
incidental updates and corrections including, without limitation, bug fixes,
work-arounds and patches, required to maintain conformity of the Software and
Documentation with the applicable Specifications.
1.14 "ORDER SCHEDULE" means a license order schedule substantially
in the form of the sample License Order Schedule attached hereto as Exhibit A.
1.15 "PHASE FORWARD" means Phase Forward Incorporated and its
Affiliates.
1.16 "SERVICES" means the services provided by Phase Forward to GSK
pursuant to a Statement of Work.
1.17 "SOFTWARE" means the object code of the software program(s)
specified in an Order Schedule. "Software" shall also include all Maintenance
Modifications, Enhancements, tutorials, utilities, and other software programs
supplied by Phase Forward from time to time and delivered to GSK pursuant to an
Order Schedule.
1.18 "SPECIFICATIONS" means the functions, performance parameters,
features, and/or design of the Software as published in its then-current
Documentation.
1.19 "STATEMENT OF WORK" or "SOW" shall mean a document
substantially in the form attached hereto as Exhibit C setting forth, among
other things, the specific Services and Deliverables to be provided by Phase and
the fees to be paid by GSK in respect thereof.
1.20 "SUPPORT" refers to the support services specified in Schedule
2 attached hereto.
1.21 "TRIALS" means clinical research studies of Investigational
Products.
1.22 "OTHER TERMS" Other terms used in this Agreement are defined
where they are used and have meanings there indicated. Those terms, acronyms and
phrases used in the information technology ("IT") services industry or other
pertinent business context shall be interpreted in accordance with their
generally understood meaning in such industry or
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business context.
2. ORDERING SOFTWARE AND SERVICES
2.1 ORDER SCHEDULE. GSK may license Software and contract for
Services from time to time pursuant to Order Schedules or SOWs, as applicable.
Each Order Schedule and SOW shall become effective only after it is executed by
both Parties. Each Order Schedule and SOW shall specifically refer to this
Agreement and, except to the extent that the Parties agree in writing in the
Order Schedule or SOW, as applicable, that different terms and conditions shall
apply to such Order Schedule or SOW than set forth herein, the terms and
conditions of this Agreement shall govern such Order Schedule or SOW. Upon
execution by both Parties, Order Schedules and SOWs shall become part of, and be
subject to the terms of this Agreement.
3. LICENSES
3.1 GRANT OF LICENSES. In consideration of GSK's payment of the
license and other fees specified in an Order Schedule and GSK's covenants
contained herein, and subject to GSK's compliance with the terms hereof, Phase
Forward hereby grants to GSK a worldwide, nonexclusive, nontransferable (except
as hereinafter permitted) right and license (without the right to further
sublicense) to use the Software specified in an Order Schedule on the Computer
Systems solely for GSK's internal use in connection with Trials sponsored by GSK
(the "License").
3.2 SCOPE AND TERM OF LICENSES. The License for the Software
specified in an Order Schedule authorizes GSK, for the initial term specified
therein (the "Initial Term"), to install, execute, copy for archival purposes,
and use the number of copies of the Software specified in such Order Schedule,
and to use the Documentation for such Software in conjunction with its
installation and use.
3.3 RENEWAL OF LICENSES. Provided GSK is not then in breach of its
obligations under this Agreement, the License for the Software may be renewed
(each, a "Renewal Term") as specified in the Order Schedule.
3.4 CONTRACTORS AND INVESTIGATORS. Access to and use of Software
by Contractors and Investigators in connection with Trials sponsored by GSK and
its Affiliates shall be deemed to be "internal use" within the meaning of
Paragraph 3.1, provided that all such use is in accordance with the terms
hereof. In addition, GSK may provide access to the Software to off-site third
parties to whom GSK has outsourced information systems responsibilities
(including contract research organizations or other organizations providing
similar services that have been certified as trained by Phase Forward in the use
of the Software) provided that all such use by such third parties is solely for
GSK's business purposes. In addition, GSK may, with the prior written approval
of Phase Forward (which approval shall not be unreasonably withheld or delayed),
provide access to the Software to contract research organizations or other
organizations providing similar services that are not certified as trained in
the use of the Software Prior to receiving any access to, or using, the Software
or Documentation, such third parties must have executed a written agreement with
GSK in which they agree to use the Software and Documentation solely for GSK's
business purposes and comply with obligations of confidentiality regarding the
Software and Documentation set forth therein that are no less restrictive than
those applicable to the Software and Documentation set forth in this Agreement.
GSK shall be responsible for any breach of this Agreement by such third parties.
3.5 THIRD-PARTY SOFTWARE. GSK acknowledges that the third-parry
software specified in the Documentation ("Third-Party Software") is required in
order to use the Software, GSK further acknowledges that the License granted by
Phase Forward for Software does not include licenses for any such Third-Party
Software and that GSK is solely responsible for obtaining valid licenses for all
such necessary Third-Party Software. Phase Forward represents and warrants that
all Third Party Software will be available on the open market as of the date of
Delivery of the Software to GSK.
3.6 USE OF THE SOFTWARE. GSK agrees to use commercially reasonable
efforts to advise all users of the Software (including, without limitation,
Contractors and Investigators) that (i) the Software is designed to expedite and
improve the collection, management and analysis of specific and limited data in
Trials: (ii) such data do not comprise a complete patient medical record; (iii)
such data may be incorrect because of transcription or other errors; (iv) the
Software is not a diagnostic or therapeutic aid and must be used only for
research purposes, and (v) data collected by, or analyses performed by, the
Software must not be used for patient diagnosis or therapy decisions.
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3.7 REPRESENTATIONS BY GSK. GSK represents and covenants, with
respect to all Trials for which the Software is used, that (i) each such Trial
will be conducted in compliance with all applicable local, Federal and
international laws, treaties, rules, regulations, guidelines and codes of
practice relating to such Trial, including in particular those pertaining to
clinical investigations, the use of Investigational Products in humans, the
rights of subjects participating in clinical trials, compensation for
research-related injury and privacy of medical records (including the European
Data Privacy Act, to the extent applicable, and any other applicable regulations
governing the transfer of medical records to other countries or the inspection
of such records by government authorities or persons responsible for monitoring
clinical trials), and (ii), without limiting the generality of the foregoing,
that each such Trial will use consent forms which include such language which in
GSK's judgment is reasonably necessary, and such consent forms will be
implemented and obtained from subjects under such procedures which in GSK's
judgment are reasonably necessary, to ensure compliance with the foregoing.
4. DELIVERY AND ACCEPTANCE; SUPPORT; SERVICES
4.1 DELIVERY AND ACCEPTANCE.
4.1.1 DELIVERY. Phase Forward shall arrange for delivery of
the Software specified in an Order Schedule to GSK by an employee or agent of
Phase Forward or electronically through the Internet or other network.
4.1.2 TESTING. Upon initial delivery of a Software program
(i.e., the first copy or copies of a particular program to GSK) and its
Documentation, unless otherwise specified in the applicable Order Schedule, GSK
shall have sixty (60) days to test and/or review the Software in accordance with
this Paragraph 4.1 and the Acceptance Testing Procedures and Criteria set forth
in the applicable Order Schedule (the "Acceptance Tests") to determine whether
the Software conform to the applicable Specifications. Unless otherwise
specified in the applicable Order Schedule, such testing and/or review shall be
conducted in accordance with the following procedures and criteria:
(a) GSK will notify Phase Forward, in writing,
that it is accepting or rejecting the Software within sixty (60) days after
installation. If GSK fails to notify Phase Forward within of any failure within
the 60 day acceptance period, the Software shall be deemed accepted. Any notice
of rejection shall set forth the grounds for rejection. Phase Forward shall use
commercially reasonable efforts to remedy any failure of the Software to conform
to the applicable Specifications and shall thereafter have, unless otherwise
agreed to by the parties in writing, thirty (30) days to correct the deficiency
and to deliver corrected Deliverables to GSK.
(b) Upon receipt of corrected Deliverables, GSK
shall have thirty (30) business days within which to test and/or review them and
inform Phase Forward of its acceptance or rejection. This procedure may be
repeated any number of times; provided, however, if GSK detects a failure of the
Software to meet the Specifications after it has been tested twice, either party
shall thereafter have the right to terminate the applicable Order Schedule upon
written notice to the other party. Upon such termination and compliance with its
obligations under Xxxxxxxxx 00.0, XXX shall be entitled to a full refund of all
license fees made to Phase Forward for the Software prior to rejection, and
thereafter shall have no further obligations or liability to Phase Forward.
4.1.3 ACCEPTANCE. If, after completing the Acceptance
Tests, GSK determines that the Software conforms to the applicable
Specifications, GSK shall accept the Software by issuing a written confirmation
of acceptance to Phase Forward effective as of the date of successful completion
of the tests ("Acceptance").
4.2 SUPPORT. In the normal course of business, Phase Forward
intends to continue to invest in and enhance the Software. Subject to the terms
of this Agreement, Phase Forward shall provide GSK with the Support, including
Upgrades and new Versions of the Software, or functional equivalent products or
replacement products that provide web based investigator site data capture and
clinical data management capability, when and if commercially available, as set
forth in Schedule 2 hereto.
4.3 PERSONNEL. All personnel provided by Phase Forward to provide
Services hereunder, whether employees of Phase Forward or subcontractors, shall
be fully trained, competent and qualified to provide such Services. All work
shall be performed at such facilities as are mutually agreed appropriate and
shall be performed only by employees or subcontractors of Phase Forward. GSK
shall have the right to request the replacement of any Phase Forward personnel
performing Services hereunder who, in the reasonable judgment of GSK, are not
performing in a reasonably satisfactory manner. Such requests shall be made in
writing and include a statement of the reasons for GSK's request. In the event
of such a request, or in the
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event Phase Forward replaces personnel performing Services hereunder due to
their termination or resignation of employment with Phase Forward, Phase Forward
will use commercially reasonable best efforts to promptly replace such personnel
with personnel having adequate training, experience and qualifications to
provide the Services.
4.4 ACCESS; COMPLIANCE. To the extent that Services or Support are
provided on the premises of GSK, GSK agrees to provide reasonable working space
and facilities, and any other services and materials Phase Forward or its
personnel may reasonably request in order to provide such Services or Support.
Phase Forward shall ensure that its personnel at all times observe the security
and safety policies and working hours of GSK when providing Services or Support
on GSK's premises, and that the requirements of all federal, state and municipal
laws, statutes, ordinances, rules, regulations, orders, licenses and permits now
or hereafter in force applicable to Services, Support and this Agreement are
complied with.
4.5 GUIDANCE. GSK will advise Phase Forward of the GSK personnel
to whom Phase Forward's personnel will look for guidance in connection with
Deliverables provided hereunder. To the extent the Services or Support are
performed on the premises of GSK or are performed off the premises of GSK but
require the use of GSK's resources or the active involvement of GSK's personnel,
Phase Forward shall at all times use commercially reasonable efforts to minimize
any disruptions to GSK's normal business operations.
4.6 SUBCONTRACTORS. Subject to the provisions of Xxxxxxxxx 00.0,
Xxxxx Forward may, in its sole discretion, engage individuals who are
independent contractors under contract with Phase Forward to supplement its own
staff and other subcontractors with whom it contracts to provide Services
hereunder and may engage such independent and sub- contractors on such terms as
it reasonably deems necessary provided such terms are consistent with the
obligations imposed in Phase Forward hereunder. All such independent contractors
and subcontractors shall be required to enter into written agreements with Phase
Forward imposing obligations of confidentiality on such independent contractors
and subcontractors substantially the same as those imposed on Phase Forward
hereunder with respect to GSK's confidential and proprietary materials and
information. . Notwithstanding the foregoing, Phase Forward shall be and remain
primarily liable and responsible for the compliance with the provisions of this
Agreement, including those relating to the confidentiality of GSK's confidential
and proprietary materials and information.
5. FEES, PAYMENTS AND TAXES
5.1 FEES. Fees for Software (which include the cost of supplying
Support) provided by Phase Forward pursuant to this Agreement shall be set forth
in the applicable Order Schedule and payable in accordance with such Order
Schedule and this Section 5. Fees for Services provided by Phase Forward
pursuant to this Agreement shall be set forth in the applicable SOW and payable
in accordance with such SOW and this Section 5. Unless otherwise agreed by the
parties in writing, invoices shall be sent from Phase Forward Europe Limited to
GSK, and the amounts due thereunder shall be stated in Pound Sterling.
5.2 EXPENSES. GSK shall reimburse Phase Forward for out-of-pocket
travel and lodging expenses reasonably and actually incurred by Phase Forward in
providing Support and Services to GSK, provided that such expense have been (i)
approved by GSK in advance, and (ii) incurred in conformance with GSK's
Contractor Time and Expense Reimbursement Guidelines attached as Exhibit B
attached hereto. GSK shall not, however, be billed for travel to sites less than
fifty (50) miles from an employee's or subcontractor's residence or office.
Expenses will be payable and invoiced monthly in accordance with Paragraph 5.4.
5.3 NO ADDITIONAL CHARGES. Unless otherwise expressly set forth in
an Order Schedule or an SOW , there shall be no additional charges for Support
or Services including, without limitation, charges based on the distance of
GSK's sites from Phase Forward.
5.4 PAYMENT. Unless GSK has reasonable cause to believe that Phase
Forward has rendered an invoice improperly (in which event GSK shall promptly
notify Phase Forward and the Parties shall promptly review the invoice and
supporting documentation and negotiate in good faith to resolve any dispute),
GSK shall make each payment specified in this Section 5 within forty-five (45)
days after receipt of Phase Forward's invoice.
Phase Forward SLSA 8.7
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5.5 RECORDS AND AUDITS.
5.5.1 BY GSK. During the term of any Order Schedule and for
a period of two (2) years after its termination, GSK shall keep such records
that are reasonably necessary to verify that the Software have been installed
and used as specified in such Order Schedule. Prior to the second (2nd)
anniversary of the termination of any Order Schedule, Phase Forward shall have
the right, at its own expense, to cause audits to be conducted by a major
national accounting firm of any of GSK's relevant records relating to the
foregoing. Any such audit shall be conducted during regular business hours at
GSK's offices and in such a manner as not to unreasonably interfere with GSK's
normal business activities. GSK or Phase Forward, as the case may be, shall make
prompt adjustment to compensate for any errors or omissions in any fees payable
to Phase Forward disclosed by an audit. Notwithstanding the foregoing, GSK shall
pay for the cost of any audit if such audit discloses errors or omissions
resulting in underpayment to Phase Forward of more than ten percent (10%) in the
aggregate. In no event shall audits be made more frequently than annually,
unless a prior audit within the previous twelve (12) months has disclosed such
underpayment. The results of such audits shall be considered the Confidential
Information of GSK for purposes of Section 7 hereof.
5.5.2 BY PHASE FORWARD. Phase Forward shall make and keep
complete written records of all Services performed and expenses incurred
pursuant to this Agreement. Phase Forward shall provide to GSK, its auditors
(including internal audit staff and external auditors, (with such external
auditors being subject to Phase Forward's approval, which approval shall not to
be unreasonably withheld or delayed), engaged at GSK's expense, and government
regulators access upon reasonable notice (and, in the case of regulators, at any
time required by such regulators, but in the case of audits independently
initiated by GSK, limited to no more than twice annually during the Term of any
License) to (a) any facility or part of a facility at which Phase Forward is
providing Services (or, in the instances where such Services are performed or
provided by Phase Forward using permitted independent contractors and
subcontractors, Phase Forward shall obtain complete and accurate records of the
Services performed and expenses incurred by such permitted independent
contractors and subcontractors and make them available to GSK's audit staff and
external auditors as aforesaid), (b) Phase Forward Personnel, (c) to summaries
of audit reports resulting from audits that Phase Forward has conducted of its
subcontractors, and (d) data and records relating to the Services for the
purpose of performing audits and inspections of either Phase Forward or any of
its permitted subcontractors during the Term and for the period Phase Forward is
required to maintain records hereunder, to:
(i) Verify the accuracy of fees, expenses and other
charges invoiced;
(ii) Examine the systems that process, store, support and
transmit that Data; and
(iii) Examine the following in accordance with performance
of the Services and to the charges therefore: (a)
Phase Forward's compliance with its Standard
Operating Procedures; (b) supporting information and
calculations regarding compliance with Service
Levels; (c) disaster recovery and back-up procedures;
(d) as necessary to enable GSK to meet, or to confirm
that Phase Forward is compliant with applicable
regulatory and other legal requirements; and (e)
Phase Forward's compliance with the requirements of
the following GSK Policies: (1) External Systems
Security Requirements (attached hereto as Exhibit D);
(2) Web Hosting Requirements (attached hereto as
Exhibit E); and (iii) Records Retention Policy and
Schedule (attached hereto as Exhibits F and F-1
respectively).
5.5.3 COOPERATION. Phase Forward shall provide to the
auditors, inspectors, regulators and other representatives to be provided access
to Phase Forwards records pursuant to Paragraph 5.5.2 above such assistance as
they may reasonably require, at GSK's sole expense. Phase Forward shall
cooperate fully with GSK or its designees in connection with audit functions and
with regard to examinations by regulatory authorities. GSK's auditors and other
representatives shall comply with Phase Forward reasonable security
requirements. Phase Forward shall conduct audits of or pertaining to the
Services in such manner and at such times as is consistent with the terms of
this Agreement and the audit practices of well managed operations performing
services similar to the Services. Phase Forward shall perform a security audit
at least annually during the Term hereof. Notwithstanding the intended breadth
of GSK's audit rights, GSK shall not be given access to the proprietary
information of other Phase Forward customers or contracts; Phase Forward
locations that are not related to GSK or the Services; or (iii) Phase Forward
internal costs. In performing audits, GSK shall use commercially reasonable
efforts to avoid unnecessary disruption of Phase Forward operations and
unnecessary interference with Phase Forward ability to
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perform the Services in accordance with the Service Levels. Except where GSK has
received from a governmental body a notice requiring immediate access to the
information requested, such audits shall be conducted upon reasonable prior
notice and during normal business hours.
5.5.4. RECORDS RETENTION. Unless otherwise expressly set
forth in an Exhibit or applicable SOW, until the later of (i) three (3) years
after expiration or termination of this Agreement; or (ii) pending matters
relating to the Agreement (e.g., disputes) are closed. Notwithstanding the
foregoing, this provision does not create any obligation for Phase Forward to
retain any Trial related information, including Trial data, after completion of
Services related to a Trial. GSK shall reimburse Phase Forward for its out-of
pocket expense incurred as a result of the return of such information.
5.6 TAXES. The amounts payable to Phase Forward hereunder do not
include, and GSK shall be solely responsible for the payment of, any sales
and/or use tax, transfer tax, value added tax, excise tax, tariff, duty or any
other tax or payment in lieu thereof imposed by any domestic or foreign
governmental authority or agency with respect to the Software, Support and
Services provided by Phase Forward hereunder; excluding taxes based upon Phase
Forward's net income or corporate franchise. GSK has a Direct Pay Certificate
(Certificate No. 00499) with the state of North Carolina. This Direct Pay
Certificate authorizes GSK to accrue and pay its North Carolina sales tax
liability directly to the N.C. Department of Revenue. Accordingly, for items
shipped to North Carolina, Phase Forward shall not assess North Carolina sales
tax on GSK. Phase Forward's invoices submitted hereunder shall separately state
the amount of any taxes Phase Forward is collecting from GSK, if any. For
services subject to Pennsylvania state sales or use tax, Phase Forward shall
separately state the taxable amount of such Services, if any, on each invoice.
Phase Forward shall bear all responsibility and liability for all sales, use,
excise, services, consumption, and other taxes and duties payable by Phase
Forward on any goods or services used or consumed by Phase Forward in providing
the Support or Services hereunder where the tax is imposed on Phase Forward's
acquisition or use of such goods or services. Phase Forward shall bear all
responsibility and liability for the payment of all federal, state and local
income taxes due on money received from GSK hereunder and filing all appropriate
tax returns and other forms with respect thereto. Phase Forward agrees to
indemnify and hold GSK harmless from and against any and all such liabilities or
claims relating to the taxes and duties for which it is responsible hereunder
including, but not limited to, interest assessed or penalty and reasonable
attorney's fees incurred, arising from Phase Forward's failure to pay such taxes
or duties, or pay such taxes or duties in a timely manner.
5.7 COMPENSATION OF EMPLOYEES. Phase Forward shall bear sole
responsibility for payment of compensation to its personnel providing Support
and Services hereunder. Phase Forward shall bear sole responsibility for the
payment and reporting of all federal and state income tax withholding, social
security taxes and unemployment insurance applicable to such personnel as
employees of Phase Forward. Phase Forward shall bear sole responsibility for any
health or disability insurance, retirement benefits or other welfare or pension
benefits, if any, to which such personnel may be entitled.
6.0 PHASE FORWARD'S INTELLECTUAL PROPERTY
6.1 ACKNOWLEDGMENT OF RIGHTS. GSK acknowledges that: (i) as
between Phase Forward and GSK, all right, title and interest in and to the
Deliverables (including any and all patents, copyrights, trade secret rights,
trademarks, trade names and other intellectual property rights embodied therein
or associated therewith) are and shall remain the property of Phase Forward and
its licensors (if any); (ii) this Agreement in no way conveys any right or
interest in the Deliverables other than the rights and license to use them set
forth herein; (iii) Phase Forward asserts that Deliverables are works protected
by the patent and copyright laws of the United States and by international
treaties; and (iv) Phase Forward asserts that the Deliverables embody valuable
confidential and secret information of Phase Forward or its licensors (if any),
the development of which required the expenditure of considerable time and
money.
6.2 GSK'S OBLIGATIONS. Except as may be otherwise expressly
authorized herein, GSK shall; (i) not disclose or provide any Software or
Documentation to any other party; (ii) not disclose the results of any
benchmarking activity to a third party other than consultants or others working
for GSK under appropriate confidentiality agreements; (iii) not alter, reverse
engineer, disassemble, decompile or copy any Software; (iv) limit access to the
Software to its employees, Contractors and Investigators who require access in
connection with GSK's use of the Software as authorized hereunder and who have
agreed in writing or are otherwise legally bound to observe obligations of
confidentiality with respect to confidential information belonging to party's
with whom GSK deals; (v) take the same precautions, including secure storage of
all media containing copies of the Software, to prevent unauthorized or improper
use or disclosure of the Deliverables that GSK takes to protect its own
confidential
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information of a similar nature; and (v) not remove from, and reproduce on any
authorized copies of, the Deliverables all titles, trademarks, trade names, and
copyright, patent and other proprietary or restrictive legends or notices.
6.3 PHASE FORWARD'S OBLIGATIONS. Phase Forward acknowledges that
Phase Forward or Phase Forward's authorized employees and subcontractors may
receive or have access to "GSK Specific Information" (defined below). Phase
Forward and Phase Forward's authorized employees and subcontractors shall use
GSK Specific Information solely for the purposes of this Agreement and for no
other purpose whatsoever. Phase Forward shall also comply with all applicable
laws, governmental regulations, rules, requirements, ordinances, and other
requirements of local and state authorities and the Federal government regarding
GSK Specific Information. For the purposes of this Agreement, "GSK Specific
Information" means the following information obtained from or disclosed by GSK:
Information related to Drugs and Healthcare Products and Services. This
is information that relates to (a) the research, development, chemical
composition, manufacture, analysis, testing, and utility of chemicals
being developed or under consideration for use as a pharmaceutical
drug, and (b) the development and delivery of other (non-drug)
healthcare products and services, including, without limitation,
technical descriptions of such products and/or services.
(a) Healthcare Information. This is information, data,
facts, and materials which are used to:
(i) maintain, facilitate, cure, improve, or
document a human or animal physiological
condition or state;
(ii) deliver a service to maintain, facilitate,
cure, improve, or document a human or animal
physiological condition or state; or
(iii) insure or underwrite the maintenance,
facilitation, cure, improvement, or
documentation of a human or animal
physiological condition or state, and which
uses the information, data, facts, or
materials described in (i) or (ii) above.
(b) Financial Information of any sort, including, without
limitation, financial information of GSK Entities,
their customers, suppliers, and strategic partners,
including, without limitation, cost information,
sales forecasts, profits or financial results, and
tax audits or reports.
(c) Personnel Information of any sort; including, without
limitation, human resource, payroll, and benefits
information.
(d) Statistical Information of any sort.
(e) Business Plans of any sort, including, business plans
of the GSK Entities, their customers, suppliers, and
strategic partners, including, without limitation,
marketing, operating, organizational, and business
strategic plans, and merger and acquisition
information.
(f) Computer Software Developed and Used Internally by
GSK.
(g) Computer Software Licensed from Third Parties.
(h) Corporate Governance Information, including, without
limitation, board of director meeting minutes and
senior executive correspondence.
(i) Information Concerning Litigation with a
Third Party, including, without limitation,
product liability information.
(j) Medical and Personal Information of Third
Parties.
Phase Forward SLSA 8.7
8
6.4 INJUNCTIVE RELIEF. Each Party specifically agrees that a
breach by the other Party of its obligations under this Section 6 may cause the
non-breaching Party irreparable damage for which remedies other than injunctive
relief may not be adequate, and that in the event of any such breach
non-breaching Party shall be entitled to seek an injunction or similar equitable
relief immediately upon request to a court of competent jurisdiction. Nothing
contained in this Paragraph 6.3 shall be construed as agreement by either Party
that the other Party is entitled to damages or to any remedy other than that
expressly provided for by the foregoing, or by the non-breaching Party that it
is not entitled to damages or to any other remedies in addition to injunctive
relief.
7. CONFIDENTIALITY
7.1 GENERAL. The Parties each acknowledge and agree that in the
course of performance of this Agreement, they may be exposed to or acquire
information which is proprietary to or confidential to the other Party, its
Affiliates, and their clients and customers (including, without limitation, any
information relating to technology, marketing, product development or business
plans, customers or prospects, trade secrets and any other information not
generally known to the public). Any and all of the foregoing information in any
form obtained by the other Party or its, agents, employees, consultants or
representatives in the performance of this Agreement shall be deemed to be the
confidential and proprietary information of such party. The Parties agree to use
reasonable efforts to hold such information in confidence but not less than
those efforts that the Party receiving such information uses to protect the
confidentiality of its own confidential information of a similar nature, and
(except as permitted hereunder) not to copy, reproduce, sell, assign, license,
market, transfer, give or otherwise disclose such information to third parties
or to use such information for any purposes whatsoever, without the express
written permission of the other Party, other than for the performance of this
Agreement, and to advise each of their employees, agents and representatives of
their obligations to keep such information confidential. All such confidential
and proprietary information described herein and any Deliverable provided
hereunder, in whatever form, are hereinafter collectively referred to as
"Confidential Information." The Parties shall use commercially reasonable best
efforts to assist each other in identifying and preventing any unauthorized use
or disclosure of any Confidential Information. Without limitation of the
foregoing, the Parties shall use commercially reasonable best efforts to advise
each other promptly in the event that either learns or has reason to believe
that any person who has had access to Confidential Information has violated the
terms of this Agreement, and to cooperate in seeking injunctive relief against
any such person.
7.2 NON-CONFIDENTIAL INFORMATION. Notwithstanding the obligations
set forth in Paragraph 7.1 above, the confidentiality obligations of the Parties
shall not extend to information that (i) is, as of the time of its disclosure,
or thereafter becomes part of the public domain through no fault of the
receiving party; (ii) was already in the receiving Party's possession without
restriction on disclosure at the time of disclosure; (iii) is independently
developed by the receiving party without use of the other Party's Confidential
Information; (iv) is rightfully obtained from a third party without restriction
on disclosure; or (v) is required by law to be disclosed, including but not
limited to disclosures required by the Food and Drug Administration.
7.3 USE OF GSK'S NAME. Except for announcements intended solely
for internal distribution within Phase Forward, or disclosures required by law
or government regulation (including, without limitation, disclosures required by
the U.S. Securities & Exchange Commission in connection with Phase Forward's
initial public stock offering, and thereafter, by Phase Forward as a publicly
traded company), Phase Forward shall not directly or indirectly publish, approve
or issue any advertising, sales promotion, press release or public statement
relating to this Agreement or any products furnished or services performed by
Phase Forward for GSK wherein GSK's name, trade name, trademark and/or logo is
expressly mentioned or language is used from which GSK's identity may, in GSK's
reasonable judgment, be inferred or implied (a "Prohibited Publication"),
without the prior written approval of GSK's authorized representative, which
approval may be withheld in GSK's absolute discretion. If, during the term of
this Agreement, Phase Forward makes any Prohibited Publication available to
third parties without first obtaining GSK's approval as required hereinabove,
Phase Forward agrees that GSK may immediately (i) issue at Phase Forward's sole
expense, or have Phase Forward issue with GSK's prior written approval, a
retraction or correction of such Prohibited Publication; or (ii) obtain an
injunction or other appropriate equitable remedy to prevent Phase Forward from
issuing additional Prohibited Publications; and/or (iii) notwithstanding other
provisions of this Agreement to the contrary, terminate this Agreement, but not
any licenses granted pursuant to this Agreement. The remedies set out herein
shall be cumulative with respect to any other remedies which GSK may have under
this Agreement or otherwise. Notwithstanding the foregoing, following execution
of this Agreement the parties agree to issue joint press release, the content of
which is to be approved by both parties.
Phase Forward SLSA 8.7
9
8. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES
8.1 INTELLECTUAL PROPERTY WARRANTY. Phase Forward represents and
warrants that it owns all intellectual property rights in the Deliverables, or
has such rights by license from the owner thereof, necessary for it to grant the
rights and licenses granted to GSK hereunder, free from and clear of all liens,
encumbrances or other restrictions that are inconsistent with such grant, and
has the right to enter into this Agreement. Phase Forward shall indemnify GSK as
provided in Paragraph 9.1(a) against any claim of a breach of the limited
intellectual property warranty set forth in this Paragraph 8.1.
8.2 * WARRANTY. Phase Forward represents and warrants that none of
the Deliverables * . Further, except for the *, no claim of *. Phase Forward
shall indemnify *.
8.3 WARRANTY OF CONFORMITY. Phase Forward represents and warrants
for the benefit solely of GSK, that for a period of ninety (90) days after
Acceptance of the initial Delivery of the Software (or after Delivery of the
Software, if the Acceptance provisions do not apply) specified on an Order
Schedule ("Warranty Period"), the Software shall conform to the Specifications
applicable thereto. Phase Forward makes no warranty that any Software will
operate uninterrupted or be Error-free. The warranty set forth in this
Paragraph 8.3 shall not apply to Errors attributable to (i) use of a Software
other than in accordance its Documentation, or (ii) which result from
modifications to the Software not done or authorized by Phase Forward. GSK
acknowledges that Errors may exist or occur in the Software. Phase Forward shall
promptly either correct such deficiency or provide GSK with a plan acceptable to
GSK for correcting the deficiency within a reasonable period of time. If Phase
Forward cannot make a Software operate as warranted, then Phase Forward shall
refund to GSK all license fees paid for such Software upon GSK's return of such
non-conforming Software.
8.4 WARRANTY AGAINST DISABLING DEVICES. Phase Forward represents
and warrants that no "lockout", restraint or disabling code or devices are
incorporated or present within any Software at the time the Software is licensed
by Phase Forward to GSK. In no event will Phase Forward remove, alter, change or
interfere with any Software for purposes of preventing GSK other parties so
permitted under this Agreement from using a Software, as the result of any
dispute under this Agreement. Phase Forward will not, prior to such licensing or
thereafter during the term of this license or any license for an upgraded or
modified version of any Software, modify any Software to restrict its use by GSK
or other parties so permitted under this Agreement to, without limitation,
particular CPU's, required passwords, periods of time, or other restrictions,
without the prior written agreement of GSK. Notwithstanding the foregoing, GSK
acknowledges that Phase Forward may be compelled to implement security or
similar measures in response to a regulation or directive of a governmental body
having regulatory authority over the Software or Services and agrees to accept
and cooperate with any such required measures. Phase Forward agrees to provide
GSK with written notice of its obligation in respect of such measures prior to
their implementation.
8.5 PHASE FORWARD FURTHER REPRESENTS AND WARRANTS THAT:
8.5.1 It has no outstanding agreement or obligation which
is in conflict with any of the provisions of this Agreement, or that would
preclude Phase Forward and its subcontractors from complying with the provisions
hereof and further certifies that it will not enter into any such conflicting
agreement during the term of this Agreement.
8.5.2 All Services shall be performed under this Agreement
in a workmanlike manner and with professional diligence and skill and shall
conform in all material respects with the performance specifications set forth
herein or in an Order Schedule.
8.5.3 To the best of its knowledge, (i) there are no GSK
employees with significant fiduciary interest in it or its affiliates, (ii) no
GSK employees serve as officers, shareholders, directors, consultants or
employees of Phase Forward and/or its affiliates, and (iii) no GSK employees are
compensated by or act on Phase Forward's or its affiliates' behalf, nor are
related by blood or marriage to any of Phase Forward's and/or its affiliates'
officers which have contractual authority to legally bind Phase Forward and/or
its affiliates. In the event that such conflict exists or arises, Phase Forward
agrees to make full and effective disclosure to GSK.
Phase Forward SLSA 8.7
10
8.5.4 It has not provided any form of compensation or
remuneration to any GSK employee regarding the issuance of this Agreement, Order
Schedules related thereto and/or GSK's commercial relationship with Phase
Forward and/or its affiliates.
8.5.5 It is not currently debarred, suspended or otherwise
excluded by the U.S. Government or an agency thereof from receiving federal
contracts. Phase Forward certifies by accepting this Agreement or any part
thereof that any subcontractor assigned to perform services under this Agreement
is not debarred, suspended or proposed for debarment by the U.S. Government.
Debarment, suspension or proposed debarment by the U.S. Government will
constitute grounds for automatic termination of this Agreement by GSK.
8.6 DISCLAIMER OF OTHER WARRANTIES. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER REPRESENTATIONS
AND WARRANTIES AND PHASE FORWARD HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW OR
OTHERWISE, REGARDING OR RELATING TO THE SERVICES OR DELIVERABLES FURNISHED TO
GSK HEREUNDER OR IN CONNECTION HEREWITH. PHASE FORWARD SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO REPRESENTATION OR OTHER
AFFIRMATION OF FACT BY PHASE FORWARD WHICH IS NOT CONTAINED IN THIS AGREEMENT.
9. INDEMNIFICATION
9.1 INDEMNIFICATION BY PHASE FORWARD
9.1.1 BREACH OF INTELLECTUAL PROPERTY WARRANTY. Phase
Forward agrees, at its sole expense, to defend, indemnify, and hold GSK and its
directors, officers, employees and agents (including successors and assigns)
harmless from and against any and all costs and liabilities in connection with
any third party claim, suit or action (collectively, a "Claim") for infringement
of patents, copyrights or other proprietary rights associated with any
Deliverable, Support or Service, or its intended use. Phase Forward's
obligations under this Paragraph 9.1.1 are conditioned upon GSK's agreement that
if any Deliverable, or the use or operation thereof, becomes, or in Phase
Forward's reasonable opinion is likely to become the subject of a Claim, Phase
Forward may, at its sole expense, (i) procure for GSK the right to continue
using the infringing Deliverable, Support, or Service, or at its option, (ii)
modify the infringing Deliverable, Support or Service so that the same becomes
non-infringing (provided such replacement or modification does not materially or
adversely affect GSK's intended use of such Deliverable, Support or Service as
contemplated hereunder), or (iii) replace the infringing Deliverable, Support or
Service with software, support or service, as applicable, that is non-infringing
and functionally equivalent to the infringing Deliverable, Support or Service.
Any such replacement Deliverable, Support or Services shall be subject to all of
the acceptance, warranties and the other terms and conditions of this Agreement
including, without limitation, the foregoing indemnification provisions and the
representations and warranties set forth in Paragraph 8 above. If none of the
foregoing alternatives is available on commercially reasonable terms, GSK will
return such Deliverable or discontinue using the Support or Service on written
request by Phase Forward and Phase Forward will, at GSK's option, either credit
or refund to GSK that portion of the license fees paid for such Deliverable or
Service under the applicable Order Schedule as follows:
(a) In the * of the applicable Order Schedule or Statement of Work: *% of total fees paid.
(b) In the * of the applicable Order Schedule or Statement of Work: *% of total fees paid.
(c) In the * of the applicable Order Schedule or Statement of Work: *% of total fees paid.
(d) In the * of the applicable Order Schedule or Statement or Work: *% total fees paid.
(e) In the * of the applicable Order Schedule or Statement of Work: *% of total fees paid.
In the event there is an Order Schedule or Statement of Work for a term longer
than *, and the claim occurs after the * of the contract term (and the
infringement cannot be resolved or eliminated using one of the remedies set
forth in clauses (i) through (iii) above) or , GSK will return the infringing
Deliverable or discontinue using the infringing Support or Service upon the
written request by Phase Forward and there will be no refund of fees previously
paid.
Phase Forward SLSA 8.7
11
If, as a result of GSK being required to cease using the infringing Deliverables
or discontinue using the infringing Support or Service on written request by
Phase Forward under this Xxxxxxxxx 0.0, XXX is required to transfer clinical
data from computer systems that used such Deliverables, Product or Service,
Phase Forward will promptly cooperate with and provide reasonable assistance to
GSK in connection with such transfer.
In the event that * obtains * against Phase Forward or GSK * in accordance with
this Agreement, then GSK may, as an alternative to the remedies set forth in
clauses (i) through (iii) above, at its option, * in accordance with this
Agreement. In such event, GSK will receive a credit equal to * for the right to
* in accordance with this Agreement against license fees due to Phase Forward *
under this Agreement. Notwithstanding the foregoing, GSK may not * that would
result in Phase Forward being liable for any costs, liabilities or damages as a
result of *. The foregoing provision in this paragraph sets forth Phase
Forward's entire liability to GSK for * in accordance with this paragraph.
Phase Forward shall have no liability for any claim or action based upon (i) the
combination, operation or use of any Deliverable, Support or Service with
equipment, software or data not supplied or specified as being compatible with
or approved in writing by Phase Forward, or (ii) a modification of any
Deliverable that is not performed or authorized by Phase Forward. The foregoing
states the entire liability of Phase Forward with respect to any claim of
infringement.
9.1.2 INCOME TAXES, COMPENSATION AND INSURANCE. Phase
Forward shall indemnify and hold GSK and its directors, officers, employees,
agents and administrators of GSK's benefit plans (including successors and
assigns) harmless against from and against any third party claims, liabilities
or expenses (collectively, a "Claim") arising out of or related to Phase
Forward's failure to meet its obligations under Paragraphs 5.6 and 5.7.
9.1.3 PERSONAL INJURY AND PROPERTY DAMAGES. Phase Forward
shall indemnify and hold GSK and its directors, officers, employees and agents
(including successors and assigns) harmless from and against all claims,
demands, proceedings, damages, costs, charges and expenses (including without
limitation reasonable attorney's fees) whatsoever (collectively, a "Claim") in
respect of injury (including death) to any persons or loss or damage to any real
or tangible property which may arise out of the negligent act or omission or
intentional wrongdoing of Phase Forward, its subcontractors, employees or agents
in the performance of its obligations under this Agreement, provided that Phase
Forward shall not be liable for nor be required to indemnify GSK in regard to
any injury, loss or damage to the extent that such injury, loss or damage is
caused by any negligent act or omission or intentional wrongdoing on the part of
GSK, its employees or agents.
9.1.4 FRAUD. Phase Forward shall indemnify and hold GSK and
its directors, officers, employees and agents (including successors and assigns)
harmless from and against all loss (a "Claim") resulting from any acts of fraud
or, embezzlement committed by Phase Forward, its employees, subcontractors or
agents, acting alone or in collusion with another party, in the performance of
Phase Forward's obligations hereunder. The absence of insurance shall not
diminish Phase Forward's responsibility to indemnify GSK.
9.2 INDEMNIFICATION BY GSK REGARDING INVESTIGATIONAL PRODUCTS. GSK
shall indemnify and hold Phase Forward and its directors, officers, employees
and agents (including successors and assigns) harmless against any claim or
action by any third party and resulting costs, damages, expenses (including
reasonable attorneys' fees) and liabilities (collectively, a "Claim") arising
out of or relating to any accident, adverse event, illness, disability, death or
other medical-related problem in any way arising out or relating to, or alleged
to arise out of or relate to, (i) any clinical trial of an Investigational
Product for which any Software was used and (ii) any product derived from or
based on such clinical trial or Investigational Product.
9.3 CONDITIONS OF INDEMNIFICATION. The indemnification provisions
of Paragraphs 9.1 and 9.2 above shall be conditioned upon the indemnified party
providing written notice to the indemnifying party of any Claim within a
reasonable period of time after becoming aware of such Claim, furnishing such
information and cooperation as the indemnifying party may reasonably require in
the investigation, defense and/or resolution of such Claim at the indemnifying
party's sole expense,
Phase Forward SLSA 8.7
12
and giving complete control of the defense and all related settlement
negotiations to the indemnifying party, although the indemnified party may be
represented by separate advisory counsel at its own expense.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION
OBLIGATIONS OF THE PARTIES SET FORTH IN THIS AGREEMENT AND CLAIMS FOR LOSSES AND
DAMAGES ARISING OUT OF EITHER PARTY'S BREACH OF ITS OBLIGATIONS OF
CONFIDENTIALITY UNDER PARAGRAPH 7.1 ABOVE, NEITHER OF WHICH SHALL BE LIMITED BY
THIS SECTION 10, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT,
TORT, BREACH OF WARRANTY OR OTHERWISE), PHASE FORWARD'S LIABILITY FOR DAMAGES
HEREUNDER SHALL BE LIMITED TO ACTUAL DIRECT MONEY DAMAGES CAUSED BY THE SERVICE
OR DELIVERABLE COMPLAINED OF AND SHALL NOT EXCEED THE AMOUNTS DUE AND PAYABLE,
OR PAID, TO PHASE FORWARD UNDER THE TERMS OF THE APPLICABLE ORDER SCHEDULE OR
STATEMENT OF WORK AS OF THE DATE THE CLAIM AROSE. NEITHER PARTY SHALL BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING
BUT NOT LIMITED TO LOST BUSINESS PROFITS, REVENUE, GOODWILL, SHAREHOLDER
CONFIDENCE AND LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF THE PARTY SOUGHT TO
BE HELD LIABLE FOR SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES
UNDER CERTAIN CIRCUMSTANCES AND THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
10.2 EFFECT OF PROVISIONS. Each provision of this Agreement which
provides for a limitation of liability, disclaimer of warranties or exclusion of
damages, is intended by the Parties to be severable and independent of any other
such provision and to be enforced as such. If any limited remedy provided herein
is determined to have failed of its essential purpose, all limitations of
liability and exclusions of damages set forth herein shall nonetheless remain in
effect.
11. INSURANCE
11.1 INSURANCE. Without limiting its responsibilities under
Sections 8 and 9 (Limited Warranties and Disclaimers of Warranties;
Indemnification), Phase Forward shall maintain in force at all times during the
Term of this Agreement with insurance companies having an A.M. Best rating of A
or better, the following insurance and shall, prior to signing this Agreement,
provide to GSK certificates of insurance for each type of insurance specifying
that GSK will receive no less than (30) days' prior written notice of
cancellation, non-renewal or material change, except where 30 days' notice is
impractical, in which case notice will be provided as promptly as reasonably
practicable prior to cancellation, non-renewal or material change.
11.1.1 EMPLOYER'S LIABILITY INSURANCE AND WORKERS'
COMPENSATION INSURANCE, in accordance with the laws of the country, state or
territory exercising jurisdiction over the employee with minimum limits per
employee and per event of $1,000,000.
11.1.2 COMMERCIAL GENERAL LIABILITY: Commercial General
Liability Insurance for the sum of not less than $1,000,000 for any one
occurrence and $2,000,000 in the aggregate annually.
11.1.3 PROPERTY INSURANCE coverage, for all risks of
physical loss of or damage to buildings property that is owned by Phase Forward.
11.1.4 AUTOMOTIVE LIABILITY INSURANCE with a minimum
combined single limit per accident of $1,000,000,
coverage for Employee Dishonesty for loss or damage arising out of or in
connection with any fraudulent or dishonest acts committed by the employees of
Phase Forward, acting alone or in collusion with others, including the property
and funds of others in their possession, care, custody or control, with a
minimum limit per event of $75,000.
Phase Forward SLSA 8.7
13
11.1.6 ERRORS AND OMISSIONS LIABILITY INSURANCE with a
minimum limit per event of $10,000,000.
11.1.7 UMBRELLA LIABILITY INSURANCE with a minimum limit of
$10,000,000 in excess of the insurance coverage described in Paragraphs 11.1.1
and 11.1.2.
11.1.8 TERMS OF COVERAGE. The insurance coverage required
under Paragraphs 11.1.1 through 11.1.6 shall be primary, and all such coverage
shall be non-contributing with respect to any other insurance or self insurance
which may be maintained by GSK. All coverage required by this Section 11 shall
include a waiver of subrogation and a waiver of any insured-versus-insured
exclusion regarding GSK. To the extent any coverage is written on a claims-made
basis, it shall have a retroactive date prior to the Effective Date and shall
allow for reporting of claims for at least one (1) year after the Term. The
maintenance of such insurance is the sole responsibility of Phase Forward, and
GSK will not be required to bear any of the cost thereof. Phase Forward shall
submit Certificates of Insurance evidencing the coverage required herein upon
execution of the Agreement. All responsibility for payment of sums under any
deductible or self-insured retention provisions of the policy or policies shall
remain with Phase Forward, and approval of the insurance by GSK shall not in any
way relieve or decrease the liability of Phase Forward hereunder. It is
expressly understood and agreed that GSK does not in any way represent that the
above specified limits of liability or policy forms are sufficient or adequate
to protect Phase Forward's interests or liabilities.
11.1.9 GSK shall be named as an additional insured as its
interests may appear but only insofar as its interests may appear in relation to
Services and Support provided by Phase Forward under this Agreement on all
policies except, the Workers' Compensation, Errors and Omissions and Crime
insurance policies. Phase Forward shall on request permit GSK to examine
original insurance or other protective policies issued in compliance with the
requirements hereof. If Phase Forward at any time neglects or refuses to provide
or cause to be provided the insurance required herein, or should such insurance
be canceled, GSK shall have the right to procure the same and the cost thereof
shall be deducted from monies then due or thereafter to become due Phase
Forward. Phase Forward shall not commence work until all of the insurance
required herein shall have been obtained. Without limiting Phase Forward's
obligations under Paragraphs 4.6 and 11.1.8, Phase Forward shall assure that its
subcontractors, if any, maintain insurance consistent with Phase Forward's
normal business practices reasonably appropriate for the nature and scope of
services being provided by such subcontractors to Phase Forward..
11.1.10 REQUIRED ACTION. In the case of loss or damage or
other event that requires notice or other action under the terms of any
insurance coverage specified in this Xxxxxxx 00, Xxxxx Xxxxxxx shall be solely
responsible to take such action. Phase Forward shall provide GSK with
contemporaneous notice and with such other information as GSK may request
regarding the event.
11.1.11 ADDITIONAL INDEMNITY. In addition to the
indemnification provisions set forth elsewhere in this Agreement and not in
limitation thereof, Phase Forward agrees to indemnify and hold GSK, its
Affiliates and their respective shareholders, officers, directors, employees,
agents, successors, and assigns harmless from and against any anrl all claims.
suits, actions, liabilities, losses, costs, reasonable attorney fees, expenses,
judgments or damages resulting from any claim made or sun brought by Phase
Forward's employees or their representatives for personal injury or death
arising out of, during, or from performance hereunder, as a result of any
negligent or intentional act, error or omission of Phase Forward.
12. TERM AND TERMINATION
12.1 TERM. THIS AGREEMENT shall be effective as of the date first
set forth above and shall continue in effect unless and until terminated in
accordance with the provisions of this Section 12.
12.2 TERMINATION BY EITHER PARTY. Either Party may terminate the
Agreement upon thirty (30) days' written notice if the other Party becomes or is
adjudicated insolvent or bankrupt, admits in writing its inability to pay its
debts as they mature, or makes an assignment for the benefit of creditors; or if
a Party applies for or consents to the appointment of any receiver, trustee or
similar officer for it or for all or any substantial part of its property; or
such receiver, trustee or similar officer is appointed without the consent of
the Party; or if a Party institutes or has instituted against it any bankruptcy,
insolvency, reorganization, moratorium, arrangement, readjustment or debt,
dissolution, liquidation or similar proceeding
Phase Forward SLSA 8.7
14
relating to it under the laws of any jurisdiction, or any such proceeding is
instituted against a Party and is not dismissed within ninety (90) business
days.
12.3 TERMINATION BY GSK.
12.3.1 If Phase Forward materially breaches its obligations
under this Agreement and such breach is not cured within thirty (30) days after
receipt of written notice from GSK, GSK shall have the option: (i) to initiate
the Dispute Resolution procedures set forth in Section 14.2, (ii) to terminate
this Agreement; or (iii) to declare a breach of this Agreement but not terminate
this Agreement and exercise any rights at law or in equity available to GSK.
GSK's decision to pursue option (iii) shall mean GSK shall retain the license
and other rights granted hereunder in respect of the Deliverables for the
balance of the term applicable thereto specified in the applicable Order
Schedule; provided however that (a) GSK shall deposit in escrow with a third
party escrow agent mutually acceptable to the Parties all applicable fees due
under this Agreement in respect of the retained license until such time as the
liability of the parties resulting from the breach is adjudicated, (b) GSK shall
contemporaneously therewith and as expeditiously as practicable, transfer the
clinical trials and other work being performed using the Deliverables provided
by Phase Forward hereunder to a replacement service provider; and (c) if Phase
Forward is found to be in material breach hereof by a court of competent
jurisdiction, the time period for calculation of GSK's damages resulting from
such breach will end on the date that GSK elects option (iii). Phase Forward
will promptly cooperate with and provide reasonable assistance to GSK in
connection with such transfers.
12.3.2 Except as may otherwise be set forth in an SOW, GSK
will have the right upon thirty (30) days prior written notice to terminate any
SOW for Services for any reason whatsoever or no reason, whether or not Phase
Forward is in default or in breach. An Order Schedule for Software may only be
terminated by GSK pursuant to Paragraphs 12.2 or 12.3.1 above.
12.4 TERMINATION BY PHASE FORWARD. If GSK breaches any obligation
under Paragraph 6.2 or Xxxxxxx 0, Xxxxx Xxxxxxx may terminate this Agreement by
written notice to GSK effective on receipt of such notice. If GSK breaches any
other material obligation under this Agreement, Phase Forward may terminate this
Agreement by written notice to GSK effective thirty (30) days after receipt of
such notice unless GSK cures such breach within such thirty (30) day period.
12.5 ACTIONS UPON TERMINATION. On termination of any license for
the Software granted hereunder, GSK shall make no further use of such Software
and shall immediately deliver to Phase Forward or destroy the original and all
copies of such Software and provide its notarized certificate to Phase Forward
that it has done so, except that upon Phase Forward's written consent (which
shall not be unreasonably withheld) GSK may retain a copy of such Software
solely for archival purposes. Termination of this Agreement or any License
hereunder shall not affect any rights accrued prior thereto. Termination of this
Agreement or a specific license for Software hereunder by either Party shall not
prevent either Party from pursuing any other legal or equitable remedies
available to it, including injunctive relief. In the event this Agreement or a
SOW is terminated by GSK pursuant to Paragraphs 12.2, 12.3.1 or 12.3.2, GSK
shall be entitled to a refund of all fees paid in advance for Support or
Services that will not be provided by Phase Forward hereunder following such
termination (except where such fees paid are specifically designated as
"non-refundable" in the applicable SOW, or where such fees are designated as
fees payable in the event GSK exercises an option for early termination of the
SOW).
12.6 SURVIVAL OF OBLIGATIONS. Sections 5, 6, 7, 8, 9 and 10 shall
survive any expiration or termination of this Agreement or any License granted
hereunder. In addition, any and all provisions, promises and warranties
contained herein which by their nature or effect are required or intended to be
observed, kept or performed after the termination or expiration of this
Agreement shall survive the termination or expiration of this Agreement and
remain binding upon and for the benefit of the Parties hereto.
Phase Forward SLSA 8.7
15
13. ESCROW AGREEMENT
13.1 ESCROW AGREEMENT. During the term of any license granted hereunder
GSK shall be listed as a beneficiary under Phase Forward's escrow agreement (the
"Escrow Agreement") with DSI Technology Escrow Services, Inc. ("DSI"), a firm
which provides software escrow services for Phase Forward. GSK shall pay Phase
Forward (or, at Phase Forward's direction, DSI) the portion of DSI's escrow fee
to Phase Forward applicable to GSK, such portion to be determined by DSI, for
each year of the term of GSK's coverage under the Escrow Agreement. Phase
Forward agrees that within 15 days after the Effective Date of this Agreement,
it will deposit in escrow with DSI pursuant to the Escrow Agreement: (i) the
source code of the Software (including the source code for all Major and Minor
Releases provided by Phase Forward to GSK as part of Support hereunder); (ii)
all existing technical manuals associated with such source code; (iii) existing
maintenance tools (such as, test programs and program specifications); (iv)
identification of the systems and programs required for use and/or support for
which Phase Forward neither possesses, nor has rights sufficient to allow
transfer or sublicense; (v) existing menu and support programs and subroutine
libraries in source and object code form; (vi) existing compilation procedures
in human and machine readable form; (vii) existing execution procedures in human
and machine readable form; (viii) existing end user documentation; and (ix)
existing system flow charts, programmers' notes, program flow charts, file
layouts, report layouts, and screen layouts, as such documentation is modified
and enhanced from time to time by Phase Forward and its' agents and contractors
(collectively "Commentary"). Such source code and Commentary shall be held in
accordance with the Escrow Agreement. Access to the escrowed source code and
Commentary by GSK shall be permitted only upon the occurrence of one of the
following events:
13.1.1 Any bankruptcy, reorganization or other case or proceeding
under any bankruptcy law, or any dissolution or liquidation proceedings are
commenced by or against Phase Forward and not resolved in Phase Forward's favor
within *;
13.1.2 Phase Forward applies for or consents to the appointment of a
trustee, receiver or other custodian, or makes a general assignment for the
benefit of creditors;
13.1.3 Phase Forward becomes insolvent or generally fails to pay
when, or admits in writing its inability to pay its debts as they become due.
For purposes of this Paragraph 13.1.3, the phrases "when due" and "become due"
shall mean that not more than * has elapsed due (including applicable cure
periods; after the date a payment obligation has accrued and is payable under
the terms of the applicable contract or agreement between Phase Forward and a
third party giving rise to such obligation;
13.1.4 Phase Forward or its successor ceases active operation of its
business or *, in accordance with the terms of this Agreement and Schedule 2
attached hereto; or
13.1.5 Phase Forward *.
13.2 USE OF SOURCE CODE. In the event GSK be granted access to the
escrowed source code for the Software pursuant to this Section 13, GSK shall
thereafter have the right to modify it to perform any functions which GSK deems
desirable during the license term, limited, however, to the GSK's internal use
only, together with the rights provided in license granted hereunder in respect
thereof, and the source code as so modified shall, nonetheless, remain subject
to the same restrictions on use, reproduction and disclosure as are contained in
this Agreement with respect to the Software itself. GSK is otherwise prohibited
from disclosing, marketing or otherwise reselling or distributing such source
code, whether modified or not modified.
13.3 NO TERMINATION. The Source Code Escrow Agreement, including any
modification, supplement, or replacement thereof agreed to by the Parties, shall
be deemed to be a "supplementary agreement" as contemplated in Section
365(n)(1)(B) of the Bankruptcy Code, 11 U.S.C. (the "Code"). In any bankruptcy
action by or against Phase Forward, failure by GSK to assert its rights to
"retain its benefits" to the intellectual property encompassed by the Software,
pursuant to Paragraph 365(n)(1)(B) of the Code, under an executory contract
rejected by the trustee in bankruptcy, shall not be construed by the courts as a
termination of the contract by GSK under Paragraph 365(n)(1)(A) of the Code.
Phase Forward SLSA 8.7
16
13.4 DISPUTES INVOLVING RELEASE OF SOURCE CODE. If any dispute arises
concerning the release of the Source Code to GSK by the Escrow Agent, the Escrow
Agent will notify Phase Forward and GSK in writing that it has received written
notice from Phase Forward disputing the release of the Source Code. Within five
(5) business days from this notification executives from GSK and Phase Forward,
each of which will hold at least vice-president or equivalent status within
their respective organizations, shall meet to resolve the dispute in good faith.
If such a meeting does not resolve the dispute, within ten (10) business days of
such meeting, unless otherwise agreed in writing, the Parties will attempt to
resolve the dispute by sending the matter to non-binding mediation by a mutually
agreed upon third parry. If no resolution is reached within a further fifteen
(15) business days, the parties agree that such dispute will be settled by
arbitration conducted on an expedited basis before three (3) arbitrators,
selected in accordance with the rules of the American Arbitration Association
("AAA"). Such arbitrators shall be knowledgeable in the business of software
development and information technology. Arbitration is to take place in
Philadelphia County, Pennsylvania, in accordance with the rules for commercial
arbitration of the AAA. In the event of a conflict between the AAA rules and
this Paragraph 13.4, then this Paragraph 13.4 shall prevail. Depositions may be
taken and discovery obtained in any such arbitration proceedings in accordance
with New York law. New York law shall be applied by the arbitrators for both
evidence and substantive law questions during arbitration. The arbitrators will
be instructed to render a decision on the limited question of whether or not a
Release Event has occurred within fifteen (15) days after the end of the
hearing. Judgment upon the award of the arbitrators, enforced in accordance with
Pennsylvania law, shall be final and binding upon the Parties and may be entered
in any court having jurisdiction. The parties acknowledge and stipulate that
this is a commercial contract and that any award, judgment or order, interim or
final, shall be enforceable as a commercial award, judgment or order wherever
such enforcement is sought. The arbitrators shall give effect to the applicable
statute of limitation in determining any claim, and any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrators. Section 7
of this Agreement entitled "Confidentiality" shall apply to the arbitration
proceeding and all evidence taken. GSK and Phase Forward jointly agree to
reimburse Escrow Agent for any and all costs incurred as a result of any
Arbitration including reasonable attorney's fees.
14. GENERAL
14.1 GSK'S REQUIREMENTS. Software programs for business use are inherently
complex, and GSK is solely responsible for the evaluation of its software
requirements, selection of software to satisfy those requirements, and
verification of resulting data.
14.2 DISPUTE RESOLUTION. Any dispute, controversy or claim arising out of
or relating to any provision of this Agreement shall be referred to upper
management of the Parties for good faith discussion and resolution. The Parties
agree that pending resolution of a dispute Phase Forward shall continue to
perform its obligations under this Agreement and, except as provided in
Xxxxxxxxx 00.0.0, XXX shall continue to make payment to Phase Forward for any
undisputed amounts. If any dispute, controversy or claim cannot be resolved by
such good faith discussion between the Parties, then each shall have all
remedies available to them at law or in equity.
14.3 ASSIGNMENT. Subject to the Paragraph 4.8 above, neither Party may
assign this Agreement in whole or in part without the prior written approval of
the other party hereto. Such approval will not be unreasonably withheld. Any
such attempted assignment without prior written consent shall be null and void.
Notwithstanding the foregoing, either Party may assign its right, title and
interest in this Agreement to any corporation or entity with which it may merge
or consolidate or which acquires substantially all of the business and assets of
such party to which this Agreement and the Software relates. This Agreement
shall be binding upon Phase Forward's or GSK's successors or permitted assigns.
In the event that Phase Forward transfers all or a portion of its business,
assigns its right, title and interest in this Agreement to another party, or
merges or consolidates with another party, the terms and conditions of any
support or maintenance set forth in this Agreement and any Order Schedule
applicable to the Software may not be modified for a period of three (3) years
thereafter, except for increases in Renewal Term License Fees permitted under
the terms of this Agreement or any Order Schedule.
14.4 RELATIONSHIP OF THE PARTIES. Phase Forward and GSK are independent
contractors, and neither this Agreement nor the Deliverables to be provided
hereunder shall for any purpose whatsoever (i) create an employer-employee
relationship between Phase Forward or its employees or subcontractors and GSK or
(ii) make Phase Forward an agent, joint venturer or business partner of GSK.
Phase Forward's personnel providing Deliverables under this Agreement shall at
all times be under Phase Forward's exclusive directions and control.
Notwithstanding anything to the contrary herein, GSK shall have no right to
control the manner, means or method by which Phase Forward performs any Services
hereunder. Neither
Phase Forward SLSA 8.7
17
party shall make any contracts, warranties or representations or assume or
create any other obligations, express or implied, in the other party's name or
on its behalf.
14.5 NON-SOLICITATION. Neither party shall, directly or indirectly,
solicit for employment or otherwise use any employee of the other party who has
been involved in the performance of this Agreement without the prior written
consent of the other party. The provisions of this Paragraph 14.5 shall survive
the termination of this Agreement for a period of twelve (12) months.
14.6 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and shall be effective upon delivery to the address of the
recipient party as follows:
IF TO GSK: GlaxoSmithKline Services Unlimited
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx, XX0 0XX
Xxxxxx Xxxxxxx
Attention:______________
WITH A COPIES TO: Xxxxxx Xxxxxxxx, Esquire
Vice President
R&D Legal Operations
0000 Xxxxxxxxxxx Xxxx
XX0000 Xxxx xx Xxxxxxx, XX 00000
Tel: 000 000 0000
Fax: 000 000 0000
General Counsel
GlaxoSmithKline
Xxx Xxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000
IF TO PHASE FORWARD: Phase Forward Incorporated
Attn: Vice President, Finance
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000)0000000
WITH A COPY TO: Phase Forward Incorporated
Attn: Vice President and General Counsel
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Invoices and routine communications may be sent by first-class mail, postage
prepaid, to such locations or person as either party may designate in writing
from time to time. Either party may change its address for the receipt of
notices, requests or other communications hereunder by written notice duly given
to the other party. Each party agrees to acknowledge in writing receipt of any
notice upon delivery.
14.7 FORCE MAJEURE. Neither Party shall be liable to the other Party for
any default or delay in the performance of its obligations under this Agreement
if, and to the extent, such default or delay is caused, directly or indirectly,
by fire, flood, earthquake, or other elements of nature or acts of God, riots,
terrorism, war, civil disorders, or any other cause beyond
Phase Forward SLSA 8.7
18
its reasonable control; provided, however that the non-performing Party is
without fault in causing such default or delay, and such default or delay could
not have been prevented by reasonable precautions. In the event of such Force
Majeure, the non-performing Party shall be excused from further performance or
observance of the obligations so affected for as long as such circumstances
prevail and such Party continues to use commercially reasonable efforts to
recommence performance or observance without delay. Any Party so delayed in its
performance shall immediately notify the party to whom performance is due by
telephone, confirm the same in writing within twenty-four (24) hours of the
inception of such delay, and describe at a reasonable level of detail the
circumstances causing such delay.
During the period that performance by one of the Parties of its obligations
under this Agreement has been suspended by reason of a Force Majeure, the other
party may likewise suspend the performance of all or part of its obligations
hereunder to the extent that such suspension is commercially reasonable. If
either Party's performance under this Agreement is, or is likely to be,
suspended pursuant to this Paragraph 14.7 for longer than thirty (30) days, the
other Party may, by written notice given to such Party during the suspension,
terminate this Agreement, in whole or in part, effective as of a date specified
in the notice. Termination pursuant to this Paragraph 14.7 shall relieve GSK of
any obligation to pay fees or other amounts in respect of Support, Deliverables
or Services to be provided after the effective date of termination, and entitle
GSK to receive a refund of pre-paid fees or other amounts paid in advance for
Support, in respect of such Deliverables or Services.
14.8 SEVERABILITY. In the event that any provision of this Agreement is
for any reason void or unenforceable in any respect, such provision shall be
without effect to the extent of the voidness or unenforceability without
affecting such provision in any other respect and without affecting any other
provision.
14.9 WAIVER. No delay or failure by either Party to detect, protest or
remedy the failure of the other Party to perform any obligation under the
Agreement will constitute a waiver of such other Party's obligations. No waiver
of any provision of this Agreement or of any rights or obligations of either
arty hereunder will be effective unless in writing and signed by an authorized
officer of the waiving party.
14.10 GOVERNING LAW; GOVERNMENT REGULATIONS. This Agreement shall be
governed by, construed and enforced in accordance with the internal laws of the
State of New York exclusive of its provisions relating to choice or conflicts of
laws. The Parties agree that the provisions of the Uniform Commercial and the
United Nations Convention for the International Sale of Goods shall not apply to
this Agreement. Phase Forward shall comply with all applicable laws and
regulations of any government, foreign or domestic, and all treaties,
conventions and international agreements recognized thereby respecting the
performance of Phase Forward's obligations in connection with or arising out of
this Agreement, including, but not limited to those relating to privacy of data
and the export of data and information and data across national borders. Neither
Party shall, either directly or indirectly, export or re-export the data and/or
information without first complying with applicable foreign governmental laws
and regulations and United States Export Control Laws and Regulations and
obtaining the necessary export and/or re-export licenses. Each Party agrees to
indemnify and hold the other and its Affiliates harmless from and against any
and all liabilities or claims including, but not limited to, interest assessed
or penalty and reasonable attorneys fees incurred, arising from its failure to
comply with such laws and regulations. Notwithstanding anything herein or in any
SOW to the contrary, GSK acknowledges that, in relation to requirements
pertaining to the privacy of medical records and other personally identifiable
information, Phase Forward acts as a processor of data ("data processor") and
that notwithstanding the generality of the foregoing obligations, GSK is
responsible for obtaining all data subject consents and compliance therewith.
14.11 SECTION HEADINGS. The section and paragraph headings in this
Agreement are for convenience only and are in no way to be construed as part of
this Agreement nor as a limitation of the scope of the particular sections to
which they refer.
14.12 REMEDIES CUMULATIVE. Except as expressly provided to the contrary
elsewhere in this Agreement, all rights and remedies provided for in this
Agreement are cumulative and in addition to, and not in lieu of, any other
rights or remedies available to either party at law, in equity or otherwise.
14.13 CONFLICT BETWEEN DOCUMENTS. In the event of any conflict or
inconsistency between the provisions of this Agreement and the provisions of any
Exhibit or Schedule annexed hereto, the provisions of this Agreement shall
prevail and govern its interpretation and construction except where expressly
stated otherwise. A conflict shall mean that the documents may not be read
consistently on the same topic. Notwithstanding the foregoing, in the event of a
conflict between the
Phase Forward SLSA 8.7
19
provisions of Paragraphs 2, 3, 4(1), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.3, 14.4,
14.7, 14.9 and 14.10 of this Agreement (collectively, the "Prevailing Sections")
and the provisions of any Exhibit or Schedule hereto, the provisions of the
applicable Prevailing Section shall control. Any modification or addition to a
Prevailing Section shall only be effective if it is contained in a writing that
has (i) specifically been designated as an amendment to this Agreement, and (ii)
been executed by a corporate officer of each of the Parties.
14.14 QUARTERLY MEETINGS. Executives from each party will meet via
teleconference (unless the Parties agree to meet via videoconference or in
person instead) quarterly to discuss strategic issues and review and discuss the
relationship of the Parties with the aim of maximizing the success of both
Parties. The agenda for these meetings will include the following:
- Product and service responses to technology and market changes.
- Product and service quality.
- Product and service performance.
During these meetings, GSK may recommend that Phase Forward make improvements to
a product or service which are not customized for GSK. Phase Forward will
consider such recommendation in good faith and may, in its sole discretion and
without any obligation to GSK, accept or reject such recommendation.
14.15 ENTIRE AGREEMENT; MODIFICATIONS. In the event GSK elects to accept
the Software specified in the License Order attached hereto as Schedule 1 by
paying the license fees dues in respect thereof as provided under clause (a) of
Section 3 of such Schedule, the parties understand and agree that such
acceptance by GSK will also have the following effects:
14.15.1 The Master Technology Services Agreement dated July 26,
1999, the Master Research Agreement dated March 1, 1999 and the Services
Agreement dated June 28, 2002 between the Parties or their predecessors or
affiliates will thereupon be terminated;
14.15.2. The Clinical Services Agreement, dated March 1, 2003,
including the Schedules for Torch, Study Xxxxxxxx XXX 00000, signed on the 26th
June 2003; and Study Authorization Agreement No. GSK CS 102 will remain in full
force and effect in accordance with their terms;
14.15.3 The Information Technology Agreement dated March 25, 1999
(the "IT Agreement") will remain in full force and effect, but only with regard
to the following Amendments, Order Schedules or Statements of Work entered into
by the Parties pursuant thereto: (i) Amendment dated December 11, 2001; (ii)
Amendment dated December 18, 2001; (iii) Maintenance Order Schedule dated
February 20, 2003; (iv) Statement of Work No. GSK-CS-109 SOW 15, dated June 26,
2003; and (v) any Statement of Work executed by the parties pursuant to the IT
Agreement on or after May 20, 2004. The parties acknowledge and agree that the
Amendment to the IT Agreement dated October 21, 2002 and any other Amendment,
Order Schedule or Statement of Work other than those specified in this Paragraph
14.15.3 shall be terminated upon Acceptance of the Software pursuant to Schedule
1 of this Agreement as aforesaid.
Other than as set forth herein, this Agreement dated May 1, 2004 and the
Exhibits and Schedules attached hereto contain the entire agreement between the
Parties relating to the matters covered by it, superseding all other oral or
written representations, understandings, proposals or other communications
between the Parties (including the RFP hereinabove noted and Phase Forward's
response thereto). This Agreement may be modified only by a written instrument
signed by an authorized representative of each party.
---------------------
(1) An exemption from Section 4's requirement for Acceptance Testing of Software
applicable to certain Software specified in an Order Schedule (or provisions in
an Order Schedule for different time periods for such Acceptance Testing than
the time periods specified in Section 4) shall not be deemed to be a conflict or
inconsistency between the provisions of such Order Schedule and the provisions
of this Agreement (i.e., the provisions of Section 4) nor shall such exemption
or different time periods require a written Amendment to this Agreement to be
effective, the execution of such Order Schedule by the Parties being sufficient.
Phase Forward SLSA 8.7
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year first
set forth above.
PLEASE FORWARD INCORPORATED GLAXOSMITHKLINE SERVICES UNLIMITED
BY: /s/ XXXX X. XXXXXXXXXX BY: /s/ [ILLEGIBLE]
--------------------------------------- ------------------------------
NAME (PRINT OR TYPE) XXXX X. XXXXXXXXXX
TITLE: Senior Vice President and AUTHORIZED SIGNATURE
Chief Financial Officer NAME (PRINT OR TYPE) [ILLEGIBLE]
Phase Forward Incorporated TITLE: Chief Executive Officer
DATE: July 23,2004
Phase Forward SLSA 8.5
21
EXHIBIT A
SAMPLE LICENSE ORDER FORM
PHASE-FORWARD. GLAXOSMITHKLINE SERVICES UNLIMITED, a member of the
GlaxoSmithKline group
000 Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX,
000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000, X.X.X.
Tel.(000) 000-0000
Fax.(000) 000-0000
THIS LICENSE ORDER SCHEDULE, dated and entered into as of this day of , 2000
(the "Order Effective Date"). is made by and between GLAXOSMITHKLINE SERVICES
UNLIMITED and Phase Forward Incorporated, pursuant to and subject to the terms
and conditions of the Software License and Services Agreement, dated May 1, 2004
(the "Agreement") between the parties.
1. SOFTWARE: 2. XXX.XX.(IF APPLICABLE):___________
LICENSE
SOFTWARE AND VERSION TYPE QUANTITY UNIT PRICE TOTAL
-------------------- ------- -------- ----------- ------
-------------------- ------- -------- ----------- ------
-------------------- ------- -------- ----------- ------
-------------------- ------- -------- ----------- ------
[List Modules]
-------------------- ------- -------- ----------- ------
TOTAL:[$//]
-------------------- ------- -------- ----------- ------
2. INITIAL TERM OF LICENSE(S): [XX] years from [ORDER EFFECTIVE DATE] (such
date, "License Start").
3. RENEWAL(S): After the Initial Term, each license will be automatically
renewed for successive one-year terms (each, a "Renewal Term") at Phase
Forward's then-current list pricing unless Licensee provides written
notice to Phase Forward at least thirty (30) days prior to the beginning
of any Renewal Term that Licensee does not wish such license to be
renewed.
4. PAYMENT SCHEDULE: [AMOUNT = total price / (number of years -1)] due and
payable within 30 days of the License Start. Balance due in equal
installments of [AMOUNT = total price /number of years - 1)] on each
anniversary of the License Start over the first [number of years - 1 ]
years of the license term. Renewal fees are payable in advance at the
start of each Renewal Term, if any.
5. SUPPORT SERVICES: All licenses include Upgrades (as defined in the
Software License Agreement) and support services in accordance with
Paragraph 4.2 of the Agreement and Schedule 2 attached thereto.
6. ACCEPTANCE TESTING PROCEDURES AND CRITERIA (IF ANY) :
7. ADDITIONAL LICENSE TERMS OR RESTRICTIONS (e.g., limitations on use,
installation sites): None. [MODIFY AS APPROPRIATE]
8. CONTACTS:
XXXX TO ADDRESS: SHIP TO ADDRESS:
--------------- ---------------
--------------- ---------------
--------------- ---------------
--------------- ---------------
Attention: Attention:
--------------- ---------------
Tel.: Tel.:
--------------- ---------------
e-mail: e-mail:
--------------- ---------------
AGREED AND ACCEPTED:
Phase Forward SLSA 8.7
22
PHASE FORWARD INCORPORATED: BY: GLAXOSMITHKLINE SERVICES UNLIMITED
BY:_________________________ BY:_____________________________
TYPED NAME:_________________ TYPED NAME:_____________________
TITLE:______________________ TITLE:__________________________
Phase Forward SLSA 8.7
23
EXHIBIT B
GSK'S CONTRACTOR TRAVEL AND EXPENSE REIMBURSEMENT GUIDELINES
1. GSK will, to the extent provided for under its written agreement with
Contractor, reimburse Contractor for out-of-pocket expenses actually and
reasonably incurred by Contractor's personnel in connection with
GSK-authorized travel and for lodging and meals while away from home
performing services directly on behalf of GSK. Payment for time spent by
Contractor's personnel on GSK's business shall only be made by GSK in
accordance with the rates and other terms and conditions of Contractor's
written agreement with GSK and these Guidelines.
2. All Contractor expense for which reimbursement is sought must be approved
in advance by GSK.
3. All expenses over $50 must be accompanied by a written receipt and an
explanation as to why the expenses were incurred.
4. Each invoice for time spent by Contractor's personnel on GSK's business
shall be accompanied by a detailed statement showing (i) the applicable
rate, (ii) the time spent since the last invoice for Contractor's
personnel's time, and (iii) such other details as GSK may reasonably
require in order to identify the time spent to accomplish services under
Contractor's agreement with GSK.
5. Reimbursement of Contractor's expenses shall be limited to:
(a) Air and train travel only by "coach" class or actual fare booked
through selected GSK Travel Agency, whichever is less;
(b) Lodging at hotels that are generally considered medium cost (i.e.,
Holiday Inn, DoubleTree etc.);
(c) When rental cars are required, economy or compact class rental
automobiles are to be used;
(d) Meals at restaurants are generally considered medium priced, taking
into account that no more than $50 will be allowed for any day that
a Contractor's staff member is required to perform work on behalf of
GSK when an overnight stay is required; and
(e) Any other expense specifically authorized under Contractor's
agreement with GSK or expressly agreed to in writing by GSK's
Representative.
6. Expenses incurred in excess of the above, or otherwise not permitted
hereunder shall be borne by Contractor, unless authorized by GSK in
writing. Expenses related to general Contractor overhead and back office
work, such as administrative efforts, general management expenses and any
other expenses not directly related to GSK's work, will not be
reimbursable by GSK.
7. Whenever possible, reservations for travel and hotel accommodations should
be made in advance through GSK's travel agency of record as directed by
GSK, using GSK's name, to take advantage of GSK discounts and rates.
Phase Forward SLSA 8.7
EXHIBIT C
FORM STATEMENT OF WORK
SOW NUMBER: GSK-XX-XXX
1.0 INTRODUCTION
THIS STATEMENT OF WORK ("SOW") dated and entered into as of this _______ day of
_________________, __________ (the "Effective Date"), is made by and between
GLAXOSMITHKLINE SERVICES UNLIMITED, a member of the GlaxoSmithKline group 000
Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxxx ("GSK") and Phase Forward
Incorporated, a Delaware corporation with offices located at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("Phase Forward") pursuant to and subject to the
terms and conditions of the Software License and Services Agreement, dated May
1, 2004 (the "Agreement") by and between the parties. This SOW is entered into
pursuant to and is governed by the Agreement.
2.0 PROJECT SCOPE
2.1. THE SCOPE OF THE PROJECT INCLUDES:
Any changes to the scope of this Statement of Work will be by mutual
written agreement and may result in additional time and cost being added
to the Project. A sample Change Order form is attached to this document
for reference.
2.2. DELIVERABLES
2.3. ASSUMPTIONS
This Work Order is based on the following assumptions.
3.0 PROJECT DATES
The expected duration of the project is [ ]. Any changes or additional
details are to be mutually agreed in writing.
The Target Start Date for the program is approximately [ ].
The Estimated Target Completion Date is approximately [ ].
Timing is approximate and Phase Forward will commit staff to the program upon
signature of the Statement of Work.
The success of this project will require close cooperation between the GSK and
Phase Forward teams to ensure that skills and knowledge are leveraged to meet
the goals of the project.
Phase Forward SLSA 8.7
Page 1
4.0 RESPONSIBILITIES
5.0 PROJECT STAFFING
Phase Forward Consulting Services provides highly skilled and experienced
professionals to staff each project.
Phase Forward follows a structured approach to project management and the
individual designated by Phase Forward as Program Manager is the primary contact
for this engagement.
6.0 PRICING
Travel and related expenses incurred by Phase Forward staff in the delivery of
services hereunder are additional and will be billed as incurred without markup
in accordance with the terms of the Agreement and GSK's Contractor Travel and
Expense Reimbursement Guidelines, attached thereto as Exhibit B.
7.0 DELIVERABLES
8.0 ACCEPTING TESTING PROCEDURES AND CRITERIA
9.0 PAYMENT TERMS
Amounts due Phase Forward in respect of the Services and Deliverables specified
hereunder will be payable in accordance with the provisions of the Agreement.
10.0 CONTACT INFORMATION
If there are any questions about this document, please contact either of the
following:
PHASE FORWARD INCORPORATED
Key contacts for GSK are:
GLAXOSMITHKLINE,
11.0 APPROVALS
Phase Forward and GlaxoSmithKline acknowledge and agree that each has read this
Statement of Work and agrees be bound by its terms and conditions.
AGREED AND ACCEPTED:
Phase Forward SLSA 8.7
Page 2
PHASE FORWARD INCORPORATED: GLAXOSMITHKLINE SERVICES UNLIMITED
BY:_______________________________
BY:_______________________________ TYPED NAME:_______________________
TYPED NAME:______________________ TITLE:____________________________
TITLE:____________________________
Phase Forward SLSA 8.7
Page 3
SAMPLE CHANGE ORDER FORM
This Change Order is entered into pursuant to and is governed by the terms of
the Statement of Work No. GSK-CS-XXX between Phase Forward Incorporated
GLAXOSMITHKLINE SERVICES UNLIMITED, The effective date of this Change Order will
be the date of last signature ("Effective Date").
CLIENT NAME: GLAXOSMITHKLINE, DATE CHANGE REQUESTED:
CHANGE ORDER NUMBER: ??? REQUESTOR:
SOW NUMBER: GSK-CS-113
PROGRAM: ???
CLIENT REQUEST:
[ ] Yes [ ] No
DESCRIPTIONS OF CHANGE TO SERVICES:
ESTIMATED IMPACT AND FEES FOR CHANGE TO SERVICES:
ADDITIONAL TERMS AND CONDITIONS:
ACCEPTED FOR GLAXOSMITHKLINE ACCEPTED FOR PHASE FORWARD
SERVICES UNLIMITED BY: INCORPORATED BY:
SIGNATURE SIGNATURE
NAME NAME
TITLE TITLE
DATE DATE
Phase Forward SLSA 8.7
Page 4
EXHIBIT D
EXTERNAL SYSTEMS SECURITY REQUIREMENTS
*
Phase Forward SLSA 8.7
Page 5
EXHIBIT E
WEB HOSTING GUIDELINES
*
Phase Forward SLSA 8.7
EXHIBIT F
RECORDS RETENTION POLICY
*
Phase Forward SLSA 8.7
EXHIBIT F-1
GSK GLOBAL RECORDS RETENTION SCHEDULE
*
Phase Forward SLSA 8.7
SCHEDULE 1
INITIAL LICENSE ORDER SCHEDULE
PHASE-FORWARD LICENSE ORDER SCHEDULE (VERSION 1.7 - JANUARY 8, 2004)
000 Xxxxxx Xxxxxx GLAXOSMITHKLINE SERVICES UNLIMITED, a member of the
Xxxxxxx, XX 00000, X.X.X. GlaxoSmithKline group
Tel. (000)000-0000 000 Great West Road, Brentford, Middlesex TW8 9GS,
Fax. (000)000-0000 England
THIS LICENSE ORDER SCHEDULE, dated and entered into as of this 1st day of May,
2004 (the "Order Effective Date"), is made by and between GLAXOSMITHKLINE
SERVICES UNLIMITED and Phase Forward Incorporated, pursuant to and subject to
the terms and conditions of the Software License and Services Agreement, dated
May 1, 2004 (the "Agreement") between the parties.
PHASE FORWARD INCORPORATED ACCEPTED AND AGREED BY LICENSEE:
Signature: /s/ Xxxx X. Xxxxxxxxxx Signature: /s/ [ILLEGIBLE]
------------------------ -------------------------
Name(Type/print): Xxxx X. Xxxxxxxxxx Name(Type/print): [ILLEGIBLE]
Title: Senior Vice President and Title: [ILLEGIBLE]
Chief Financial Officer
Phase Forward Incorporated
Date: July 23, 2004
1. DATE OF AGREEMENT BETWEEN THE PARTIES:
2. SOFTWARE:
SOFTWARE AND VERSION LICENCE TYPE AND QUANTITY
InForm(TM) *
InForm Architect(TM) *
CIS *
CRF Submit *
Clintrial(TM)* *
Design* *
LabLoader* *
Retrieve* *
Enter* *
Manage* *
----------
TOTAL FEES (pound) *
----------
SOFTWARE AND VERSION LICENCE TYPE AND QUANTITY
Resolve *
-------
TOTAL FEES (pound) *
-------
Phase Forward SLSA 8.7
NAMED USER: The maximum number of end-user computers authorized to access the
Software at any given time, subject to a limit of one end-user per computer at
any given time.
UNLIMITED USE: No limit on the number of Servers on which the Software may be
installed or on the number of end-users accessing the Software.
3. ACCEPTANCE PERIOD. The parties agree that the provisions in this Section 3
of the License Order Schedule will supercede and replace the provisions of
Paragraph 4.1.2 of the Agreement. For a period up to July 31, 2004 (the
"Effective Date"), Licensee may use the InForm Software in a
non-production environment for its internal use. By July 31, 2004,
Licensee shall either (a) pay Phase Forward the License Fees set forth in
Section 6 below, or (b) return all copies of all of the Software supplied
pursuant hereto in its possession to Phase Forward and delete all copies
of the same stored in any non-tangible form and certify to Phase Forward
that it has done the same. In the event Licensee elects option (b) above,
this License Order Schedule shall terminate upon the specified return and
certification by GSK and the actions specified in Paragraph 14.15 shall
not take effect.
4. INITIAL TERM OF LICENSE(s): Provided Licensee Accepts the Software as set
forth above, the term of such Software is as follows:
a. All software marked as "Unlimited" will have an Initial Term
commencing on the * and ending on *.
b. All software marked with an "*" may only be used by Licensee and may
not be used by any of its Affiliates.
c. Licensee will have the right to obtain up to 1395 1-year licenses of
the Resolve module to the Clintrial software. Because, each Resolve
license lasts only one year (i.e., July 1 to June 30), by 1 July of
each year Licensee will provide Phase Forward with a signed writing
substantially in the form attached as an Addendum hereto referencing
this License Order Schedule showing its requirements for the next
year of the Initial Term for licenses with regard to the Resolve
module. Each year, Licensee is free to purchase as many or as few
licenses of the Resolve module as it deems appropriate; provided,
however, that the total number of licenses used during the Initial
Term may not exceed 1395. If Licensee does not provide the annual
signed writing as outlined above, then the total number of Resolve
named users Licensee be able to use will be the same amount as it
used in the previous year.
5. RENEWAL(s): After the Initial Term, each license will be automatically
renewed for successive renewal terms of one year each (each, a "Renewal
Term") at Phase Forward's then-current list pricing unless Licensee
provides written notice to Phase Forward at least thirty (30) days prior
to the beginning of any Renewal Term that Licensee does not wish such
license to be renewed. Notwithstanding the foregoing,
a. If Licensee provides notice to Phase Forward thirty (30) days prior
to the end of the Initial Term of its desire to renew the license
for all of the Software for an additional * period, the license
fees due in each year of any such * renewal period shall be *.
b. If Licensee provides notice to Phase Forward thirty (30) days prior
to the end of the Initial Term that it does not intend to renew this
License Order Schedule but does desire to enter into a *, then this
Agreement will terminate with regard to * and the parties will enter
into the * that will include the following terms:
i. *
ii. *
Phase Forward SLSA 8.7
iii. *
iv. *
v. *
vi. *
c. If Licensee provides notice to Phase Forward thirty (30) days prior
to the end of the Initial Term of its desire to renew any Clintrial,
Resolve or Labloader licenses (except as set forth in Section (a))
for up to a * term, then the fees * for that Renewal Term will be:
*
Any * above the * for that Renewal Term will be priced * as follows:
*
6. FEES AND PAYMENT SCHEDULE: Payment terms are as set forth below. Renewal
fees are payable in advance at the start of each Renewal Term, if any.
SECTION 2 FEES
* (pound)*
* (pound)*
* (pound)*
* (pound)*
* (pound)*
* *
7. SUPPORT SERVICES: All licenses include Upgrades (as defined in the
Software License and Support Agreement) and support services in accordance
with Paragraph 4.2 of the Agreement and Schedule 2 attached thereto.
8. CONTACTS:
XXXX TO ADDRESS: SHIP TO ADDRESS:
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
Phase Forward SLSA 8.7
Attention: Attention:
Tel: _______________________________ Tel.:_______________________
e-mail:_____________________________ e-mail:_____________________
Phase Forward SLSA 8.7
RESOLVE SOFTWARE ADDENDUM
PHASE-FORWARD
000 Xxxxxx Xxxxxx GLAXOSMITHKLINE SERVICES
Xxxxxxx, XX 00000, X.X.X. UNLIMITED, a member of the
Tel.(000)000-0000 GlaxoSmithKline group
Fax.(000)000-0000
000 Xxxxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx XX0 0XX, Xxxxxxx
THIS RESOLVE SOFTWARE ADDENDUM is entered into pursuant to the Initial License
Order Schedule dated _________ between the parties.
PHASE FORWARD INCORPORATED ACCEPTED AND AGREED BY LICENSEE:
Signature: /s/ Xxxx X. Xxxxxxxxxx Signature: /s/ X. Xxxxxx
------------------------ -----------------------
Name(Type/print): Senior Vice President and Name(Type/print): X. XXXXXX
Title: Chief Financial Officer Title: VP DCS II
Phase Forward Incorporated Date: 12 July 2004.
Date: July 23, 2004
Contract Year (Partial): *
Number of Seats to be Used During Term: *
Remaining Seats Under the License Order Schedule: *
Phase Forward SLSA 8.7
SCHEDULE 2
LICENSEE SUPPORT SERVICES POLICY
AND
SERVICE LEVEL GUIDE
Phase Forward SLSA 8.7
PHASE-FORWARD LICENSEE SUPPORT SERVICES POLICY
000 Xxxxxx Xxxxxx (VERSION 1.5 - MARCH 19, 2004)
Xxxxxxx, XX 00000, X.X.X.
Tel.(000)000-0000
Fax.(000)000-0000
PHASE FORWARD PROVIDES SUPPORT SERVICES AS DEFINED HEREIN.
1. DEFINITIONS
1.1 "CUSTOM SUPPORT SERVICES" are not included in Standard Support Services and
are available at additional cost to meet the needs of specific Licensee
situations. These may include (a) a dedicated support team, (b) support services
in French, Spanish, German, Italian or other languages, (c) 24x7 support hours
and (d) dedicated developer days which provide unique support services at Phase
Forward facilities or at the Licensee site, Additionally, Phase Forward can
develop other support options to meet client specified needs.
1.2 "LICENSEE" refers to Phase Forward customers who license Software products
from Phase Forward under a Software License Agreement.
1.3 "SOFTWARE" refers to software products licensed to Phase Forward Licensees
under its Software License Agreements.
1.4 "STANDARD SUPPORT HOURS" are Monday through Friday, 3:00 AM to 8:00 PM US
Eastern time (08:00 to 01:00 GMT), except Phase Forward holidays.
1.5 "STANDARD SUPPORT SERVICES" include, in addition to provision of Upgrades in
accordance with the applicable Software License Agreement, (a) reasonable
telephone and e-mail technical support in English and (b) correction of errors
to keep the Software in conformance with its documentation. Support Services
under this Policy do not include customer support related to Phase Forward's In
Phase or consulting Services.
1.6 "UPGRADES" include releases, modifications, refinements and updates to, and
new Versions of, Software, including without limitation Maintenance Releases
(service packs) and Hot Fixes (critical fixes) that are provided to Phase
Forward's general client base at no additional charge, but do not include
Software marketed by Phase Forward as a separate product or as a module for
which additional fees are generally charged.
1.7 "VERSION" is the generally available release of a Software product which is
either a Major Release (designated by the number which Is immediately to the
left of the decimal point in a Software version number) or a Minor Release
(designated by the number which is immediately to the right of the decimal point
in a Software version number), (but no other Upgrades, such as Maintenance
Releases or Hot Fixes will count as Versions).
2. SUPPORT POLICY
2.1 Phase Forward provides Standard Support Services to Licensees of its
Software products who are entitled by agreement to receive such support for (i)
its most current Version of a Software product (including all Upgrades for such
Version) and, (ii) subject to the following sentence, the two immediately
preceding Versions of such Software product (the oldest of such Versions is
referred to herein as the "Retiring Version"). Notwithstanding anything in this
Policy or in any Standard Software License Agreement, Phase Forward will cease
to provide Support services for the Retiring Version 12 months after the
commercial release date of its most current Version of such Software product.
2.2 While the Agreement is in effect and provided Licensee is current on an
payments for the particular software for which support is sought, Phase Forward
will provide the standard support services hereunder for each Version of such
Software Licensee is using under one or more of its licenses, for at least *
following general availability of such Version. Upon expiration of * from the
general availability of a particular Version or * (whichever is later), if
Licensee is still using such Version under one or more of its licenses to such
Software, then Phase Forward will provide only telephone support for such
Version, which support will include responding to questions, providing
information about known workarounds, and providing information about known bugs
that are fixed in later Upgrades or Versions (but will not include creating any
additional Upgrades for such retired Version).
2.3 Where the Licensee does not upgrade to a new Version of the Software, Phase
Forward shall continue to provide Support Services as set forth in Sections 2.1
and 2.2. Licensee acknowledges and agrees that Phase Forward's obligation to
correct errors in the Software will be fulfilled upon release of an Upgrade that
fixes the error, even if Licensee does not install the Upgrade within a
reasonable period of time.
2.4 If Licensee decides to postpone implementation of a new Version, Licensee
reserves the right to later install such new Version of the Software at any
time.
2.5 Notwithstanding anything herein to the contrary, Licensee must implement
those Upgrades which are required in order to prevent an infringement of a third
party's Intellectual Property Rights provided that Phase
Phase Forward SLSA 8.7
Forward has made Licensee aware of the possibility of such infringement by
written notice to Licensee.
2.6 Licensee may contract with Phase Forward separately for Custom Support
Services for an additional charge.
3. SERVICE RESPONSIBILITIES
3.1 Provided Licensee is in compliance with the applicable Software License
Agreement (including timely payment of fees), Phase Forward will provide
Licensee during Standard Support Hours the Standard Support Services described
in this Policy. Standard Support Services will be performed in a timely and
professional manner by qualified support technicians familiar with each Software
product and its operation.
3.2 If Licensee desires Standard Support Services, an authorized caller who is
fully trained on the use of the Software will contact Phase Forward support by
telephone or e-mail. Phase Forward's duly qualified personnel will respond to
Licensee's initial telephone call or e-mail with offsite telephone or e-mail
consultation, assistance, and advice relating to support of Software within * of
Licensee's first call or e-mail for Standard Support Services or, as to requests
for assistance made outside of the Standard Support Hours, within * after the
start of the next day occurring during the Standard Support Hours.
3.3 When a suspected error is reported, Phase Forward will analyze the
information provided by Licensee and will classify the error. Phase Forward will
use commercially reasonable efforts to rectify as a matter of urgency any major
inherent malfunction or error in Software when attributable to Phase Forward.
Suspected errors in Software will be classified as follows:
- PRIORITY 0: Catastrophic problem impacting multiple system users of active
production system. System cannot be used at all. Problem perceived as
presenting potential trial data integrity risks.
- PRIORITY 1: Serious problem impacting multiple system users. System can be
used but functionality seriously impacted. Problem not perceived as
presenting potential trial data integrity risks.
- PRIORITY 2: Malfunction which prohibits use of one or more of the material
functionalities of System. System is still usable and trial data integrity
is intact.
- PRIORITY 3: Malfunction which prohibits use of one or more non-material
functionalities of System. System is still usable and trial data integrity
is intact.
- PRIORITY 4: Malfunction which does not belong to any of the aforementioned
priority classes.
Reclassification of errors may be done by mutual agreement. Response and work
around times are set forth in Phase Forward Service Level Guide.
4. LICENSEE RESPONSIBILITIES
4.1 Licensee must ensure that its end-users of the Software who contact Phase
Forward for Standard Support Services are fully-trained on the applicable
Software.
4.2 Before contacting Phase Forward with a suspected error, Licensee undertakes
to: (i) analyze the suspected error to determine if it is the result of
Licensee's misuse or misunderstanding of Software, the performance of a third
party or some other cause beyond Phase Forward's reasonable control, (ii)
ascertain that the error can be replicated and (iii) collect and provide to
Phase Forward all relevant information relating to the error.
4.3 If Phase Forward determines that a reported error is directly related to
unauthorized alterations of Software by Licensee, Licensee's failure to
implement Upgrades within a reasonable time period after release, the
performance of a third party or some other cause beyond Phase Forward's
reasonable control, then Phase Forward may charge for employee time expended at
Phase Forward's prevailing time and material rates, plus reasonable
out-of-pocket expenses, and Phase Forward will be released from support
obligations for any modified portion of the Software.
Phase Forward SLSA 8.7
INTEGRATED CUSTOMER SUPPORT
GLOBAL SERVICE LEVEL GUIDE V 2.1
April 1, 2004
REFERENCE DOCUMENT
Phase Forward's Licensee Support Services Policy.
AUDIENCE
This document is intended for use by Phase Forward's Technology Transfer and ASP
Customers.
The hosting of servers will be via third party managed facilities, which provide
worldwide network access, security, uninterruptible power, and high bandwidth
thresholds. One hosting facility is located in a Qwest, Inc. facility, located
in Sterling, Virginia USA. The second is located in Ashburn VA and is an Equinix
facility
SCOPE OF SERVICE LEVEL GUIDE
This Guide covers all of the activities of:
1. The Global Support Centre including "First Level" customer support,
"Site Assessment" and "Provisioning" activities related to Phase
Forward's InForm(TM) product solution.
2. The service offerings associated with the hosting of clinical trial
servers.
3. "Second level" support activities related to Phase Forward's
Clintrial(R), Clintrace(R), and InForm product solutions
This Guide does not cover the support activities related to end-user product
functionality or clinical requirements. This Guide is subject to additional
terms set forth in the Phase Forward Licensee Support Services Policy. Phase
Forward's ability to provide the services under this Guide are dependent on
Customer's adherence to the customer obligations described in the Licensee
Support Services Policy.
Appendix X to this Guides describes certain service credits and other
consequences of continued failure to meet service levels required by this Guide.
HOURS OF OPERATIONS
Phase Forward offers first level support, second level support and server
hosting services to customers who are using its products.
FIRST LEVEL SUPPORT
First Level Support takes calls from the customer and logs problems reported
concerning the Software or the Services. The goal of First Level Support is to
provide accurate and timely solutions to customer reported problems. First Level
Support personnel are responsible for simple problem resolution and will
escalate problems requiring a greater level of technical expertise to Second
Level Support personnel.
First Level Support is available for service *. Specific customer support hours
of operation and provision of languages will depend on the service purchased.
First Level Support specifically excludes calls relating to a clinical trial
that do not also relate to the Software or Services. If a First Level Support
representative receives a call from an Investigator site that relates to a
clinical study being conducted by GSK, rather than to the Software or the
Services, Phase Forward will (a) inform the caller that he or she should contact
GSK directly, and not Phase Forward, and (b) call the appropriate GSK monitor to
provide notice of the occurrence.
SECOND LEVEL SUPPORT
Second Level Support takes calls from the technical transfer customers and logs
problems reported. Second Level Support personnel are software support
specialists. They are capable of solving a wide class of problems and have the
responsibility to escalate the issue as required.
Phase Forward SLSA 8.7
The standard hours of operations for Second Level Support are * US Eastern
Standard time * Monday through Friday.
*
* Due to Daylight Savings, for a two week period, the time difference between
the US and UK is 6 hours instead of 5 hours.
SERVER MANAGEMENT
Phase Forward will provide server management and support for production
environments *, including holidays, but excluding periods during which Scheduled
Maintenance is conducted within the hours noted below.
SERVICE SERVICE HOURS (EASTERN TIME) RESPONSE TIMES
Server Availability * Server will be available during
specified period with exception
of system reboot or maintenance
windows outside of this time for
emergencies and or scheduled
work accepted by the client.
Server will be available within
* of system reboot.
Server Maintenance Window * Responses will be provided upon
return to normal service hours.
Please refer to Appendix VIII for further descriptions of Server Management and
Server Availability.
STANDARD LANGUAGE SUPPORTED
First Level Support is offered in the following languages:
SUPPORT HOURS AND COVERAGE English Language: *
Spanish & French: Monday *
German & Italian: Monday *
CONTACT METHOD SUPPORTED Phone/email/fax support
Additional languages can be provided subject to commercial agreement. Examples
of additional languages provided include: Japanese, Portuguese, Polish and
Russian.
Hosting and Second Level Support are available in English language only.
STANDARD PRODUCT SUPPORTED
First Level Support services are available for InForm and InForm Portal products
not retired, as described in the Licensee Support Services Policy, by Phase
Forward.
Second Level Support services are available for all Phase Forward products not
retired by Phase Forward. For older products already retired, Second Level
Support is available to provide work-around solutions, but no product
maintenance releases will be issued.
PROCESS OVERVIEW
First Level Support activities are handled according to the processes attached
in the Appendices I- VI.
Second Level Support activities are handled according to the processes attached
in Appendix VII.
Hosting activities are described in Appendices VIII.
SERVICE LEVELS
The following table describes the service levels for the measures indicated.
8.1 First Level Support and End User related Services.
INTERNAL METRICS
MEASURE SERVICE LEVEL PERFORMANCE TO BE MEASURED ESCALATION PROCEDURE
------------------------------ ------------------ -------------------- --------------------- --------------------
SITE ASSESSMENT & PROVISIONING
Site Assessment of Complete within * *% sites assessed Time taken from Phase Forward Team
Investigator and CRA within timeline, per receipt of complete Leader ("Team Leader")
site study. and QC`d Master User will review process /
List ("MUL") to issue resource level with
of complete site Phase Forward
recommendation form Implementation
either passing or Manager ("IM") when
failing the site. more than *% of sites
fail to be assessed
Note: Where Customer within *.
assistance is
required the timeline
is stopped at the Note: Where sites are
point when the issue unresponsive to the
is escalated to Phase Forward`s site
Customer. assessment team,
Customer dependency
is to provide
assistance in the
form of scheduling a
formal appointment.
Provisioning high Complete within * *% sites installed Timeline starts upon Team Leader will
speed lines for within timeframe, per receipt of approved review process/
Investigator or CRA study. recommendation form resource level with
site. from Customer and Operations team when
ends when more than *% sites
confirmation is fail to be
received that the provisioned within *.
line has been
installed. Note:
timeline stops if Note: Customer
Phase Forward dependency to provide
requires assistance assistance re the
from the Customer and purchasing of high
restarts upon speed lines/
confirmation of hardware in countries
scheduled where Phase Forward
appointment. does not have an
office. Phase Forward
has offices in the
United States.
England, France,
Japan and Australia.
Additionally within
certain countries
where Phase Forward
is reliant on a
single provider it
may not be possible
to meet the relevant
metric. In this case
additional metrics
will be supplied at
the Project
Initiation Meeting
for affected
countries.
INTERNAL METRICS
MEASURE SERVICE LEVEL PERFORMANCE TO BE MEASURED ESCALATION PROCEDURE
------------------------------ ------------------ --------------------- --------------------- --------------------
Provisioning Complete within * *% provisioned Time taken from Team Leader will
computer, ISP, IE within timeline, per receipt of approved review process /
upgrades. study. recommendation from resource level with
Customer to Operations team when
confirmation that more than *% of
laptop has been laptop deployments
deployed at the site. fail to be deployed
within *.
Note: timeline stops
if Phase Forward
requires Customer Note: Customer
assistance and dependency to provide
restarts upon assistance re the
confirmation of purchasing of
scheduled appointment. hardware in countries
where Phase Forward
does not have an
office.
FIRST LEVEL SUPPORT
Response to first First call *% of total received First Call Resolution Team Leader will
call for assistance resolution calls closed on the % (Number of User review daily First
from a user to the first incoming call. calls closed on the Call Resolution % and
helpline(1). initial call) during will escalate to IM
each month of the when *% First Call
study. Resolution rate is
not met for *.
IM will review
training and resource
requirements with
Team Leader.
Response to open calls. * *% of open calls Call closed within * Team Leader takes
being closed within of initial call, full ownership of
timeline. during each month of open call after *
the study. and will follow
the defined
escalation process.
IM reviews all open
calls with Team
Leader.
At the end of each
month a report of all
open calls will be
issued to the
eService & Support
Senior Customer
Service Manager.
This is a report
produced by Supplier
that will then be
passed to Customer.
Call waiting time(2) * *% of calls answered Time to answer * Team Leader will
within timeline. during each escalate exceptions to
month of the study. Service Level to IM who
will review resource
levels and
requirements.
Please note this
metric is generic
across all trials due
to the use of
individual country
specific free phone
numbers.
Abandon rate Less than *% calls *% Calls abandoned (%), Team Leader reviews
lost per month during each month of trends and escalates
* the study. situation to IM when
compliance with
Service Level is not
achieved for third
consecutive day. The
trends are analyzed
over a * to give
improved forecasting
and planning to ensure
resources are optimized.
Please note this
metric is generic
across all trials due
to the use of
individual country
specific free phone
numbers.
(1) Refer to Appendix X of this Guide for possible consequences of the failure
to meet this service level
(2) Refer to Appendix X of this Guide for possible consequences of the failure
to meet this service level
------------------------------------------------------------------------------------------------------------------------------------
SERVICE INTERNAL METRICS
MEASURE LEVEL PERFORMANCE TO BE MEASURED ESCALATION PROCEDURE
------------------------------------------------------------------------------------------------------------------------------------
Calls to Voicemail Less than *% of *% Calls to voicemail Team Leader reviews trends and escalates
calls bounced to (%), during each situation to IM when compliance with Service
voicemail per month month of the study. Level is not achieved for third consecutive day.
* The trends are analyzed over * to give improved
forecasting and planning to ensure resources
are optimized
Please note this metric is generic across all
trials due to the use of individual country
specific free phone numbers.
------------------------------------------------------------------------------------------------------------------------------------
Activation and Complete within * *%, per Time to complete Team Leader reviews trends and escalates
Initial User of receipt of study. activation and situation to IM when compliance with Service
Password Change relevant form from password change Level is not achieved for third consecutive day.
Customer. * process during each The trends are analyzed over a * to give improved
month of the study. forecasting and planning to ensure resources
are optimized.
------------------------------------------------------------------------------------------------------------------------------------
User Management Complete within * *%, per Time to complete Team Leader reviews trends and escalates
after Customer study. activation and situation to IM when compliance with Service
approves the password change Level is not achieved for third consecutive day.
add/change form process * during The trends are analyzed over a * to give improved
each month of the forecasting and planning to ensure resources
study. This process are optimized.
* runs from receipt
of signed completed
form from the
Customer.
------------------------------------------------------------------------------------------------------------------------------------
Turnaround time for * *%, per Hardware replacement Dependency: appropriate hardware must be
hardware replacement study handed to courier available in spare pool.
from Supplier for
delivery to the Supplier recommends that *% of total dedicated
Clinical Study site laptops deployed be maintained in spare pool. If
within * of no spare hardware, turnaround will be as per the
call with the measure set out above for the provisioning of
approval of the computer *
Customer.
------------------------------------------------------------------------------------------------------------------------------------
8.2 System Performance for Studies Hosted by Phase Forward
--------------------------------------------------------------------------------
MEASURE SERVICE LEVEL DESCRIPTION
--------------------------------------------------------------------------------
Number of incidents *% resolved within Priority 0, 1, 2, 3, 4 type
which cause degradation specified time frames incidents resolved
of the System referenced in Section D within timeframes cover
performance Matrix 2. both notice and
resolution. In addition,
This Service Level this covers System
covers all performance at the
infrastructure, hosting facility.
application and
software.
Incident means an Response Time means the
unexpected failure that elapsed time taken to
interrupts or degrades a record an Incident,
component of The acknowledge receipt of
Services. Each Incident the Incident, report to
is reported to the Help the End User and start
Desk which will result working to resolve the
in a problem ticket Incident
being raised and
reported via the SLA; the
impact of the Incident
is related to the
Severity Level
Degradation means a In the event of network
situation in which reliability and
Availability is infrastructure problems
unaffected but located in the customers
performance is inferior Lan/Wan have a negative
to that defined by the impact on the
Service Levels, accepted performance of a trial
benchmarks or normal Phase Forward will work
user expectations. with the client to
identify and propose
solutions to the
problems. During the
times of situations
directly related to the
customers infrastructure
including Firewalls,
Proxy Servers and
internal LAn
connectivity The SLA
metrics will be
suspended until such a
time that the problems
are remedied.
--------------------------------------------------------------------------------
MEASURE SERVICE LEVEL DESCRIPTION
Server CPU utilization Maximum *% CPU utilization during Average utilization of an individual processor or a
each month. group of processors.
Server memory utilization Maximum *% Memory utilization Average utilization during a one month period of a
during each month. Server's PHYSICAL memory. Utilization = Physical
Memory--Free Physical Memory
Server disk utilization Maximum *% Disc utilization during Utilization of a disk (for Windows NT machines)
each month or a file (for UNIX machines).
Network Server utilization Maximum *% Server utilization Number of packets received per second by each LAN
during each month. interface during a given time period.
Internet bandwidth Maximum *% Bandwidth during each Average number of bits in and out by the front end
month. interface during a given time period.
8.3 System Availability for Studies Hosted by Phase Forward
MEASURE SERVICE LEVEL DESCRIPTION
Network availability *% uptime during each month. Except when Scheduled Maintenance* is carried out.
Network latency Less than *, during each month. Measured at hosting facility
Application Server availability *% uptime during each month. Outside of Scheduled Maintenance
Application hosting service * *% service availability with agreed exceptions for
Change Management and Scheduled Maintenance
Data transfer *% uptime during each month. Uptime for transferring Study Data and documents to
and from the System subject to the Customer Policies
relating to security restrictions and the Customer's
internal network status.
* The term "Scheduled Maintenance" refers to routine server maintenance to add
software or hardware upgrades or enhancements, or to correct software, operating
system or hardware errors. Scheduled Maintenance will be scheduled in
consultation with the Customer in advance so to minimize any adverse impact on
the conduct of the Clinical Study.
8.4 Incident Resolution
Should any call received by First Level Support need resolution outside of that
group, it is passed to Phase Forward's Second Level Support, who undertake a
triage process to understand the incident, and classify errors with the mutual
agreement of the Customer, based on the definitions below. A description of the
incident and the rationale behind the assigned rating is explained to the
Customer as part of the acknowledgement and prioritization process.
Matrix 1
Priority Definition
Priority 0 Catastrophic problem impacting multiple system users of
active production system. System cannot be used at all.
Problem perceived as presenting potential trial data
integrity risks.
Priority 1 Serious problem impacting multiple system users. System can
be used but functionality seriously impacted. Problem not
perceived as presenting potential trial data integrity
risks.
Priority 2 Malfunction which prohibits use of one or more of the
material functionalities of System. System is still usable
and trial data integrity is intact.
Priority 3 Malfunction which prohibits use of one or more non-material
functionalities of System. System is still usable and trial
data integrity is intact.
Priority 4 Malfunction which does not belong to any of the
aforementioned priority classes.
TIMELINE FOR COMMUNICATION OF PLAN PROPOSALS AND UPDATES
Timelines for the communication of initial assessment/response, proposals for
incident resolution plan and follow-up updates are based on the Overall
Priority rating as detailed by the matrix below. Phase Forward will meet or
exceed these timescales *% of the time. The timescales set forth below for the
process steps, acknowledgement through to initial assessment are measured from
the Customer's initial call to the First Level Support helpdesk.
Timelines set forth below for the communication of proposals for incident
resolution plan and follow-up updates are only applicable on Phase Forward has
received all reasonably necessary information from the Customer (which
information shall be specified by Phase Forward as being reasonably required to
enable it to reproduce the incident) and has been able to successfully
reproduce the incident. Phase Forward will attempt to reproduce the incident as
soon as practical after it has been reported and in any case within any
specified timescales set out in this Schedule.
Matrix 2
Overall Priority
Rating Priority 0 Priority 1 Priority 2 Priority 3 Priority 4
Process Step
Acknowledgement and Priority
Confirmation Greater than Greater than Greater than Greater than Greater than
or equal to or equal to or equal to or equal to or equal to
* * * * *
Resolution Plan Proposed Greater than Greater than Greater than Greater than Greater than
or equal to or equal to or equal to or equal to or equal to
* * * * *
Follow-Up Updates * * * * *
* *
-- ACKNOWLEDGEMENT AND PRIORITY CONFIRMATION: Acknowledgement that
Second Level Support has been notified of the request of support to
resolve a technical problem, that the request has been logged in the
department CRM system, and that a ticket ID has been assigned to the
problem. In addition, the support request is assigned a priority based
on the Technical Severity and Time Urgency of the reported problem.
The priority may be modified at a later time using the escalation
process. From that point forward, all communications with the Customer
will include the support ticket ID.
-- RESOLUTION PLAN PROPOSED: Communication proposing an action plan to
resolve the incident, or reduce its severity level.
-- FOLLOW-UP UPDATES: Written communications documenting status of the
resolution of the incident.
TARGET TIMELINES FOR INCIDENT WORK-AROUNDS
Incidents may be resolved by implementing either a direct resolution or a
work-around.
-- Direct resolutions are defined as technical or process-based solutions
aimed at resolving the incident. Once implemented, resolutions restore
the original functionality and performance of the Services as outlined
in the applicable Contract.
- Work-arounds are defined as technical or process-based solutions
aimed at resolving the Incident or reducing its severity.
Work-arounds must be compliant with appropriate regulatory
requirements. They may, or may not, be the long-term solution.
Work-arounds will enable the Services to be performed substantially
in accordance with the functionality and performance requirements
specified in the applicable Contract.
Phase Forward's Second Level Support group may have to escalate to other
internal technical resources or external technical resources to assist with the
incident resolution (provided all contract requirements are satisfied). During
technical escalation, Second Level Support keeps ownership of the incident and
maintains its communication requirements, as detailed earlier. When an incident
is the result of an issue with a 3rd party software product, such as Oracle,
timelines for incident work-around are communicated, but not established, by
Second Level Support and fall outside of the incident work-around timelines
proposed below. Either party may escalate incidents within the other party's
organization by using the Dispute Resolution Procedure Timelines for the
proposal of incident work-arounds are based on the Overall Priority rating as
per the matrix below. Phase Forward's shall meet or exceed these targets *% of
the time.
Target timelines below for work-arounds are only applicable once Phase Forward
has received all necessary evidence and information from Customer and has been
able to successfully reproduce the incident. Phase Forward will attempt to
reproduce the incident as soon as practical after it has been reported. In the
event that Phase Forward fails to meet a timeline due to the unavailability of
necessary evidence and information requested from Customer, Phase Forward will
demonstrate this has been the case, if required, to the Customer.
Matrix 3
------------------------------------------------------------------------------------------------------
OVERALL PRIORITY
RATING
PROCESS STEP PRIORITY 0 PRIORITY 1 PRIORITY 2 PRIORITY 3 PRIORITY 4
------------------------------------------------------------------------------------------------------
greater than greater than greater than greater than greater than
or equal to or equal to or equal to or equal to or equal to
WORK-AROUND IMPLEMENTATION * * * * *
------------------------------------------------------------------------------------------------------
DEFINITION OF ROLES
PROJECT MANAGER (PM) - Focal point of contact within Phase Forward for the
client on all aspects of the study and management of internal teams involved in
the study.
IMPLEMENTATION MANAGER (IM) - Responsible for ensuring that the client project
management team and lead monitors fully understand the Phase Forward processes,
the project is delivered on time/to budget and is in full compliance with the
Phase Forward Quality Plan.
FIRST CALL RESOLUTION (FCR) - Provides a multi lingual * support to all
investigators and monitors involved in the study
TEAM LEADER (TL) - Manages a team of FCR Second Level Support Analysts working
on shift basis and who provide support to the customer on all requests-issues
ESERVICE & SUPPORT SENIOR CUSTOMER SERVICE MANAGER - Overall responsible for the
eService & Support teams covering Site Assessment, Provisioning and First Call
Resolution (FCR).
SCHEDULE 3
PHASE - FORWARD COMMITMENT TO PURCHASE SERVICES
000 Xxxxxx Xxxxxx GLAXOSMITHKIINE SERVICES UNLIMITED
Xxxxxxx, XX 00000, X.X.X.
Tel. (000) 000-0000
Fax. (000) 000-0000
THIS COMMITMENT TO PURCHASE SERVICES (the "Appendix") is made pursuant to the
Software License and Services Agreement between the parties dated
(the "Agreement"). The effective date of this Appendix shall be the date of last
execution (the "Effective Date").
PHASE FORWARD INCORPORATED ACCEPTED AND AGREED BY CUSTOMER:
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ X. Xxxxxx
Name: Xxxx X. Xxxxxxxxxx Name: X. Xxxxxx
Title: Senior Vice President and Title: V.P. DCS IT
Chief Financial Officer
Phase Forward Incorporated
Date: July 23, 2004 Date: 12 July 2004
1. Customer desires to purchase certain services (the "Services") from Phase
Forward, as more fully described in the Service Description and Price Sheet
attached hereto as Exhibit A, in connection with clinical studies (the
"Studies"). To order Services for a Study, the parties shall enter into Study
Notices, Statements of Work, Services Descriptions or other documents pursuant
to which Services may be requested (referred to collectively as a "Service
Order").
2. Customer agrees that it will purchase at least * (the "Commitment Amount") in
Services from Phase Forward during the term of this Appendix, which will
commence on the Effective Date and terminate on the date three years later (the
"Initial Term"). Notwithstanding anything in this Appendix, the Agreement or any
Service Order, all Services purchased under this Appendix must be consumed
within the Initial Term. During the Initial Term, pricing shall be in accordance
with the Exhibit A. Any Services purchased following the Initial Term shall be
as mutually agreed to by the parties.
3. Payment for Services will be made in accordance with the Service Order for
such Services, provided however that payment must at least meet the following
targets:
* by *
* by *
* by *
* by *
Therefore, if the payments pursuant to a Service Order have not met the targets
above, Customer shall pay Phase Forward, within * following such target date, an
amount equal to (i) the target amount less (ii) all fees previously paid.
4. For the sake of clarification, the parties understand and agreement that
Services ordered pursuant to Statements of Work No. GSK-CS-112 (Enterprise
Adoption), and GSK-CS-114 (Program Management) will not be counted toward the
Commitment Amount.
5. Notwithstanding anything in the Agreement to the contrary, Customer may only
terminate this Schedule in the event that Phase Forward commits a breach of a
material provision of the Agreement and fails to cure such breach 30 days after
receipt of notice from Customer of such breach. If, during the Initial Term,
Phase Forward fails to meet the service levels in the Service Level Guide
attached to the Agreement for a period of more than 3 months, the parties will
enter the Dispute Resolution Procedure in Section ___ of the Agreement to
discuss any extension of the Initial Term to use the Commitment Amount. If there
are continued failures following the time period in the previous sentence and
Customer, terminates a license to Software or a Statement of Work due to Phase
Forward's material breach thereof, then the Commitment Amount will be equitably
reduced to reflect the unavailability of such Software or Services.
6. Notwithstanding anything to the contrary, GSK have the right to terminate
this Commitment Appendix between the Effect Date and 24th December 2004, and the
commitment beyond the first *. In the event that GSK does elect this option,
there will be a corresponding increase in the software fees on the License Order
Schedule of even date herewith by *. This amount will be paid by two additional
* payments due on each of * and *.
EXHIBIT A
SERVICE DESCRIPTION AND PRICE SHEET
1. eCRF Design and Build
Definition: The service covers the following activities:
- Development of eCRFs based on Customer specifications.
- Production of annotated eCRFs for Customer review and sign off.
- Development of edit check specifications based on Customer
requirements.
- Trial data extract specifications and configurations specifications
for user roles and rights.
- InForm study application development based on approved
specifications.
- Full QA testing of the complete application prior to release for
Customer user acceptance testing.
Fees:
Activity Cost per Unit
Base Fees *
Per unique form *
Per unique rule *
Trial data extract Will be estimate depending on format
and degree of customisation required.
2. Technical Site Assessments
Unit Price: * per Site
Definition: A site means 1 location and up to 2 computers. Assess the
technical environment at each customer and investigator Site in order to
determine what, if any, modifications may be required to meet system
performance standards, including the following:
- Issue of eAssess URL, password and ID to Investigators and CRAs
whose equipment and infrastructure need to be assessed
- Technical review of site configuration and commissioning (final
testing) where possible
- Issue of Certificate of Connectivity to study site or sponsor, site
monitor where performance meets connectivity assessment criteria
- Production of Recommendation Form for upgrade, with approximate
costs and delivery date for sites/monitors where performance does
not meet the connectivity assessment criteria.
- Issue of Welcome Pack
3. Site Provisioning
Unit Price: * per Site
Definition: Coordinate and implement changes to Sites' technical
infrastructure in order to meet system performance standards. Unit price
is for professional services only and excludes cost of hardware/software
which will be handled as a separate expense billed from each Phase Forward
to Customer directly in accordance with Phase Forward's standard
provisioning agreement.
4. Hosting and Server Management
Definition: See Attached Service Level Guide
Fees for Phase 1 Studies.
--------------------------------------------------------------------------------
Numbers of Start/Set Up Charges Monthly Close Out
Studies (GBP)-one off fee Charge (GBP) Charges (GBP)
--------------------------------------------------------------------------------
From To
--------------------------------------------------------------------------------
1 24 * * *
--------------------------------------------------------------------------------
25 49 * * *
--------------------------------------------------------------------------------
50 74 * * *
--------------------------------------------------------------------------------
75+ * * *
--------------------------------------------------------------------------------
Fees for Phase 2 Studies.
--------------------------------------------------------------------------------
Assumptions Start-Up charges Monthly Close Out
(GBP) Charge (GBP) Charges (GBP)
--------------------------------------------------------------------------------
<40 Sites * * *
<100 Users
<400 Patients
Hosted for < 18 months
--------------------------------------------------------------------------------
<100 Sites * * *
<300 Users
<1,000 Patients
Hosted for < 18 months
--------------------------------------------------------------------------------
<200 Sites * * *
<500 Users
<2,000 Patients
Hosted for < 18 months
--------------------------------------------------------------------------------
Dedicated Hosting Services
Customer may purchase dedicated hosting services, at fees to be agreed to
by the parties (which will be based on the assumptions and rates
previously discussed between the parties in connection with the Dedicated
Services Model); provided that Customer purchases such services for a
minimum of 12 months, with at least a 3 month notice period if Customer
does not wish to renew such services after their term.
5. Help Desk
Definition: See attached Service Level guide
a. Unit Fees: * per Site per month
b. Dedicated Help Desk Services
Customer may purchase dedicated help desk services, at fees to be agreed
to by the parties (which will be based on the assumptions and rates
previously discussed between the parties in connection with the Dedicated
Services Model); provided that Customer purchases such services for a
minimum of 12 months, with at least a 3 month notice period if Customer
does not wish to renew such services after their term.
Assumptions in this pricing include a 10% efficiency gain in January 2005,
and a further 10% gain in July 2005. Phase Forward guarantees minimum
volumes of service related to a specific team size as per the model. The
management of this team will incorporate a quarterly demand, capacity, and
efficiency review, and additional resources will only be added with the
agreement of GSK.
6. User Account Creation and Maintenance
Definition: Set up and maintain user accounts. Once appropriate user
training has been completed, activation will occur.
Unit Fees: * per User
7. Consulting Services
Unit Fees: * per day.
