EXHIBIT 10.6
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS
[LILLY LOGO]
This Software License Agreement (the "Agreement") is entered into as of the 15th
day of March, 2001 by and between Xxx Xxxxx and Company, having its principal
place of business at Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and
its Affiliates, (hereinafter referred to as "Lilly") and Phase Forward
Incorporated, a Delaware corporation with a principal place of business at 0000
Xxxx Xxxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as "Licensor").
INDUCEMENTS
WHEREAS, Lilly is in the business of the research, development, manufacture, and
sale of pharmaceutical based health care solutions, and has submitted to
Licensor certain information regarding (i) Lilly's desire to add value and to
improve its capability for delivering pharmaceutical based health care solutions
through the use of certain technology; (ii) a general description of the
hardware, software and services to be provided by Licensor related to the
implementation of this technology within Lilly's organization, and (iii) certain
technical requirements to fulfill the present and future needs of Lilly
(collectively the "RFP");and
WHEREAS, Lilly desires to enter into a mutually beneficial relationship with
Licensor under the terms and conditions hereinafter set forth in order to
facilitate the anticipated acquisition by Lilly of certain Products; and
NOW, THEREFORE, in consideration of the inducements, mutual covenants and
conditions herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement
shall have the meanings detailed below.
* DATE. For any Product hereunder, the * Date is * provided for in this
Agreement. If Lilly * , the * Date for such Product shall be the date
that * .
* . * is the * that * acquired by Lilly hereunder.
AFFILIATE. An Affiliate is any company, partnership, or joint venture more
than twenty-five percent (25%) of the interest in which is owned or
controlled (i) by a party; or (ii) by any Parent or Subsidiary of a party.
CONTRACTORS means organizations (such as, but not limited to, consulting
firms and contract research organizations), employees of such organizations
and individual contractors that provide services to Lily on a consulting or
outsourcing basis.
SOFTWARE
LICENSE
AGREEMENT
CPU. Any computer or computer complex which shares memory or direct access
storage device, and which for the purposes of Lilly's use thereof may be
accessed by Lilly.
DOCUMENTATION. Documentation shall mean the portion of the Product
consisting of material in written, printed or electronic format, including
but not limited to: technical reference manual, technical notes manual,
users manual, application administration guide, and application security
administration guide.
INSTALLATION DATE. The Installation Date is the date by which all items and
parts of the applicable Product(s) shall be installed and prepared for
Acceptance Testing.
INVESTIGATIONAL PRODUCTS means medical procedures, drugs or devices which
Lilly is testing in clinical trials.
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.
PRODUCT. A Product(s) is any Software or other deliverable pursuant to this
Agreement.
SERVICES. Services include any programming service, preventive maintenance,
remedial hardware maintenance, software maintenance conversion service,
consulting service, training service, or support service or other service
provided by Licensor to Lilly pursuant to this Agreement.
SOFTWARE. Software is the object code version of any computer programs,
programming, modules, patches, upgrades, or modifications delivered by
Licensor to Lilly pursuant to this Agreement as set forth in Appendix A.
SPECIFICATIONS. Specifications are the functional performance parameters,
capabilities and functionality of Software as published in its then-current
Documentation.
UPDATE. Update, means a set of procedures or new program code implemented
by Licensor to correct Errors (as defined in the * Agreement) in the
Product and to allow the Product to continue to function under supported
versions of an applicable operating system, and which may include
modifications and enhancements to improve functioning of the Product and is
designated by a change in the digits anywhere to the right of the tenths
digit in the Software version number [x.x(x)].
THE SECTIONS ON THE FOLLOWING PAGES ALSO ARE PART OF THIS AGREEMENT
IN WITNESS WHEREOF, LILLY and Licensor have caused duly authorized
representatives of the respective parties to execute this Agreement on the
date(s) set forth below.
XXX XXXXX AND COMPANY LICENSOR
By: /s/ X. X. Xxxxxx By: /s/ Xxxx X. Schlicking
------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Schlicking
------------------------------- ------------------------------------
Title: Chief Financial Officer Title: Senior Vice President and CFO
------------------------------- ------------------------------------
Date: March 15, 2001 Date: March 7, 2001
------------------------------- ------------------------------------
UPGRADE means a new version or release of the Product provided by Licensor
which improves the functionality or which adds functional capabilities to
the Product and is designated by a change in the digits (i) in the tenths
digit in the Software version number [x.(x)x] or, (ii) to the left of the
decimal point in the Software version number [(x).xx]. Upgrade shall
include versions or releases of any successor product to the Product,
including, but are not limited to by way of example, any next generation or
successor product that contains or performs comparable or similar
functionality and performance as the Product.
SOFTWARE WARRANTY PERIOD. The Software Warranty Period is the period of
time beginning on the * Date and continuing * calendar days thereafter.
2. LICENSE. Licensor hereby grants to Lilly, and Lilly hereby accepts, on the
following terms and conditions, * for either an enterprise license, a
concurrent user license or a named user license as provided on Appendix A.
3. USE OF SOFTWARE AND DOCUMENTATION. Lilly will have the right, as part of
the license granted in this Agreement, to make as many additional copies of
the Software and Documentation needed in support of the licensed use of the
Software and Documentation as it may determine; provide however, that Lilly
* copy of * is installed. Licensor shall have the right to * .
Lilly may also make backup and archival copies of the Software and
Documentation. Lilly shall have the right to utilize any Product during the
term of this Agreement, on or in connection with any CPU that is utilized
to fulfill its data processing needs at one or more sites owned or
controlled by Lilly, or its outsourcing Contractor * which will not be
* . It will not be * organization or other organization providing
similar services.
Lilly, its agents or Contractors, shall have the right to unlimited use of
the applicable Software and to operate and use the Software at any time and
for any period of time at the convenience of Lilly within the scope of the
license granted. Lilly may use the Software acquired hereunder * in
connection with * at sites owned or controlled by Lilly, or its
outsourcing Contractor * which will not * . It will not be * to an
outsourcing to * or other organization providing similar services.
4. SOURCE CODE. Within thirty (30) days after the effective date of this
Agreement, Licensor shall enter into a software escrow agreement with the
software escrow agent of its choosing * Lilly shall be listed as a
beneficiary under the software escrow agreement. Within thirty (30) days
after the initial delivery of Software to Lilly hereunder, Licensor shall
provide to the software escrow agent the "Deposit Materials" consisting of
the source code for the version of the Software delivered to Lilly (the
"Source Code"), and all documentation necessary for the use thereof.
Licensor shall maintain all such Deposit Materials with the software escrow
agent in its most current Upgrade version and will deliver any revised
Deposit Materials to the source code escrow agent * is effected by
Licensor. Lilly shall be entitled to receive the Deposit Materials upon the
occurrence of one or more of the following Escrow Events: (i)* (ii)
Licensor ceases, for any reason, to do business; (iii)* (iv) * (v)
bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation, or similar proceedings are instituted by or against Licensor
or all or any substantial part of its property under any Federal or State
law; or (vi) other events, if any, defined in the source code escrow
agreement which permit the release of the Deposit Materials. Upon
occurrence of one or more of the foregoing Escrow Events, Lilly shall
receive a * including the Source Code and documentation therefor, solely
for the benefit of Lilly to use in a manner consistent with the terms of
this Agreement. In the event that Lilly shall be entitled to receive the
Deposited Materials pursuant to the Escrow Events, Lilly shall have the
right to * and Licensor shall * of this Agreement or any * .
5. PHASE FORWARD'S INTELLECTUAL PROPERTY
5.1 ACKNOWLEDGMENT OF RIGHTS. Lilly acknowledges that (i) as between
Licensor and Lilly, all right, title and interest in and to the Products
(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
Licensor and its licensors (if any), (ii) this Agreement in no way conveys
any right or interest in the Products other than the limited rights and
license to use them in accordance herewith, (iii) the Products are works
protected by the patent and copyright laws of the United States and by
international treaties, and (iv) Licensor asserts that the Products and
embody valuable confidential and secret information of Licensor or its
licensors (if any), the development of which required the expenditure of
considerable time and money.
5.2 LILLY'S OBLIGATIONS. Except as may be otherwise expressly authorized
herein, Lilly shall (i) not disclose or provide any Product to any other
party, (ii) not alter, reverse engineer, disassemble, decompile or copy any
Software, (iii) not use or analyze any Product for the purpose of
developing any similar product whether for external or internal use
(although Lilly may develop a similar product; provided however that * ,
(iv) not * in which any * Product are disclosed to any third party, (v)
limit access to the Products to its employees, Contractors and
Investigators who require access in connection with Lilly's use of the
Products as authorized hereunder and who have agreed in writing or are
otherwise legally bound to observe Lilly's obligations hereunder, (vi) take
all reasonable precautions, including secure storage of all media
containing copies of the Software, to prevent unauthorized or improper use
or disclosure of the Software, (vii) not remove from, and reproduce on any
authorized copies of, the Products all titles, trademarks, trade names, and
copyright, patent and other proprietary or restrictive legends or notices,
and (viii) maintain all copies of the Products in a manner so as to
reasonably preclude unauthorized use thereof or access thereto.
6. *. The initial Product furnished by Licensor shall be subject to * as
follows:
6.1. At least * prior to installation of the Product, but no later than *
following execution of this Agreement, Lilly shall provide Licensor with
its * Licensor shall then *. Following delivery *. Licensor shall certify
in writing to Lilly that *. With Licensor's assistance, Lilly shall, within
* after receipt of such certification, *: (i) *; and (ii) *.
6.2. If the Product * Lilly shall so notify Licensor in writing within five
(5) business days of * and the *. In such case, the * shall be the date
that * specified above.
Xxx Xxxxx and Company
Software License Agreement -- December, 2000 Edition 1.0
2
6.3. If the * , Lilly shall notify Licensor of * in writing within * of
completion of * and Licensor shall have * in which to * to cause it to *
Thereafter, Lilly shall have * in which to * specified above. This process
shall be repeated as may be necessary until * to be *; provided, however,
that if * hereunder within * after Licensor's initial written certification
to Lilly that *, Lilly shall have * and * , in addition to the remedies
available in Section 6.5. If Lilly fails to notify Licensor of * within
the * Provided that Licensor exercises its best efforts to * and *
hereunder within * days after Licensor's initial written certification to
Lilly that * Licensor shall have the option to cancel this Agreement if
Lilly does not * upon * notice that Licensor is exercising its option to
cancel the Agreement under this provision.
6.4. * DURING *. During all *, Licensor shall provide * as set forth in
Exhibit 2, * , attached hereto, at no expense to Lilly.
6.5. FAILURE TO * . If * fails to * , then Lilly may, at its sole
discretion, elect any or all of the following options.
6.5.1. Lilly may terminate the Agreement and request the * Lilly may cancel
the license and receive a full reimbursement from Licensor within * for any
and all fees that it may have paid. Lilly may, at its sole option, extend
such * subject to Lilly's right to cancel and obtain reimbursements if * .
If Lilly * Lilly will notify the Licensor in writing within five business
days of *.
6.5.2 Lilly may * and thereafter, for a period of * , each party agrees to
enter into good faith negotiations to determine if there is a resolution to
* acceptable to both parties, in their sole discretion.
6.6. In no event shall use of any Product by Lilly, for business, profit,
revenue, or any other purpose during * , constitute *.
7. FEES, INVOICES AND PAYMENTS
7.1. LICENSE FEES. Lilly will pay to Licensor the License Fees specified in
Appendix A, according to the schedule specified in such Appendix A.
7.2. MAINTENANCE FEES. Provided that Licensor has not breached this
Agreement or the Maintenance Agreement, during the time period beginning *
Lilly shall pay for Maintenance Services in accordance with the Maintenance
Services Fees specified in Appendix A. Licensor shall not enter into a
factoring transaction or similar transaction obligating Lilly to a third
party with respect to the Maintenance Fees.
7.3 CHARGES. Lilly will determine the applicability of charges by the
following criteria: (i) except as provided in Section 6.3, no Product shall
be deemed to be * and Lilly shall have no obligation to Licensor for any
payment unless and until the Product has * as set forth in this Agreement;
(ii) Lilly shall not be billed or liable for any charges or expenses other
than those charges or expenses stated and expressly authorized in this
Agreement; and (iii) charges under this Agreement effective for less than a
full calendar month shall be prorated on the basis of a thirty (30) day
month.
7.4 INVOICES. Invoices shall be delivered to Lilly at the following address
and must clearly indicate the Lilly Purchase Order number:
Xxx Xxxxx and Company
Accounts Payable, Drop Code 0000
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Invoiced amounts not in dispute shall be paid by Lilly * . In the event
that Lilly disputes the validity of any amount in any invoice, Lilly shall
communicate to Licensor the nature of the dispute within * after the date
of the invoice.
7.5 TAXES. Lilly will pay, or reimburse Licensor, for any and all taxes,
imposed on Lilly or Licensor by this Agreement, or on the Products provided
hereunder, or the use thereof; provided, however, that Lilly shall have no
obligation to pay any such taxes or amounts: (i) that are based upon income
of Licensor; or (ii) that are personal property taxes assessed on Products
that are licensed to Lilly; or (iii) that are personal property taxes
assessed or assessable for any period prior to the * for the applicable
Product; or (iv) if Lilly has no obligation under this Agreement to pay
Licensor the license, purchase, or other acquisition or usage price or fee
for the Product(s) against which the tax is assessed or otherwise due and
payable; or (v) that are due in whole or in part because of any failure by
Licensor or its agents to file any return or information required by law,
rule or regulation. Any personal property taxes assessable on purchased
Products after * therefor shall be borne by Lilly. Licensor shall pay, and
shall hold Lilly harmless against, any penalty, interest, or additional tax
that may be assessed or levied as a result of the failure or delay of
Licensor or its agents to file any return or information required by law,
rule, or regulation. Licensor shall provide reasonable assistance to Lilly
should Lilly contest any taxes imposed on it which result from this
Agreement.
8 LILLY'S COVENANTS AND OBLIGATIONS
8.1 PROHIBITION OF DIAGNOSTIC OR THERAPEUTIC USE. Lily acknowledges that it
understands, and undertakes to ensure that all users of the Products
(including, without limitation, Contractors and Investigators) will
understand, that (i) the Products are designed to expedite and improve the
collection, management and analysis of specific and limited data in
clinical trials; (ii) such data do not comprise complete patient medical
record (iii) such data may be incorrect because of transcription or other
errors; (iv) the Products are not a diagnostic or therapeutic aid and must
be used only for research purposes, and (v) data collected by, or analyses
performed by, the Products must not be used for patient diagnosis or
therapy decisions.
8.2 COMPLIANCE WITH CLINICAL TRIAL AND PRIVACY LAWS. Lilly represents and
covenants, with respect to all clinical trials for which the Products are
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
Xxx Xxxxx and Company
Software License Agreement -- December, 2000 Edition 1.0
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(ii) without limiting the generality of the foregoing, that each such trial
will use consent forms which include all language necessary, and such
consent forms will be implemented and obtained from subjects under all
procedures necessary, to ensure compliance with the foregoing.
9. INFRINGEMENT.
9.1. INFRINGEMENT WARRANTY. Licensor warrants that Lilly's use of any
Product or Documentation will not infringe any patent, copyright,
trademark, trade secret, or other proprietary right and that the Product or
Documentation is not the subject of a lien, a security interest, claim,
cause of action, or otherwise hypothecated to a third party.
Licensor warrants that it has the right to grant to Lilly the license to
use Product as set forth in this Agreement without violating the rights of
any third party and that there is no actual or threatened suit by any third
party based on an alleged violation of such right by Licensor. To the
extent Licensor incorporates third party rights into the Product, Licensor
warrants that it shall have obtained the rights from those third parties to
vest in or grant to Lilly the various license rights necessary under this
Agreement. Lilly acknowledges that use of any Product may require
third-party software (the "Third-Party Software"), that the license granted
by Licensor for Products does not include licenses for any such Third-Party
Software, and that Lilly is solely responsible for obtaining valid licenses
for all such necessary Third-Party Software.
9.2 * FOR * OF *. Licensor shall * as provided for in * against any claim
of a breach of the warranty set forth in Section 9.1 above. * AND THE
ENTIRE OBLIGATION * WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10. SOFTWARE WARRANTIES.
10.1. COMPATIBILITY AND PERFORMANCE. Licensor warrants that the Software
will be compatible with the Licensor's technical environment
recommendations, including hardware, operating system(s), software
application(s), CPU's and networks specified by Licensor. Licensor
represents and warrants to Lilly that all delivered components of the
Software will be the latest generally available release, and that future
releases and engineering changes to the Software or its components will not
degrade performance or remove functionality. Licensor represents and
warrants that at delivery and throughout the Warranty Period the Software
shall substantially conform to and will operate substantially in accordance
with the Specifications. Licensor shall not be responsible to the extent
failures are caused by (a) Lilly's failure to use the Software in
accordance with instructions included in the Documentation, or (b) the
modification of the Software by any person other than Licensor, its
employees, agents, affiliates or subcontractors (unless such modification
was authorized or approved by Licensor); or (c) disaster or accident
(unless caused by Licensor).
10.2. * FOR * OF * . Lilly acknowledges that errors may exist or occur in
any software program. As Licensor's *, and Lilly's * , for * set forth in
Section 10.1 and 10.3, Licensor shall * to * and/or to * to correct any
material error in any Software reported to Licensor during the Warranty
Period. If, after reasonable efforts, Licensor cannot make the Software
operate as warranted, then Licensor shall refund to Lilly all fees paid for
such nonconforming Software upon Lilly's return of such nonconforming
Software, * .
10.3. MEDIA DEFECTS. Licensor warrants that all tapes, diskettes or other
electronic media provided to Lilly hereunder will be free from defects.
Licensor shall, within five days of notification by Lilly of such defect,
replace any defective electronic media at no additional cost to Lilly.
10.4. ILLICIT CODE. Licensor warrants unless (i) authorized in writing by
Lilly or (ii) necessary to perform valid duties under this Agreement, any
Software provided to Lilly by Licensor for use by Licensor or Lilly shall:
(a) contain no hidden files, (b) as set up in the default installation, not
replicate, transmit or activate itself without control of a person
operating computing equipment on which it resides; (c) not alter, damage,
or erase any data or computer programs without control of a person
operating the computing equipment on which it resides; (d) contain no key,
node lock, time-out or other function, whether implemented by electronic,
mechanical or other means, which restricts or may restrict use or access to
any programs or data developed under this Agreement, based on residency on
a specific hardware configuration, frequency of duration of use, or other
limiting criteria ("Illicit Code"). Provided and to the extent any program
has any of the foregoing attributes, and notwithstanding anything elsewhere
in this Agreement to the contrary, Licensor shall be in default of this
Agreement, and a * shall apply. In addition to
any other remedies available to it under this Agreement, Lilly reserves the
right to pursue any civil and/or criminal penalties available to it against
the Licensor.
10.5. YEAR 2000. Licensor warrants and represents that the occurrence in or
use by the Product of any dates, including without limitation any date with
a year specified as "99" or "00", regardless of other meanings attached to
these values, and any date before, on or after January 1, 2000 ("Millennial
Dates") will not adversely affect its performance with respect to
date-dependent data, computations, output, or other functions (including,
without limitation, calculating, comparing, and sequencing) and that the
Product will create, store, process and output information related to or
including Millennial Dates without errors or omissions and at no additional
cost to Lilly. At Lilly's request, Licensor will provide sufficient
evidence to demonstrate the adequate testing of the Product to meet the
foregoing requirements.
10.6. DOCUMENTATION OF THE LICENSED SOFTWARE. Licensor warrants and
represents that it shall at all times document the operation of the
Software in a manner consistent with the best practices of the software
development industry, and such Documentation shall accurately reflect the
operation of the Software and enable a person reasonably skilled in
computer programming and in possession of the Software source code to use,
and maintain the Software fully and completely. Licensor further represents
and warrants that it shall control and identify all adaptations, upgrades,
and enhancements of the Software by means of a version, release or build
number.
11. GENERAL REPRESENTATIONS AND WARRANTIES.
11.1. DUE AUTHORITY. Each party's execution, delivery and performance of
this Agreement and each agreement or instrument contemplated by this
Agreement has been duly authorized by all necessary corporate action. This
Agreement and each agreement or instrument contemplated by this Agreement,
when executed and delivered by each party in accordance with the terms of
this Agreement, will be the legal, valid, and binding obligation of such
party, in each case enforceable in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization, or similar laws then in effect that govern the
enforcement of creditors' rights generally. All persons who have executed
this Agreement on behalf of a party, or who will execute any agreement or
instrument contemplated by this Agreement on behalf of a party, have been
duly authorized to do so by all necessary corporate action.
11.2. * REQUIREMENTS. Licensor represents and warrants that any products or
services provided under this Agreement, as delivered to Lilly, will * .
Licensor represents and warrants that to its knowledge any products or
services provided under this Agreement, as delivered to Lilly, * . Upon * ,
Licensor shall certify to Lilly that the products or services *
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Software License Agreement -- December, 2000 Edition 1.0
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* . Upon written notice from Lilly that any service or product provided
under this Agreement, as delivered to Lilly, does not * Licensor shall use
its best efforts to remedy such * breach within * at no cost to Lilly.
Furthermore, Licensor shall in good faith execute any and all agreements
that Lilly reasonably requests Licensor to execute in order that Lilly may
comply with Health Insurance Portability and Accountability Act ("HIPAA").
11.3. * . Licensor warrants and represents that * for a Product shall be
available from Licensor for the current version of the Product and the
immediately preceding version.
11.4. INSURANCE. Without limiting Licensor's liability to Lilly or third
parties hereunder, Licensor shall maintain Commercial General Liability
Insurance to include contractual and products completed operations
coverages to the extent covered by insurance to meet its indemnification
obligations under this Agreement or loss as required by applicable federal,
state, or local laws, regulations or orders. All such insurance shall be
primary and not contributory with regard to any other available insurance *
in the amount of not less than *. * Licensor represents and warrants that
it shall file all claims made under this Agreement with its insurance
carriers.
11.5. COMPLIANCE WITH LILLY POLICIES. Licensor agrees to reasonably assure
that its employees will follow Lilly policies while at any Lilly site;
provided Lilly provides Licensor with copies of such policies.
11.6. GIFTS AND GRATUITIES. Licensor, its employees and agents shall not
give or offer to give any material gifts or gratuities of any kind
whatsoever to any Lilly employee or members of their families. In the event
that Licensor is approached by anyone suggesting fraudulent or unethical
behavior with regard to Licensor's business activities with Lilly, or if
any request is made to Licensor, its employees or agents by any Lilly
employees or members of their families for gifts or gratuities of any kind,
Licensor agrees to immediately notify Lilly Procurement Management.
Licensor certifies by execution of this Agreement that it knows of no
material gifts or gratuities, or any kind whatsoever, paid to Lilly
employees or members of their families by Licensor, Licensor's employees,
or agents during the past two (2) years, except as otherwise set forth in
writing to Lilly Procurement Management as an exhibit to this Agreement.
Licensor agrees to immediately notify Lilly Procurement Management in
writing of any violations of this subsection.
11.7. PENDING LITIGATION. Licensor represents and warrants to Lilly that
there is no action, suit, claim, investigation, or proceeding pending, or
to the best of Licensor's knowledge, threatened against, by or affecting
Licensor or the Product which, if adversely decided, might adversely affect
Licensor's ability to enter into this Agreement, Licensor's performance of
its obligations herein, or Lilly's use of the Software. Licensor further
represents and warrants that it does not know of any basis for any such
action.
11.8 CHANGE OF CONTROL WARRANTY. Licensor represents and warrants to Lilly
that no change of control with respect to Licensor is being considered,
planned or pending by the Board of Directors or management, or to its
knowledge the shareholders, of Licensor or by any affiliate of Licensor.
11.9 DEBARMENT. Licensor represents and warrants that Licensor, and to the
best of its knowledge its officers, directors, employees and agents, have
not been debarred under any federal, state or local law, regulation, rule
or order, including, but not limited to, the Generic Drug Enforcement Act
of 1992. In the event any pending proceeding or threatened debarment of
Licensor or its officers, directors, employees or agents, Licensor shall
immediately notify Lilly of such proceeding or threatened debarment.
11.10 * . In the event of * caused by the Software or Software failure,
including, but not limited to, a Software failure resulting from an error,
malfunction or overloading, Licensor shall *.
11.11 FINANCIAL STATEMENTS. As of the date provided, Licensor represents
and warrants that all schedules, documents, financial statements and
materials provided to Lilly as part of any due diligence requests or RFP,
if any, contain no untrue statement of material fact or omit a material
fact necessary to make the statements contained therein not misleading. In
the event that financial statements are provided to Lilly, as of the date
provided, the financial statements present fairly and accurately in all
material respects the financial position of Licensor, the results of its
operations and costs and expenses for the periods specified and have been
prepared in conformity with Generally Accepted Accounting Principles. Upon
request by Lilly, Licensor agrees to provide Lilly with copies of its
audited annual financial statements and unaudited quarterly financial
statements as part of Lilly's ongoing vendor management program.
12. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, REGARDING OR RELATING TO * HEREUNDER OR IN CONNECTION
HEREWITH. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. * REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT
LIMITED TO STATEMENTS REGARDING * WHETHER MADE * OR OTHERWISE, WHICH IS
NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY
LICENSOR FOR * .
13. TERM. The License granted pursuant to this Agreement shall commence upon
execution of this Agreement and shall continue * , subject to the terms of
this Agreement unless terminated in accordance with the provisions detailed
herein.
14. TERMINATION. This Agreement and the License may be terminated as follows:
14.1. By Licensor upon * for the material breach by Lilly of any of its
obligations under this Agreement if Lilly has not cured such breach within
such notice period. Licensor shall not be permitted to terminate this
Agreement or any License granted hereunder in the event Lilly breaches its
obligations relating to * *
14.2. If Licensor substantially fails to perform in accordance with its
obligations under this Agreement, Lilly may notify Licensor of its breach
of this Agreement. Within * following such notice, Licensor shall * such
failure to perform and shall upon correction immediately notify Lilly.
Lilly may terminate this Agreement if Licensor does not correct such
failure to perform * . Lilly also may terminate this Agreement if any
representation, warranty or obligation contained or referred to herein has
been materially
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Software License Agreement -- December, 2000 Edition 1.0
5
breached, provided that Licensor has failed to cure such breach *.
14.3. * after termination of this Agreement pursuant to this Section, Lilly
shall immediately discontinue further use of the Software and destroy all
such copies of the Software. Lilly shall, upon written request by Licensor,
provide Licensor with written certification indicating the destruction of
all such copies of the Software in Lilly's possession or under its custody
or control.
14.4. Without in any way prejudicing any legal relief or remedy, upon
termination by Lilly pursuant to this Section, Lilly, shall receive from
Licensor at * for the licenses Lilly has paid for and a * of amounts paid
hereunder by Lilly for any *.
14.5. DATA RIGHTS UPON TERMINATION. Upon termination of this Agreement,
Licensor grants Lilly *.
14.6. *. The * Agreement attached hereto as Exhibit 2 and incorporated
herein by reference shall apply to all Products licensed or sold to Lilly
hereunder as set forth in Appendix A, shall become effective upon * by
Lilly. Notwithstanding anything else in the Agreement, if Lilly * it shall
not result in * this Agreement.
15. SURVIVAL. The provisions in Sections 5, 8, 9, 11, and 16 through 30 shall
survive acceptance and, payment under, and termination of, this Agreement
16. USE OF NAME AND PUBLICITY. Licensor agrees that it shall not, without prior
written consent of Lilly in each instance, use in advertising, publicity or
otherwise the name of Lilly, or any partner or employee of Lilly, nor any
trade name, trademark, trade device or simulation thereof owned by Lilly,
or represent, directly or indirectly, that any product or any service
provided by Licensor has been approved, recommended, certified, or endorsed
by Lilly. Licensor and Lilly agree not to advertise any affiliation with
each other under this Agreement and not to publicly reveal the existence of
this Agreement or any of the terms of this Agreement, without the prior
written consent of the parties. Upon Lilly written consent, *, Licensor
may *.
17. CONFIDENTIALITY, PROPRIETARY NATURE OF INFORMATION. The parties hereto
acknowledge that all information and documents disclosed by a party, or
which come to the receiving party's attention during the course of its
performance of its obligations under this Agreement, constitute a valuable
asset of and are proprietary to the disclosing party. Therefore, each party
shall keep confidential and not disclose or otherwise make available to any
third party any confidential information, advice or material of any nature
that is provided or made available by the other party, including but not
limited to, any written reports or other data, without the prior written
consent of the other party. This provision shall survive termination of
this Agreement.
This section shall not apply to any information that: (i) is in or comes
into the public domain through no breach by the recipient of the
information of its obligations under this Agreement; (ii) the recipient
acquires from a third party who owes no obligations of confidence to the
other party to this Agreement in respect thereof; (iii) was already known
to the recipient at the time it received such information from the other
party to this Agreement as shown by the recipient's prior written records;
or (iv) is independently developed by the receiving party without use of
the other party's confidential information.
If either Licensor or Lilly is requested or required by any legal or
investigative process to disclose any information that it is not permitted
to disclose, that party shall provide the other with prompt notice of each
such request and the information requested so that the other party may seek
to prevent disclosure or the entry of protective order. If disclosure is
required and a protective order is not obtained, the party from whom
disclosure is required shall disclose only such information that it is
advised by its counsel is legally required to be disclosed.
Due to the nature of the confidential information, the parties shall have
the right to seek equitable relief to enforce any right arising hereunder
or to prevent or cure any breach of this Section, without in any way
prejudicing any available legal relief. Such equitable relief may include,
but is not limited to, the seeking of a temporary or permanent injunction,
restraining order or order for specific performance, and may be sought with
or without prior notice, depending on the circumstances.
18. INDEMNIFICATION.
18.1. INFRINGEMENT INDEMNIFICATION. In the event of an claim by a third
party against Lilly that any Software infringes a patent, or any copyright
or trade secret, Licensor shall indemnify, defend and hold Lilly harmless
from any loss, cost, liability or expense, including reasonable attorneys'
fees arising from such claim. If, as a result of any such claim of
infringement, Licensor or Lilly is enjoined from using any Product and/or
Documentation, or if Licensor believes that the Software is likely to
become the subject of a claim of infringement, Licensor will, at its option
and its expense: (i) procure for Lilly the right to continue using the
Product and/or Documentation; or (ii) replace or modify the Product and/or
Documentation so that it becomes non-infringing (which modification or
replacement shall not adversely affect the applicable specifications for,
or the use or operation by Lilly of, the Product and/or Documentation); or
(iii) if the Product and/or Documentation is purchased, and the other
options stated are not practicable, repurchase the Product and/or
Documentation from Lilly; or (iv) if the Product and/or Documentation is
licensed, and the other options stated are not practicable, remove such
Product and/or Documentation from Lilly's site(s) and refund to Lilly
licenses fees paid by Lilly for the Software *, and release Lilly from any
further liability under this Agreement. This provision will survive
termination of this Agreement. THE FOREGOING STATES *.
18.2 GENERAL INDEMNIFICATION. Each party (the "Indemnifying Party") shall
defend, indemnify, and hold the other party and its Affiliates, and the
officers, directors, agents, employees and assigns or successors of each
(the "Indemnified Party"), harmless from and against any and all claims,
demands, suits, judgments, losses, or expenses of any nature whatsoever
(including attorney's fees) arising directly or indirectly form or out of:
(i) any negligent act, error, or omission of the Indemnifying Party, its
subcontractors or their respective officers, directors, agents,
subcontractors, invitees or employees; (ii) any breach of the Indemnifying
Party's obligations or representations as set forth herein; (iii) * (iv)
injuries to persons (including death) or loss of, or damage to, property,
occasioned by negligence, unlawful act, or willful misconduct of the
Indemnifying Party's personnel, subcontractors, or agents. Except for a
party's liabilities as set forth in Section 18.1, and 17 of this Agreement,
any damages that either party is required to pay for any reason whatsoever
and regardless of the form of action, in the aggregate, shall be *. In
addition, Lilly shall indemnify and hold Licensor and its affiliates,
directors, officers, employees and agents (including successors and
assigns) harmless against any 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 Product was used and (ii) any product derived from or
based on such clinical trial or Investigational Product. Notwithstanding
the foregoing, if any claim against Licensor for breach of this Agreement
is a claim covered by any insurance policy maintained by Licensor, any
recovery of proceeds under such policy shall be paid to Lilly to the extent
Lilly's damages exceed the foregoing limitation of liability. Licensor
shall vigorously pursue any applicable policy claim as requested by Lilly.
Xxx Xxxxx and Company
Software License Agreement -- December, 2000 Edition 1.0
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18.3 Except for the obligations in Section 17, neither Licensor nor Lilly
shall be liable to the other party for any special, punitive or
consequential damages, or loss of profits arising out of or in connection
with their respective obligations under this Agreement.
19. ASSIGNMENT. The duties under this Agreement may not be delegated, and the
rights under this Agreement may not be assigned, to any third party in
either case without the prior written consent of the non-assigning party,
which consent shall not be unreasonably withheld; provided, however, that
the either party may assign its rights and delegate its duties hereunder,
with notice to but without consent of the other party, to any corporate
successor to such party by merger, purchase of assets and assumption of
liabilities, acquisition, reorganization, or otherwise, or to any
Affiliate. Notwithstanding the foregoing, in no event shall * under this
Agreement in whole or in part * in connection with *.
20. ADDITIONAL PROVISIONS. Additional provisions, if any, are set forth in
Appendix A.
21. AUDIT PROVISION. During the term of this Agreement Lilly will have the
right, at its expense and upon not less than five (5) working days prior
written notice, to audit Licensor's systems and services, with specific
emphasis on Licensor's security and change control procedures. Such audit,
which may be conducted by Lilly personnel under obligations of
confidentiality or by an independent auditing firm that Licensor has
approved, will not interfere unreasonably with Licensor's business
activities, and will be conducted no more than once per calendar year,
unless Lilly has received a request from the U.S. Food and Drug
Administration (or agency with similar regulatory authority and
jurisdiction over Lilly's business), or unless a previous audit has
disclosed a material non-conformance to the standards required by the
appropriate agencies. If the audit shows material non-conformance to the
obligations set forth in this Agreement, then Licensor will * as soon as
practicable. If the non-conformance continues for *, then Lilly shall have
the option to declare Licensor in breach of this Agreement. Lilly will use
information received during an audit solely for the purposes of the
Agreement and will otherwise maintain the confidentiality of such
information. In addition, upon request, Licensor shall make available to
the FDA all records required by governmental regulations related to the
Software and any data or results produced by the Software. In any
governmental or regulatory agency gives notice of its intention to conduct
an audit or take any other regulatory actions with respect to the Software
or any data or results produced by the Software, Licensor shall promptly
give Lilly notice thereof, and Lilly shall have the right to be present at
any such audit or regulatory action.
22. UCITA. Licensor and Lilly hereby acknowledge and agree that any provisions
of any state law adopting exactly or in modified form the Uniform Computer
Information Transactions Act ("UCITA") shall not be applicable to this
Agreement. Furthermore, both Licensor and Lilly waive any and all rights
arising from any such law.
23. CHOICE OF LAW AND VENUE. This Agreement and all matters arising out of or
relating to this Agreement shall be governed by and construed in accordance
with the laws of the State of Indiana, excluding all choice of law
provisions. All proceedings relating to or arising out of the subject
matter hereof shall be maintained exclusively in the courts situated in
Xxxxxx County, Indiana, and Licensor hereby consents to personal
jurisdiction and venue therein and hereby waives any right to object to
personal jurisdiction or venue therein.
24. ENTIRE AGREEMENT. This Agreement, and all Exhibits, Schedules and
Attachments constitutes the entire agreement between the parties regarding
its subject matter. Any modification of this Agreement will be effective
only if it is in writing and signed by the parties.
25. WAIVER. None of the conditions of the Agreement shall be considered waived
unless such waiver is in writing and signed by the waiving party. No such
waiver shall be a waiver of any past or future default, breach or
modification of any of the conditions of the Agreement unless expressly
stipulated in such waiver.
26. SEVERABILITY. If any provision in this Agreement is held to be invalid,
void, or unenforceable, the remaining provisions shall nevertheless
continue in full force.
27. NOTICES. Any written notices to be given hereunder by either party shall be
deemed effective upon personal delivery or upon mailing the notice to the
party to be served at the address appearing in Appendix B.
28. FORCE MAJEURE. Neither party shall be liable to the other for failure to
perform under this Agreement if said failure results, directly or
indirectly, from government action or inaction, labor disputes, mechanical
or electrical breakdown, or natural disaster.
29. HEADINGS. The headings in this Agreement are solely for convenience of
reference and shall not affect its interpretation.
30. AMBIGUOUS TERMS. Any ambiguities in this Agreement will not be strictly
construed against the drafter of the language concerned but will be
resolved by applying the most reasonable interpretation under the
circumstances, giving full consideration to the intentions of the parties
at the time of contracting. This Agreement will not be construed against
any party by reason of its preparation.
Xxx Lilly and Company
Software License Agreement -- December, 2000 Edition 1.0
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APPENDIX A - FEES AND ADDITIONAL PROVISIONS
I. FEES.
1. DESCRIPTION OF * SERVICES
Annual
Quantity Description Unit Cost Total Cost Maintenance
-------- ------------------------------------- --------- ---------- -----------
* * * *
* * * *
TOTAL: * *
2. PAYMENT FOR * SERVICES
*
II. ADDITIONAL PROVISIONS.
*
Xxx Xxxxx and Company
Software License Agreement -December, 2000 Edition 1.0
2
EXHIBIT 2: *
This * Agreement ("* Agreement") is subject to all terms and conditions of the
Software License Agreement entered into by and between Lilly and Licensor on
March ___, 2001 ("License Agreement").
WHEREAS, Lilly wishes to obtain * from Licensor for the Product(s) specified in
the License Agreement; and
WHEREAS, Licensor wishes to provide * for the Product(s) on the terms and
conditions described in this * Agreement;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
Terms in this * Agreement which are capitalized have the meanings set forth
below, as defined elsewhere in this * Agreement or in the License
Agreement.
ERROR means an instance of failure of the Product to be operative. An Error
is a Class 1 Error if it renders continued use of the Product commercially
infeasible in Lilly's reasonable judgment. An Error is a Class 2 Error if
it makes continued use of the Product seriously inconvenient and
substantially reduces its value to Lilly, in Lilly's reasonable judgment.
All other Errors are Class 3 Errors; in particular, all Documentation
shortcomings and deviations and cosmetic errors that do not have the
economic consequences defined for Class 1 and Class 2 Errors shall be
deemed Class 3 Errors.
* shall include the * described herein.
* shall include, without limitation, providing a means for *.
* shall be *. In addition, * . Beginning on January 1, 2002, *. Until
December 31, 2001, Lilly may purchase * .
2. TERM AND TERMINATION.
2.1. TERM. The initial term of this * Agreement shall commence * for the
Product covered by this * Agreement and continue through * (the " * Term").
Each subsequent term shall be for a period of * and this * Agreement *
unless earlier terminated as provided herein.
2.2. TERMINATION BY LILLY. After * Lilly may * the Product covered by this
* Agreement at any time upon thirty (30) days prior notice to Licensor,
whereupon the obligations of the parties under this * Agreement relating to
such Product not expressly surviving shall cease.
2.3. TERMINATION BY LICENSOR. If Licensor no longer continues to make *
thereto generally available to its customers for such Product, the
obligations set forth in Section 5.9 * of this * Agreement shall apply.
Thereafter, in either event, Licensor may terminate the provision of * to
such particular Product.
2.4. TERMINATION BILLING. Licensor shall refund any prepaid charges for *
pro rata from the effective date of any permitted termination. Lilly shall
pay any charges for * rendered pro rata to the effective date of any
permitted termination.
3. CHARGES. Licensor shall invoice Lilly for charges due and payable for * as
set forth on Exhibit A * prior to each annual anniversary, and Lilly shall
pay undisputed invoices *. Lilly shall not be obligated for any * of any
kind rendered by Licensor except in accordance with this * Agreement.
4. REINSTATEMENT. After any * Lilly may * upon the terms and conditions of
this * Agreement. The cost of * shall be * and, in addition, a penalty in
the amount of * Licensor * had Lilly continued * during the period of *.
5. * RESPONSIBILITIES.
5.1. * Licensor shall provide Lilly the * described in this * Agreement
with respect to each covered Product, including * Licensor shall correct
all Errors reported by Lilly by means of the procedures established by this
* Agreement. * shall be performed in a timely and professional manner by
qualified maintenance technicians familiar with each Product and its
operation. Licensor shall provide, upon Lilly's request, periodic reports
on the status of * requested by Lilly.
5.2. * TIME. Licensor shall provide * during the *. Licensor will also have
* outside of the * from whom Lilly may request *. * both in and outside of
the * , shall be provided as set forth below.
5.3. * Licensor shall provide to Lilly, and keep current, a * for Lilly to
*. Such * shall include: (1) the * which shall be the * and (2) the * to
provide the *; provided however that Lilly must follow the procedures for
Error Reporting set forth below. Lilly shall * at each site that may *.
5.4. ERROR REPORTING. If Lilly desires * Lilly shall * in accordance with
the *. Licensor's duly qualified personnel shall respond to Lilly's * with
* Product * beginning * of Lilly's * or, as to *, within *. If Licensor
fails * or if Lilly is unable, * to *; or if *, from the is * when Lilly *
with Licensor *, then Lilly shall *
XXX XXXXX AND COMPANY
SOFTWARE LICENSE AGREEMENT -- DECEMBER, 2000 EDITION 1.0
4
* until *
5.4.1. After Lilly *, Licensor shall provide * as soon as possible.
Lilly shall consult with Licensor to *. If Licensor has not * on
the same day as *, Lilly shall submit to Licensor a * and such
other data as Licensor may request and is reasonably available to
Lilly in order to *.
5.4.2. For *, Licensor shall provide * reasonable in Lilly's judgment,
in any event *. Licensor shall, upon Lilly's request and without
limitation, * to work with Lilly * without interruption (i.e., 24
hours per day) until Licensor * Lilly shall pay travel and
expense costs in connection herewith in accordance with Lilly's
contractor travel policy.
5.4.3. For *, Licensor shall provide * reasonable in Lilly's judgment,
in any event *. Licensor shall, upon Lilly's request and without
limitation, a * to work with Lilly * during Lilly's regular
business hours until Licensor * reasonable in Lilly's judgment.
Lilly shall pay travel and expense costs in connection herewith
in accordance with Lilly's contractor travel policy.
5.4.4. For *, Licensor shall * no later than the next Upgrade, unless
Licensor has scheduled release of such Upgrade *, in which case
Licensor shall * in the following Upgrade.
5.5. UPDATES AND UPGRADES. Licensor shall provide to Lilly as part of *
Updates and Upgrades to the Product *, whenever Licensor makes such Updates
and Upgrades generally available to its customers.
5.6. CONTINUING *. Lilly may decline to install an Update or Upgrade
offered by Licensor. In such event, Licensor shall continue the * for the
most current Version of the Software and the immediately preceding Version.
For an additional annual fee *, for such * ("* Fee"), Licensor shall
continue the * for * Product that is installed at Lilly, subject to
Licensor's right to terminate this * Agreement as permitted in Section 2.3
Termination by Licensor.
5.7. COMPATIBILITY. Licensor shall ensure that the technical environment
recommendations for the operating system software to be used in conjunction
with the Software shall at all times be a supported version of said
software.
5.8. EARLY VERSION. Licensor shall, upon Lilly's request, provide early
versions of Updates or Upgrades AS IS with no warranty or * prior to
general release in order to provide development feedback. At Lilly's
request, Licensor will *. Lilly may send a reasonable number of *. Lilly
shall pay all out-of-pocket expenses associated therewith.
5.9 *. If the provision of * covered by this * Agreement is * as allowed in
Section 2.3 Termination by Licensor, Licensor shall (ii) * and (ii) use
commercially reasonable efforts to find for Lilly a third party acceptable
to Lilly to offer * at a price comparable to the charges set forth herein
* Lilly uses the Product commercially in the conduct of its business.
Licensor shall assist Lilly to achieve a smooth transition to any other
vendor of * after any termination of the provision of * covered by this *
Agreement, or of this * Agreement.
5.10 MODIFICATIONS. Licensor shall provide, at Lilly's request, a total
of *
6. LILLY RESPONSIBILITIES.
6.1. SUSPECTED ERRORS. If Lilly discovers any suspected Error in the
Program, Lilly shall analyze the suspected Error to determine if it is the
result of Lilly's misuse or misunderstanding of the Product or by the
performance of a third party before seeking Licensor's assistance.
6.2. UNAUTHORIZED MODIFICATIONS. In the event Licensor determines that the
problem reported by Lilly is directly related to unauthorized alterations
of the Product by Lilly or the performance of a third party, then Licensor
may charge for employee time expended at the current time and material
rates agreed upon less discount in addition to reasonable out-of-pocket
expenses; or at Lilly's option; Licensor shall be released from maintenance
obligations for the modified portion of the Product.
7. BREACH AND REMEDIES. If Licensor does not deliver the correction for the
suspected Error within the times allowed by Section 5, * Responsibilities,
even if Licensor has delivered a reasonable workaround, Licensor shall
provide, within ten (10) days after such allowed times, a written analysis
of the problem and a written plan to supply Lilly with a correction that
will not degrade performance or functionality within ten (10) days after
such allowed times. If Lilly rejects such plan and Licensor has not
delivered a correction that will not degrade performance or functionality
within ten (10) days of Lilly's notice of rejection, Licensor shall be
considered to be in breach.
Xxx Xxxxx and Company
Software License Agreement -- December, 2000 Edition 1.0
0
XXXXXXXX X - NOTICES
If to Lilly:
Global Sourcing Manager - IT Procurement
Xxx Xxxxx and Company
Lilly Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
With a copy to:
Xxx Xxxxx and Company
Lilly Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
If to Licensor:
Phase Forward Incorporated
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
With a copy to:
Phase Forward Incorporated
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Xxx Xxxxx and Company
Software License Agreement -- December, 2000 Edition 1.0
3
