FORM OF INFORMATION TECHNOLOGY AGREEMENT DATED AS OF [·] by and between ABBOTT LABORATORIES and ABBVIE INC.
Exhibit 10.8
FORM OF INFORMATION TECHNOLOGY AGREEMENT
DATED AS OF [·]
by and between
XXXXXX LABORATORIES
and
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS |
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ARTICLE II. SERVICES |
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Section 2.01 |
Services |
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Section 2.02 |
Transition Services Agreements and Conflicts |
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Section 2.03 |
Performance of Services |
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Section 2.04 |
Charges for Services and Performance of Separation Projects |
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Section 2.05 |
Change Control Procedures |
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Section 2.06 |
Transitional Nature of Services |
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Section 2.07 |
Cooperation |
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Section 2.08 |
Use of Third Parties |
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Section 2.09 |
Security Procedures |
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Section 2.10 |
Consents |
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Section 2.11 |
Transition Committee |
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ARTICLE III. OWNERSHIP AND LICENSE RIGHTS IN MATERIALS |
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Section 3.01 |
Owned Materials |
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Section 3.02 |
Developed Materials |
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Section 3.03 |
General Rights and Obligations Regarding Materials |
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ARTICLE IV. BILLING; TAXES |
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Section 4.01 |
Procedure |
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Section 4.02 |
Late Payments |
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Section 4.03 |
Taxes |
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Section 4.04 |
No Set-Off |
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ARTICLE V. TERM; TERMINATION OF WORK SCHEDULES; TRANSFER ASSISTANCE |
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Section 5.01 |
Term |
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Section 5.02 |
Termination of Work Schedules |
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Section 5.03 |
Post-Termination Services |
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ARTICLE VI. CONFIDENTIALITY; PROTECTIVE ARRANGEMENTS |
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Section 6.01 |
Confidentiality Obligations |
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Section 6.02 |
No Release, Return or Destruction |
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Section 6.03 |
Third-Party Information; Privacy or Data Protection Laws |
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Section 6.04 |
Protective Arrangements |
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ARTICLE VII. MISCELLANEOUS |
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Section 7.01 |
Mutual Cooperation |
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Section 7.02 |
Limitations on Liability |
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Section 7.03 |
Indemnification Procedures |
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Section 7.04 |
Force Majeure |
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Section 7.05 |
Acceptance |
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Section 7.06 |
Audit Assistance |
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Section 7.07 |
Survival of Covenants |
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Section 7.08 |
Title to Intellectual Property |
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Section 7.09 |
Subsidiaries |
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Section 7.10 |
Responsibility for Expenses |
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Section 7.11 |
Headings |
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Section 7.12 |
Independent Contractors |
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Section 7.13 |
No Third Party Beneficiaries |
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Section 7.14 |
Governing Law |
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Section 7.15 |
Disputes; Equitable Relief |
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Section 7.16 |
Interpretation |
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Section 7.17 |
Survival |
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Section 7.18 |
Assignment |
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Section 7.19 |
Amendment |
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Section 7.20 |
Waivers of Default |
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Section 7.21 |
Notices |
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Section 7.22 |
Counterparts |
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Section 7.23 |
Entire Agreement |
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Section 7.24 |
Corporate Power |
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Section 7.25 |
Signatures and Delivery |
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Section 7.26 |
Severability |
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Section 7.27 |
Further Assurances |
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Section 7.28 |
Public Announcements |
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Section 7.29 |
Mutual Drafting |
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THIS INFORMATION TECHNOLOGY AGREEMENT, dated as of [·], is by and between XXXXXX LABORATORIES, an Illinois corporation (“Xxxxxx”), and ABBVIE, INC., a Delaware corporation (“AbbVie”).
RECITALS:
WHEREAS, the board of directors of Abbott has determined that it is appropriate and advisable to separate Xxxxxx’x research-based pharmaceuticals business from its other businesses;
WHEREAS, in order to effectuate the foregoing, Xxxxxx and AbbVie have entered into a Separation and Distribution Agreement, dated as of [·], 2012 (the “Separation and Distribution Agreement”), which provides for, among other things, the contribution from Abbott to AbbVie of certain assets, the assumption by AbbVie of certain Liabilities from Abbott, the distribution by Abbott of AbbVie common stock to Abbott shareholders, and the execution and delivery of this Agreement and certain other agreements in order to facilitate and provide for the foregoing, in each case subject to the terms and conditions set forth therein;
WHEREAS, in order to ensure an orderly transition under the Separation and Distribution Agreement it will be necessary for each of the Parties (as defined herein) to cooperate to provide for the separation of various information technology systems and services that are currently shared between the Parties, are provided by one Party to the other or are planned to be implemented by both Parties; and
WHEREAS, the Parties intend that all separation activities to be completed under this Agreement shall be completed by the end of the two-year term of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, and subject to and on the terms and conditions herein set forth, the Parties hereby agree as follows:
ARTICLE I.
DEFINITIONS.
For purposes of this Agreement, the following terms shall have the following meanings:
“Abbott” has the meaning set forth in the Preamble.
“Abbott Business” has the meaning set forth in the Separation and Distribution Agreement.
“Abbott Owned Materials” has the meaning set forth in Section 3.01(a).
“AbbVie” has the meaning set forth in the Preamble.
“AbbVie Business” has the meaning set forth in the Separation and Distribution Agreement.
“AbbVie IT Agreement” means any IT Agreement which is held in the name of Abbott or any Abbott Subsidiary, and which is used exclusively in connection with, or relates solely to, the AbbVie Business.
“AbbVie Owned Materials” has the meaning set forth in Section 3.01(b).
“Additional Service” has the meaning set forth in Section 2.01.
“Agreement” means this Information Technology Agreement and each of the Schedules hereto.
“Ancillary Agreements” has the meaning set forth in the Separation and Distribution Agreement.
“Assignment Efforts” has the meaning set forth in Section 2.10(b).
“Change of Control” has the meaning set forth in the Separation and Distribution Agreement.
“Charges” has the meaning set forth in Section 2.04(a).
“Consents” has the meaning set forth in the Separation and Distribution Agreement.
“Derivative Work” means a work based on one or more preexisting works, including a condensation, transformation, translation, modification, expansion or adaptation that, if prepared without authorization of the owner of the copyright of such preexisting work, would constitute a copyright infringement under applicable law, but excluding the preexisting work.
“Developed Materials” means any Materials (including software), or any modifications, enhancements or Derivative Works thereof, which (i) are jointly developed by or on behalf of the Parties or any of their Subsidiaries in connection with or as part of the Services and (ii) are not otherwise Abbott Owned Materials or AbbVie Owned Materials.
“Effective Time” has the meaning set forth in the Separation and Distribution Agreement.
“Expiration Date” has the meaning set forth in the Section 5.01.
“Governmental Authority” has the meaning set forth in the Separation and Distribution Agreement.
“Information” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including
attorney work product), and other technical, financial, employee or business information or data.
“IT Agreement” means any software license or Third Party service agreement that is: (a) used by either Party or its Subsidiaries (i) to provide Services or Materials under this Agreement; or (ii) used to provide any information technology services under the TSA; or (b) required in connection with the operation of the information technology systems and services of the AbbVie Business.
“Joint Work Schedule” has the meaning set forth in Section 2.04(a).
“Liabilities” has the meaning set forth in the Separation and Distribution Agreement.
“Materials” shall mean all computing, networking, telecommunications and other equipment (firmware and hardware); all software programs and programming (and all modifications, replacements, upgrades, enhancements, documentation, materials and media related thereto), including all machine readable and object code, and all source code, utilities, tools and validation packages; and all other literary works, other works of authorship, specifications, design documents and analyses, processes, methodologies, programs, program listings, programming tools, user manuals, documentation, reports, drawings, databases, machine readable text and files, data and similar items.
“Parties” means the parties to this Agreement. “Party” means each Party to this Agreement.
“Person” has the meaning set forth in the Separation and Distribution Agreement.
“Primary Beneficiary” means, with respect to Services set forth in any Work Schedule, the Party for which the provision of such Services would facilitate such Party’s ability to operate independently.
“Prime Rate” has the meaning set forth in the Separation and Distribution Agreement.
“Procurement Project” has the meaning set forth in Error! Reference source not found.
“Provider” has the meaning set forth in Section 5.01.
“Recipient” has the meaning set forth in Section 5.01.
“Representative” has the meaning set forth in Section 6.01.
“Separation and Distribution Agreement” has the meaning set forth in the Recitals.
“Separation Project” means each individual project that is described in the Separation Projects Plan, and that is or will be described in greater detail in one or more Work Schedules.
“Separation Projects Plan” means the high level description of information technology separation projects and the associated timeline for completing those projects that the Parties will
undertake pursuant to this Agreement to accomplish the separation of the information technology systems and services, as such initial list is set forth in Schedule A, and as the same may be amended from time to time.
“Service Extension” has the meaning set forth in Section 5.01.
“Services” means the services related to the separation of Xxxxxx’x and AbbVie’s information technology systems and services, including any Additional Services.
“Shared IT Agreement” means any IT Agreement that is held in the name of Abbott or any Abbott Subsidiary, which is used in connection with the Abbott Business and the AbbVie Business. A list of Shared IT Agreements identified by the Parties to date is set forth in Schedule B.
“Subsidiary” has the meaning set forth in the Separation and Distribution Agreement.
“Taxes” has the meaning set forth in the Separation and Distribution Agreement.
“Third Party” means any Person other than Abbott, any Abbott Subsidiary, AbbVie and any AbbVie Subsidiary.
“Third Party Payment” has the meaning set forth in Section 2.10(b).
“Transition Committee” has the meaning set forth in the Separation and Distribution Agreement.
“TSA” has the meaning set forth in Section 2.02.
“U.S.” or “United States” has the meaning set forth in the Separation and Distribution Agreement.
“Work Schedule” means each document in the form set forth in Schedule C that is executed by the Parties pursuant to this Agreement, including each applicable “RFSS”, “Contract” or similar document referenced on such Work Schedule, that details the work effort and further describes the Services to be performed by Abbott and/or AbbVie in connection with a particular Separation Project(s).
ARTICLE II.
SERVICES.
Section 2.01 Services. Each of the Parties agrees to provide, or cause its respective Subsidiaries to provide, the applicable Services set forth in any Work Schedule to Abbott or AbbVie, respectively, and/or any of their Subsidiaries as designated in the Work Schedule. Each of the Parties further agrees to use good faith in negotiating any Work Schedules which are not completed as of the date hereof. The Parties will cooperate in good faith to identify any additional services that may be reasonably required to facilitate a smooth transition (each such service, an “Additional Service”) and will negotiate one or more additional Work Schedules setting
forth such services, with the terms thereof to be determined by the Parties. This Agreement is a master agreement. Each of the Parties, respectively, shall be responsible and liable for all the obligations under this Agreement of each of their respective Subsidiaries that performs Services hereunder.
Section 2.02 Transition Services Agreements and Conflicts. The Parties have entered into that certain U.S. Transition Services Agreement and that certain Ex-U.S. Transition Services Agreement (collectively, the “TSA”) dated as of the same date as this Agreement. The TSA is intended to cover all services described therein that the Parties will require to continue to operate their respective businesses after the date hereof, including, without limitation, information technology services. This Agreement is intended to cover all additional work effort that must be performed, and Materials that must be developed or procured, to separate the information technology systems and services that (i) are currently shared between the Parties and/or their respective Subsidiaries, (ii) are currently provided by one of the Parties or one or more of its Subsidiaries, to the other Party or one or more of its Subsidiaries, under the TSA, or (iii) are to be implemented by mutual agreement of the Parties. If there is a conflict regarding Services provided under this Agreement, and similar services described in the TSA, this Agreement shall govern and control over such Services. If there is a conflict between the provisions of this Agreement and those of the Separation and Distribution Agreement, this Agreement shall govern and control with respect to the subject matter addressed in this Agreement.
Section 2.03 Performance of Services.
(a) Each of the Parties shall, and shall cause its Subsidiaries to, perform its duties and responsibilities hereunder in good faith and in a timely manner. Neither Abbott nor AbbVie, nor any of their respective Subsidiaries, shall be liable or held accountable, in damages or otherwise, for any error of judgment or any mistake of fact or law or for anything that Abbott or AbbVie, or any of their respective Subsidiaries, does or refrains from doing in good faith, except in the case of their gross negligence or willful misconduct.
(b) Nothing in this Agreement shall require either Party or its Subsidiaries to perform or cause to be performed any Service in a manner that would constitute a violation of applicable law, the Abbott Code of Business Conduct or any existing contract or agreement with a Third Party. If either Party is or becomes aware of any such restriction, then such Party shall use commercially reasonable efforts to promptly send a Notice to the other Party of any such restriction.
(c) (A) Neither Party nor any of its Subsidiaries will be required to perform or to cause to be performed any of the Services for the benefit of any Third Party or any other Person other than the other Party under this Agreement, and its Subsidiaries, and (B) EXCEPT AS EXPRESSLY PROVIDED IN AN APPLICABLE WORK SCHEDULE, EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, THAT EACH PARTY ASSUMES ALL RISK AND LIABILITY ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE SERVICES PROVIDED TO IT AND THAT EACH PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, AND HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTY WHATSOEVER.
Section 2.04 Charges for Services and Performance of Separation Projects.
(a) Charges; Estimates. The Party that is the Primary Beneficiary of the Services shall bear the costs and expenses of the Services, and each Work Schedule shall specify the Party that shall bear the costs and expenses of the Services, including the acquisition, procurement, leasing or licensing of Materials, and all other costs and expenses associated with a Party completing a particular Separation Project (all such costs and expenses are collectively referred to as the “Charges”). The Parties shall cooperate to determine which Party is the Primary Beneficiary of each Additional Service. In the event that the Parties cannot agree on which Party is the Primary Beneficiary of an Additional Service, the Parties shall cooperate to apportion the applicable Charges specified on the Work Schedule between the Parties in a manner that is fair to each Party (each such Work Schedule, a “Joint Work Schedule”). Any dispute or disagreement over the Charges for an Additional Service shall be resolved pursuant to Section 7.15(a). The Charges for completing Separation Projects shall be borne by the Parties according to the terms set forth in Schedule D; provided, that the Charges shall exclude any and all amounts for services performed by a Third Party that is not an agent, supplier, subcontractor or independent contractor of the Party providing the Services under such Work Schedule. The Charges set forth in a Work Schedule shall be a good faith estimate of the charges for the Services covered by that Work Schedule, and shall neither be binding on the Party providing such estimate nor convert the Work Schedule into a fixed-price contract. Any such estimate is for informational purposes only, and the actual fees payable for any Services may be higher or lower than that estimate, with such higher amounts, if applicable, to be paid by the Party responsible for such Charges under the applicable Work Schedule. The Charges shall be calculated and billed in the local currency of the Party providing the Services.
(b) Reporting Obligations. The Parties shall be responsible for overseeing the Separation Projects and the progress of the Services in light of the estimated Charges. Each Party shall report to the other Party regarding the status of each Separation Project in the manner and with the frequency described in the applicable Work Schedule (including the identification of any known overages in the estimated Charges and an updated estimate to complete such Separation Project), and, in any event, no less frequently than monthly during the term of this Agreement. Unless otherwise agreed in writing, the Parties shall provide such reporting using the form of status report attached hereto as Schedule E.
Section 2.05 Change Control Procedures. During the term of this Agreement, Abbott and/or AbbVie may desire a change in the scope, timing and/or charges for the effort, including modifying, updating and/or refining any Work Schedule or the Separation Projects Plan. Requests for all changes shall be made in writing and delivered to the Parties. The Parties shall review the proposed change and: (i) approve it; (ii) return it with a request for more detail or information; or (iii) reject it. The Parties shall agree on any Charges for such change, including the charges for investigating such change if applicable. If the change is authorized, the Parties shall so indicate in writing, which writing shall constitute approval for the change and the applicable Charges. The writing shall also indicate the effect that the change will have on the other terms and conditions of the applicable Work Schedule(s).
Section 2.06 Transitional Nature of Services. The Parties acknowledge the transitional nature of the Services and agree to cooperate in good faith and to use commercially reasonable efforts to effectuate a smooth transition and completion of the Separation Projects.
Section 2.07 Cooperation. In the event that (i) there is nonperformance of any Service as a result of an event described in Section 7.04, or (ii) the provision of a Service would violate applicable law, the Parties agree to work together in good faith to arrange for an alternative means by which the Separation Project may be accomplished.
Section 2.08 Use of Third Parties.
(a) Third Parties Used to Provide the Services. Either Party may perform its obligations herein through its Subsidiaries or through agents, suppliers, subcontractors or independent contractors of such Party, or of its Subsidiaries; provided that each such agent, supplier, subcontractor or independent contractor (and the individual employees of such Persons) used by a Party shall be subject to the reasonable prior approval of the other Party. The Parties hereby approve the use of any of the suppliers listed in Schedule F; provided, however, that each Party reserves the right to reasonably approve or reject individual employees of such suppliers. In addition, if in connection with the provision of Services or Materials a Party uses any agent, supplier, subcontractor or independent contractor who has been fired, dismissed or relieved of its obligations by the other Party or its Subsidiary due to poor performance or other cause, the other Party shall be entitled to cause the hiring Party to promptly remove and replace such agent, supplier subcontractor or independent contractor.
(b) Third Parties Used For Matters Outside the Scope of the Services. Each Party shall also have the right to engage agents, suppliers, subcontractors or independent contractors to provide services that are outside the scope of the Services, provided that such Third Parties will not, either individually or in connection with one or more other agents, suppliers, subcontractors or independent contractors (including the Third Parties described in Section 2.08(a)), materially adversely affect the Services without the other Party’s reasonable consent; and provided, further, that the engaging Party shall be solely responsible for all such agents, suppliers, subcontractors or independent contractors.
(c) Terms Applicable to All Third Parties Used By a Party. Each Party shall cooperate with and work in good faith with the agents, suppliers, subcontractors and independent contractors engaged by the other Party in connection herewith or in connection with related services that require the cooperation of such Party. Such cooperation may include providing reasonable access to the facilities, systems, equipment and/or software required by the other Party to provide the Services or such related services, solely to the extent necessary for such agents, suppliers, subcontractors and independent contractors to perform the work assigned to them. The engaging Party shall cause all such agents, suppliers, subcontractors and independent contractors to comply with the other Party’s security and confidentiality requirements and technical policies and procedures. Notwithstanding anything in this Agreement to the contrary, a Party shall not be relieved of its obligations under this Agreement by use of any Subsidiaries, agents, suppliers, subcontractors or independent contractors.
Section 2.09 Security Procedures. Each Party’s respective security administration groups shall, subject to the reasonable approval of the other Party, establish and maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, unauthorized access or alteration of systems or Materials of the other Party which are (i) no less rigorous than those maintained by a Party for its own information of a similar nature, and (ii) adequate to meet the requirements of the other Party’s security policies and applicable law. In the event a Party discovers or is notified of a breach or potential breach of security relating to systems or Materials of the other Party, such Party will expeditiously under the circumstances notify the other Party, and will cooperate in the investigation and remediation of the effects of such breach or potential breach of security at its own expense.
Section 2.10 Consents.
(a) AbbVie IT Agreements. Subject to the Parties obtaining any required Consents, Abbott or the applicable Abbott Subsidiary shall assign to AbbVie or the applicable AbbVie Subsidiary any AbbVie IT Agreement. The assignment shall be subject to the terms of the Separation and Distribution Agreement, and the rights and obligations under such IT Agreement shall be AbbVie Assets and AbbVie Liabilities and, if applicable, Delayed Transfer Assets and Delayed Transfer Liabilities, as such terms are defined in the Separation and Distribution Agreement. The costs of obtaining any required Consent in connection with the assignment of any AbbVie IT Agreement shall be borne solely by Abbott if such assignment is effected prior to the Effective Time, and shall be borne solely by AbbVie if such assignment is effected following the Effective Time. If, despite using their commercially reasonable efforts, the Parties are unable to obtain a Consent in connection with an AbbVie IT Agreement, then, unless and until such Consent is obtained, the Parties shall use their commercially reasonable efforts to use mutually acceptable alternative approaches to provide the Services or to deliver substantially similar benefits at the sole cost and expense of AbbVie.
(b) Shared IT Agreements. Subject to the Parties obtaining any required Consents, Abbott or the applicable Abbott Subsidiary shall assign to AbbVie or the applicable AbbVie Subsidiary that portion of any Shared IT Agreement that relates to the AbbVie Business. The partial assignment shall be subject to the terms of the Separation and Distribution Agreement, and the rights and obligations under the assigned portion of such IT Agreement shall be AbbVie Assets and AbbVie Liabilities and, if applicable, Delayed Transfer Assets and Delayed Transfer Liabilities, as such terms are defined in the Separation and Distribution Agreement. If, despite using their commercially reasonable efforts, the Parties are unable to obtain a Consent in connection with a Shared IT Agreement, then, unless and until such Consent is obtained, the Parties shall use their commercially reasonable efforts to use mutually acceptable alternative approaches to provide the Services or to deliver substantially similar benefits at the sole cost and expense of Abbott, for Services in connection with the Shared IT Agreement provided prior to the Effective Time, and of AbbVie, for Services in connection with the Shared IT Agreement provided following the Effective Time. The Parties shall cooperate in obtaining Consents in connection with Shared IT Agreements in a manner which is substantially similar to such Parties’ efforts during the two month period prior to the date hereof (“Assignment Efforts”). Notwithstanding the foregoing in this Section 2.10(b), if the partial assignment of a Shared IT Agreement to AbbVie or an AbbVie Subsidiary will require a transfer fee to a Third Party (a “Third Party Payment”), then the Parties will use Assignment Efforts
to effect the partial assignment and make the Third Party Payment; provided that Abbott shall be responsible for such Third Party Payment only if such partial assignment is effected prior to the Effective Time and AbbVie shall be responsible for such Third Party Payment if such partial assignment is effected after the Effective Time; provided, however, that following the Effective Time, Third Party Payments to allow joint-use by Xxxxxx and AbbVie of a Shared IT Agreement prior to the partial assignment of such Shared IT Agreement shall be split equally between Xxxxxx and AbbVie. The use of the term “Assignment Efforts” in the previous sentence shall not be deemed to limit Xxxxxx’x responsibility for making Third Party Payments from the date hereof through the Effective Time.
(c) The Parties recognize that the ultimate resolution of assignments of Shared IT Agreements will require the agreement of three (3) parties (i.e., the Third Party, Xxxxxx and AbbVie) regarding the number of licenses to be assigned, and that, as of the date hereof, the number of licenses which Abbott has and which AbbVie requires is unknown. Accordingly, the Parties agree that the ultimate division of licenses between them shall be fair and equitable based upon their usage as of the date hereof. The Parties agree to use Assignment Efforts and work in good faith to assign the licenses in a timely manner as the number of licenses becomes known, or as the license assignments become critical path projects for AbbVie.
Section 2.11 Transition Committee. The Transition Committee may delegate the performance of any of its functions hereunder to one or more subcommittees or individuals designated by the Transition Committee.
ARTICLE III.
OWNERSHIP AND LICENSE RIGHTS IN MATERIALS.
Section 3.01 Owned Materials.
(a) Abbott shall be the sole and exclusive owner of Materials which are used in connection with the Services and are owned by Abbott, or licensed from Third Parties by Abbott, or any of its Subsidiaries, including all enhancements and Derivative Works of such Materials, including United States and foreign intellectual property rights in such Materials, and shall retain all of Xxxxxx’x, its Subsidiaries’ and Third Party licensors’ rights in such Materials (all such owned, licensed, developed and provided Materials, “Abbott Owned Materials”). Subject to the terms of any Consents, Abbott grants to AbbVie, its Subsidiaries and their contractors and agents a non-exclusive, non-transferable, worldwide, limited right and license to use, execute, reproduce, display, perform, modify and distribute the Abbott Owned Materials for the sole purpose of providing and/or receiving the Services during the term of this Agreement; provided that this license does not give AbbVie and its Subsidiaries, or their contractors or agents, the right, and AbbVie and its Subsidiaries, and their contractors and agents, are not authorized, to sublicense such Materials or use them for the benefit of other customers or for any other purpose without Xxxxxx’x prior written consent. Abbott may, in its sole discretion and upon such terms and at such prices as the Parties may agree, grant AbbVie a license to use the Abbott Owned Materials for other purposes and to sublicense such Materials.
(b) AbbVie shall be the sole and exclusive owner of Materials which are used in connection with the Services and are owned by AbbVie, or licensed from Third Parties by AbbVie, or any of its Subsidiaries, including all enhancements and Derivative Works of such Materials, including United States and foreign intellectual property rights in such Materials and shall retain all of AbbVie’s, its Subsidiaries’ and Third Party licensors’ rights in such Materials (all such owned, licensed, developed and provided Materials, “AbbVie Owned Materials”). Subject to the terms of any Consents, AbbVie grants to Abbott, its Subsidiaries and their contractors and agents a non-exclusive, non-transferable, worldwide, limited right and license to use, execute, reproduce, display, perform, modify and distribute the AbbVie Owned Materials for the sole purpose of providing and/or receiving the Services during the term of this Agreement; provided that this license does not give Abbott and its Subsidiaries or their contractors or agents, the right, and Abbott and its Subsidiaries, and their contractors and agents, are not authorized, to sublicense such Materials or use them for the benefit of other customers or for any other purpose without AbbVie’s prior written consent. AbbVie may, in its sole discretion and upon such terms and at such prices as the Parties may agree, xxxxx Xxxxxx a license to use the AbbVie Owned Materials for other purposes and to sublicense such Materials.
Section 3.02 Developed Materials.
(a) Ownership. The Parties shall jointly own all intellectual property rights in all Developed Materials. The Parties will, without limitation, retain the right to make, have made, use, lease, import, offer for sale, or sell, have sold and practice methods used in the creation or provision of products or services that incorporate the Developed Materials to the extent that such actions do not infringe upon the intellectual property rights of the other Party. Each Party shall retain the right to grant non-exclusive licenses to any intellectual property right in the Developed Materials without any payment or accounting to the other Party.
(b) Cost Sharing of Developed Materials. The Parties shall mutually agree on whether and in which countries to file and prosecute patent applications covering all jointly owned intellectual property in the Developed Materials, and to maintain patents granted thereunder; Each party shall have an opportunity to review and comment on any such filings prior to submission and to discuss the strategy for preparing, filing, prosecuting, maintaining and defending any such patent applications or resulting patents, and the Parties shall share equally any out-of-pocket costs and expenses incurred with respect to such actions.
(c) Embedded Materials. To the extent that Abbott Owned Materials or AbbVie Owned Materials are embedded in any Developed Materials by the owner of such Materials, the owner of such Materials shall not be deemed to have assigned its intellectual property rights in such owned Materials to the other Party, but subject to the terms and restrictions of any Consent, the owner of such embedded Materials hereby grants to the other Party and its Subsidiaries a worldwide, perpetual, irrevocable, non-exclusive, fully paid-up license, with the right to grant sublicenses, to use, execute, reproduce, display, perform, modify, enhance, distribute and create Derivative Works of such embedded Materials for the benefit and use of the other Party and its Subsidiaries for so long as such Materials remain embedded in such Developed Materials. Notwithstanding the foregoing, neither Party shall embed any Abbott Owned Materials or AbbVie Owned Materials into Developed Materials without the express written agreement of both Parties to do so, as set forth in the applicable Work Schedule. In addition,
should either Party incorporate into Developed Materials any intellectual property subject to Third Party patent, copyright or license rights, any ownership or license rights granted herein with respect to such Materials shall be limited by and subject to any such patents, copyrights or license rights; provided that, prior to incorporating any such intellectual property in any Materials, the Party incorporating such intellectual property in the Materials has disclosed this fact and obtained the prior written approval of the other Party and has obtained any Consents.
(d) Source Code and Documentation. If either Party requests that the source code for particular Materials be placed in escrow for the benefit of the requesting Party, then the Parties shall cooperate in good faith to establish such source code escrow arrangements on terms and conditions that shall be reasonably acceptable to both Parties.
Section 3.03 General Rights and Obligations Regarding Materials.
(a) Copyright Legends. Each Party agrees to reproduce copyright legends which appear in the ordinary course on any portion of the Materials which may be owned by the other Party or Third Parties.
(b) No Implied Licenses. Except as expressly specified in this Agreement, nothing in this Agreement shall be deemed to grant to one Party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in any Materials owned by the other Party or any Subsidiary of the other Party.
(c) Residuals. Nothing in this Agreement shall restrict any employee or representative of a Party from using general ideas, concepts or know-how relating to the Services or Materials that are retained solely in the unaided memory of such employee or representative after performing the obligations of a Party under this Agreement, except to the extent that such use infringes upon any patent, copyright or other intellectual property right of a Party or its Subsidiaries; provided, however, that this Section shall not be deemed to limit either Party’s obligations under this Agreement with respect to the disclosure or use of confidential Information or Materials of the other Party. An individual’s memory is unaided if the individual has not intentionally memorized the confidential Information or subject Materials for the purpose of retaining and subsequently using or disclosing it.
(d) Required Consents. Subject to Section 2.10 above, each Party shall, at its own expense, use commercially reasonable efforts to obtain all Consents necessary in connection with (i) in the case of Abbott, all Abbott Owned Materials, and (ii) in the case of AbbVie, all AbbVie Owned Materials. Each of the Parties will reasonably cooperate with the other in obtaining such Consents.
ARTICLE IV.
BILLING; TAXES.
Section 4.01 Procedure. Each Work Schedule shall set forth the types of, and where possible, the amount of, Charges that each Party shall be financially responsible for in connection with the Services and the Materials to be developed, procured or provided pursuant to a Work Schedule. Where Charges are to be paid to a Third Party for Services or Materials under a
Work Schedule, the Party listed as the responsible Party under the Work Schedule shall pay such Charges directly to the Third Party. Where Charges are to be paid to the other Party, the Party who is entitled to reimbursement for Services or other Charges pursuant to a Work Schedule shall issue an invoice detailing such charges to the other Party. Amounts payable pursuant to the terms of this Agreement shall be paid to the invoicing Party on a monthly basis, which amounts shall be due within thirty (30) days after the date of invoice. All amounts due and payable hereunder shall be invoiced and paid in U.S. dollars.
Section 4.02 Late Payments. Charges not paid when due pursuant to this Agreement shall bear interest at a rate per annum equal to the Prime Rate plus two percent (2%), or the maximum legal rate whichever is lower.
Section 4.03 Taxes. The Party invoiced for Charges under a particular Work Schedule shall be responsible for and pay any and all Taxes incurred in connection with the Services under that Work Schedule, including all sales, use, value-added and similar Taxes, but excluding Taxes based on the other Party’s net income and non-income Taxes imposed on the other Party for goods or services used or consumed in providing the services. Notwithstanding anything to the contrary in the previous sentence or elsewhere in this Agreement, the Recipient shall be entitled to withhold from any payments to the Provider any such Taxes that Recipient is required by Law to withhold and shall pay such Taxes to the applicable Tax Authority.
Section 4.04 No Set-Off. Except as mutually agreed to in writing by Xxxxxx and AbbVie, no Party or any of its Subsidiaries shall have any right of set off or other similar rights with respect to (i) any amounts received pursuant to this Agreement; or (ii) any other amounts claimed to be owed to the other Party or any of its Subsidiaries arising out of this Agreement.
ARTICLE V.
TERM; TERMINATION OF WORK SCHEDULES; TRANSFER ASSISTANCE.
Section 5.01 Term. This Agreement will expire two (2) years after the date hereof (the “Expiration Date”). In the event that, despite commercially reasonable efforts by both Parties, there are uncompleted Work Schedules at the Expiration Date, the Party receiving Services pursuant to the uncompleted Work Schedule (the “Recipient”) may elect to extend the term of this Agreement one time with respect to such Work Schedule (any such extension, a “Service Extension”) by notifying the Party providing Services (the “Provider”) no later than three (3) months prior to the Expiration Date; provided, however, that the term of this Agreement may only be extended with respect to an uncompleted Joint Work Schedule by mutual agreement.
(a) If the requested Service Extension is for a period of twelve (12) months or less past the Expiration Date and the applicable services are not set forth in a Joint Work Schedule, then the Provider shall be obligated to provide such requested Service Extension and the Parties shall in good faith (A) negotiate the terms of an amendment to the applicable Work Schedule, which amendment shall be consistent with the terms of the applicable Service, and (B) determine the costs and expenses (which shall not include any Charges payable under this Agreement), if any, that would be incurred by the Provider or the Recipient, as the case may be, in connection with the provision of such Service Extension, which costs and expenses shall
be determined pursuant to Section 2.04(a), except that all references to “Additional Service” therein shall refer to the Service Extension.
(b) If the requested Service Extension is for a period of longer than twelve (12) months past the Expiration Date or the applicable services are set forth in a Joint Work Schedule, then the Parties shall determine whether the Provider shall provide the applicable Service for the requested Service Extension period. If the Parties determine that the Provider shall provide such Service during the requested Service Extension period, then the Parties shall in good faith (1) negotiate the terms of an amendment to the applicable Work Schedule, which amendment shall be consistent with the terms of the applicable Service and promptly provide a copy thereof to the Parties, and (2) determine the costs and expenses (which shall not include any Charges payable under this Agreement), if any, that would be incurred by the Provider or the Recipient, as the case may be, in connection with the provision of such Service Extension, which costs and expenses shall be determined pursuant to Section 2.04(a). Each amended Work Schedule, as agreed to in writing by the Parties, shall be deemed part of this Agreement as of the date of such amendment and any Services provided pursuant to such Service Extensions shall be deemed “Services” provided under this Agreement, in each case subject to the terms and conditions of this Agreement. The Parties acknowledge and agree that (w) there may be interdependencies among the Services being provided under this Agreement, (x) the ability to extend the provision of a particular Service in accordance with this Agreement may be dependent on the extension of another Service, (y) upon the request of either Party, the Parties shall determine whether any such interdependencies exist with respect to the particular Service that the Recipient is seeking to extend in accordance with this Section 5.01 and (z) to the extent the Parties have determined that such interdependencies exist, the Parties shall negotiate in good faith to amend the applicable Work Schedule relating to such other Service, which amendment shall be consistent with the terms of comparable Services.
(c) No later than three (3) months prior to the Expiration Date, the Parties shall meet and confer to discuss the status of all uncompleted Work Schedules and, where feasible, develop a plan to complete such Work Schedules on or before the Expiration Date.
Section 5.02 Termination of Work Schedules.
(a) Termination for Convenience. Upon receipt by the other Party of at least ninety (90) days prior written notice, either Party may terminate a Work Schedule without the consent of the other Party solely for the purpose of transferring the control and responsibility for the Services under such Work Schedule to the terminating Party; provided that (A) the terminating Party shall be solely responsible for completing such Work Schedule during the term of this Agreement, (B) upon receipt of such notice, the terminated Party shall be released from all responsibility in connection with the terminated Work Schedule, except as provided in Section 5.02(b), and (C) the terminating Party shall reimburse the non-terminating Party for any incremental costs or fees actually incurred by the non-terminating Party as a result of such early termination (e.g., fixed charges that are not cancellable without a charge or fee and which would have been offset by payment to the non-terminating Party of Charges set forth in the terminated Work Schedule).
(b) Transfer Assistance. Upon receipt of a notice to terminate a Work Schedule pursuant to Section 5.02(a), each Party shall provide to the other Party such assistance as is reasonably necessary to permit the orderly transfer of the Services to be performed under such Work Schedule to the terminating Party, including providing reasonable access to any facilities, systems, data equipment and/or software being used by the other Party to provide the Services under the terminated Work Schedule; provided that the terminating Party shall comply with the other Party’s security and confidentiality requirements in connection with such access.
Section 5.03 Post-Termination Services. No later than nine (9) months after the date hereof, the Parties shall discuss in good faith the possibility of AbbVie receiving from Abbott following termination of the TSA and expiration of this Agreement information technology services of a type and nature to be discussed. Neither party shall have any obligation to agree to any such services.
ARTICLE VI.
CONFIDENTIALITY; PROTECTIVE ARRANGEMENTS.
Section 6.01 Confidentiality Obligations. Subject to Section 6.03 and except as contemplated by or otherwise provided in this Agreement, Abbott, on behalf of itself and each of the Abbott Subsidiaries, and AbbVie, on behalf of itself and each of the AbbVie Subsidiaries, agrees to hold, and to cause its respective directors, officers, employees, agents, accountants, counsel and other advisors and representatives (each, a “Representative”) to hold, in strict confidence, with at least the same degree of care that applies to Xxxxxx’x confidential and proprietary information pursuant to policies in effect as of the date hereof, all confidential and proprietary Information and Materials concerning the other Party (or its business) and the other Party’s Subsidiaries (or their respective businesses) that is either in its possession (including confidential and proprietary Information and Materials in its possession prior to the date hereof) or furnished by the other Party or the other Party’s Subsidiaries or their respective Representatives at any time pursuant to this Agreement, and shall not use any such confidential and proprietary Information or Materials other than for such purposes as may be expressly permitted hereunder or thereunder, except, in each case, to the extent that such confidential and proprietary Information or Materials has been: (i) in the public domain or generally available to the public, other than as a result of a disclosure by such Party or any of its Subsidiaries or any of their respective Representatives in violation of this Agreement; (ii) later lawfully acquired from other sources by such Party or any of its Subsidiaries, which sources are not themselves bound by a confidentiality obligation or other contractual, legal or fiduciary obligation of confidentiality with respect to such confidential and proprietary Information or Materials; or (iii) independently developed or generated without reference to or use of the respective proprietary or confidential Information or Materials of the other Party or any of its Subsidiaries. If any confidential and proprietary Information or Materials of one Party or any of its Subsidiaries is disclosed to another Party or any of its Subsidiaries in connection with providing services to such first Party or any of its Subsidiaries under this Agreement, then such disclosed confidential and proprietary Information and Materials shall be used only as required to perform such services.
Section 6.02 No Release, Return or Destruction. Each Party agrees not to release or disclose, or permit to be released or disclosed, any such Information or Materials to any other Person, except its Representatives who need to know such Information or Materials, and except in compliance with Section 6.03. Without limiting the foregoing, when any Information or Materials furnished by the other Party after the date hereof pursuant to this Agreement is no longer needed for the purposes contemplated by this Agreement, each Party shall, at the disclosing Party’s option, promptly after receiving a written request from the disclosing Party either return to the other Party all such Information and Materials in a tangible form (including all copies thereof and all notes, extracts or summaries based thereon) or certify to the disclosing Party that it has destroyed such Information and Materials (and such copies thereof and such notes, extracts or summaries based thereon).
Section 6.03 Third-Party Information; Privacy or Data Protection Laws. Each Party acknowledges that it and its respective Subsidiaries may presently have and, following the date hereof, may gain access to or possession of confidential or proprietary Information of, or personal Information relating to, Third Parties (i) that was received under confidentiality or non-disclosure agreements entered into between such Third Parties, on the one hand, and the other Party or the other Party’s Subsidiaries, on the other hand, prior to the date hereof; or (ii) that as between the two Parties, was originally collected by the other Party or the other Party’s Subsidiaries and that may be subject to and protected by privacy, data protection or other applicable laws. As may be provided in more detail in this Agreement, each Party agrees that it shall hold, protect and use, and shall cause its Subsidiaries and its and their respective Representatives to hold, protect and use, in strict confidence the confidential and proprietary Information of, or personal Information relating to, Third Parties in accordance with privacy, data protection or other applicable laws and the terms of any agreements that were either entered into before the date hereof or affirmative commitments or representations that were made before the date hereof by, between or among the other Party or the other Party’s Subsidiaries, on the one hand, and such Third Parties, on the other hand.
Section 6.04 Protective Arrangements. In the event that either Party or any of its Subsidiaries is requested or required (by oral question, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) by any Governmental Authority or pursuant to applicable Law to disclose or provide any confidential or proprietary Information or Materials of the other Party, as applicable, that is subject to the confidentiality provisions hereof, such Party shall provide the other Party with notice of such request or demand as promptly as practicable under the circumstances so that such other Party shall have an opportunity to seek an appropriate protective order, at such other Party’s own cost and expense. In the event that such other Party fails to receive such appropriate protective order in a timely manner and the Party receiving the request or demand reasonably determines that its failure to disclose or provide such Information shall actually prejudice the Party receiving the request or demand, then the Party that received such request or demand may thereafter disclose or provide Information to the extent required by such law (as so advised by counsel) or by lawful process or such Governmental Authority.
ARTICLE VII.
MISCELLANEOUS.
Section 7.01 Mutual Cooperation. The Parties and their respective Subsidiaries shall cooperate with each other in connection with the performance of the Services hereunder and the completion of the Separation Projects, including producing on a timely basis all Information and Materials that is reasonably requested with respect to the performance of Services and the completion of the Separation Projects, by the end of the term of this Agreement; provided, however, that such cooperation shall not unreasonably disrupt the normal operations of the Parties and their respective Subsidiaries; and, provided, further, that this Section 7.01 shall not require either Party to incur any out-of-pocket costs or expenses unless and except as expressly provided in this Agreement or otherwise agreed to in writing by the Parties.
Section 7.02 Limitations on Liability.
(a) THE LIABILITIES OF EACH PARTY AND ITS SUBSIDIARIES AND THEIR RESPECTIVE REPRESENTATIVES, COLLECTIVELY, UNDER THIS AGREEMENT FOR ANY ACT OR FAILURE TO ACT IN CONNECTION HEREWITH (INCLUDING THE PERFORMANCE OR BREACH OF THIS AGREEMENT), OR FROM THE SALE, DELIVERY, PROVISION OR USE OF ANY SERVICES PROVIDED UNDER OR CONTEMPLATED BY THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED SUCH PARTY’S PROFITS FOR PERFORMING SERVICES HEREUNDER, WHICH SHALL BE DEEMED TO BE EQUAL TO THE AMOUNT OF THE XXXX-UP RECEIVED BY SUCH PARTY DURING THE PREVIOUS TWELVE (12) MONTH PERIOD, AS SUCH AMOUNT IS SPECIFIED IN SCHEDULE D AND AS MAY BE ADJUSTED PURSUANT TO THE TERMS OF SCHEDULE D.
(b) IN NO EVENT SHALL EITHER PARTY, ITS SUBSIDIARIES OR ITS REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY HEREBY WAIVES ON BEHALF OF ITSELF AND ITS SUBSIDIARIES ANY CLAIM FOR SUCH DAMAGES, INCLUDING ANY CLAIM FOR PROPERTY DAMAGE OR LOST PROFITS, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.
(c) The foregoing limitations on Liability in this Section 7.02 shall not apply to either Party’s Liability for breaches of confidentiality under ARTICLE VI (Confidentiality).
(d) The limitations in Section 7.02(a) and Section 7.02(b) shall not apply in respect of any Liability arising out of or in connection with the gross negligence, willful misconduct, or fraud of or by the Party to be charged.
Section 7.03 Indemnification Procedures. The provisions of Article IV of the Separation and Distribution Agreement shall govern claims for indemnification under this Agreement; provided that, for purposes of this Section 7.03, in the event of any conflict between the provisions of Article IV of the Separation and Distribution Agreement and this ARTICLE VII, the provisions of this Agreement shall control.
Section 7.04 Force Majeure. Neither Party shall be deemed in default of this Agreement failure to fulfill any obligation so long as and to the extent to which any delay or failure in the fulfillment of such obligations is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. In the event of any such excused delay, the time for performance shall be extended for a period equal to the time lost by reason of the delay. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide Notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement as soon as reasonably practicable.
Section 7.05 Acceptance. Acceptance shall occur when the Services and Materials described in the Work Schedule meet the agreed upon acceptance criteria as described in the Work Schedule. If the Services and Materials do not meet the acceptance criteria as set forth in the Work Schedule when they are ready for acceptance evaluation, a Party may give the other Party detailed written notification of the deficiency or non-conformance within thirty (30) business days of delivery of the Services or Materials. The providing Party then shall either correct the deficiency or non-conformance or provide a plan acceptable for correcting the deficiency or non-conformance. If the deficiency or non-conformance is not corrected or if an acceptable plan for correcting such deficiency or non-conformance is not established during such period, then the aggrieved Party shall follow the procedures for dispute resolution set forth in Section 7.15.
Section 7.06 Audit Assistance. Each of the Parties and their respective Subsidiaries are or may be subject to regulation and audit by a Governmental Authority, standards organizations, customers or other parties to contracts with such Parties or their respective Subsidiaries under applicable law, standards or contract provisions. If a Governmental Authority, standards organization, customer or other party to a contract with a Party or its Subsidiary exercises its right to examine or audit such Party’s or its Subsidiary’s books, records, documents or accounting practices and procedures pursuant to such applicable law, standards or contract provisions, and such examination or audit relates to the Services, then the other Party shall provide, at the sole cost and expense of the requesting Party, all assistance reasonably requested by the Party that is subject to the examination or audit in responding to such examination or audits or requests for information, to the extent that such assistance or information is within the reasonable control of the cooperating Party and is related to the Services.
Section 7.07 Survival of Covenants. Except as expressly set forth in this Agreement, the covenants and other agreements contained in this Agreement, and Liability for the breach of any obligations contained herein, shall survive the date hereof and shall remain in full force and effect thereafter.
Section 7.08 Title to Intellectual Property. Except as expressly provided for under the terms of this Agreement, each Party acknowledges that it shall acquire no right, title or interest
(including any license rights or rights of use) in any intellectual property which is owned or licensed by the other Party, by reason of the provision of the Services provided hereunder. No Party shall remove or alter any copyright, trademark, confidentiality or other proprietary notices that appear on any intellectual property owned or licensed by the other Party, and it shall reproduce any such notices on any and all copies thereof. No Party shall attempt to decompile, translate, reverse engineer or make excessive copies of any intellectual property owned or licensed by the other Party, and it shall promptly notify such other Party of any such attempt, regardless of whether by such it or any Third Party, of which it becomes aware.
Section 7.09 Subsidiaries. Abbott shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by a Subsidiary of Xxxxxx and AbbVie shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by a Subsidiary of AbbVie.
Section 7.10 Responsibility for Expenses. Except as otherwise expressly set forth in this Agreement, or as otherwise agreed to in writing by the Parties, all costs and expenses incurred on or prior to the date hereof in connection with the preparation, execution, delivery and implementation of this Agreement and the consummation of the transactions contemplated hereby and thereby shall be charged to and paid by Abbott. Except as otherwise expressly set forth in this Agreement, or as otherwise agreed to in writing by the Parties, each Party shall bear its own costs and expenses incurred or accrued after the date hereof.
Section 7.11 Headings. The Section and Paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 7.12 Independent Contractors. The Parties each acknowledge that they are separate entities, each of which has entered into this Agreement for independent business reasons. The relationships of the Parties hereunder are those of independent contractors and nothing contained herein shall be deemed to create a joint venture, partnership or any other relationship.
Section 7.13 No Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of the Parties and their Subsidiaries and are not intended to confer upon any Person except the Parties any rights or remedies hereunder; and there are no Third Party beneficiaries of this Agreement and this Agreement shall not provide any other Third Party with any remedy, claim, Liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement.
Section 7.14 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware irrespective of the choice of laws principles of the State of Delaware, as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.
Section 7.15 Disputes; Equitable Relief.
(a) In the event of any dispute, controversy or claim arising out of or relating to the transactions contemplated by this Agreement, or the validity, interpretation, breach
or termination of any provision of this Agreement, or calculation or allocation of the costs of any Service, including claims seeking redress or asserting rights under any law (each, a “Dispute”), Xxxxxx and AbbVie agree that the Parties shall negotiate in good faith in an attempt to resolve such Dispute amicably. If such Dispute has not been resolved by the Parties within twenty-one (21) days after the initial Notice of the Dispute (or such longer period as the Parties may agree), then such Dispute shall be resolved in accordance with the dispute resolution process referred to in Schedule 7.01 to the Separation and Distribution Agreement.
(b) Subject to the foregoing provisions of this Section 7.15, in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the Party or Parties who are or are to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of its rights under this Agreement, in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at law for any breach or threatened breach, including monetary damages, may be inadequate compensation for any loss and that any defense in any Proceeding for specific performance that a remedy at Law would be adequate is waived.
Section 7.16 Interpretation. Words in the singular shall be deemed to include the plural and vice versa and words of one gender shall be deemed to include the other genders as the context requires. The terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules hereto) and not to any particular provision of this Agreement. Section and Schedule references are to the Sections and Schedules to this Agreement unless otherwise specified. Unless otherwise stated, all references to any agreement shall be deemed to include the exhibits, schedules and annexes to such agreement. The word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless the context otherwise requires or unless otherwise specified. The word “or” shall not be exclusive. Unless otherwise specified in a particular case, the word “days” refers to calendar days. References herein to this Agreement or any Ancillary Agreement shall be deemed to refer to this Agreement or such Ancillary Agreement as of the date hereof and as it may be amended thereafter, unless otherwise specified.
Section 7.17 Survival. ARTICLE I (Definitions), Section 2.02 (Transition Services Agreements and Conflicts), Section 2.03(c), Section 2.04 (Charges), ARTICLE IV (Billing; Taxes), ARTICLE VI (Confidentiality), Section 7.02 (Limitations on Liability), Section 7.06 (Audit Assistance), and Section 7.13 (No Third Party Beneficiaries) through Section 7.29 (Mutual Drafting) shall survive any expiration or termination of this Agreement.
Section 7.18 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and the parties thereto, respectively, and their respective successors and permitted assigns. This agreement shall not be assigned without the prior written consent of Xxxxxx and AbbVie, except that:
(a) each Party may assign all of its rights and obligations under this Agreement to any of its Subsidiaries; provided, however, that no such assignment shall release the assigning Party from any Liability under this Agreement; and
(b) in connection with (i) AbbVie’s or Xxxxxx’x divestiture of all or substantially all of its assets to a Third Party or (ii) a Change of Control of AbbVie or Xxxxxx, AbbVie or Abbott, as applicable, may assign to such Third Party its rights and obligations with respect to the Services provided under this Agreement; provided, however, that (x) no such assignment shall release the assigning Party from any Liability under this Agreement, (y) any and all costs and expenses incurred by either Party in connection with such assignment (including in connection with clause (z) of this proviso) shall be borne solely by the assigning Party, and (z) the Parties shall in good faith negotiate any amendments to this Agreement that may be necessary or appropriate in order to assign such Services.
Section 7.19 Amendment. No provisions of this Agreement shall be deemed amended, supplemented or modified unless such amendment, supplement or modification is in writing and signed by an authorized representative of both Parties or, in the case of an amendment, supplement or modification (including an early termination) of a Work Schedule, signed by the contact listed on the applicable Work Schedule, or by such contact’s senior management. No provisions of this Agreement shall be deemed waived unless such waiver is in writing and signed by the authorized representative of the Party or relevant Subsidiary against whom it is sought to be enforced or, in the case of a waiver of a provision in a Work Schedule, signed by the contact listed on the applicable Work Schedule, or by such contact’s senior management.
Section 7.20 Waivers of Default. Waiver by either Party of any default by the other Party of any provision of this Agreement shall not be deemed a waiver by the waiving Party of any subsequent or other default, nor shall it prejudice the rights of the waiving Party.
Section 7.21 Notices. All notices or other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or electronic transmission with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice):
If to Abbott, to:
Xxxxxx Laboratories
000 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX0X, Xxxx. 364
Xxxxxx Park, Illinois 60064-6020
Attn: General Counsel
Facsimile: (000) 000-0000
If to AbbVie to:
AbbVie Inc.
0 Xxxxx Xxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: [·]
Either Party may, by notice to the other Party, change the address to which such Notices are to be given.
Section 7.22 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.
Section 7.23 Entire Agreement. This Agreement and the Exhibits and Schedules hereto contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all previous agreements, negotiations, discussions, writings, understandings, commitments and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than those set forth or referred to herein or therein. Notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there is a conflict between the provisions of this Agreement and the provisions of the Separation and Distribution Agreement, the provisions of this Agreement shall control.
Section 7.24 Corporate Power. Abbott represents on behalf of itself and, to the extent applicable, each Abbott Subsidiary and AbbVie represents on behalf of itself and, to the extent applicable, each AbbVie Subsidiary as follows:
(a) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby; and
(b) this Agreement has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms hereof.
Section 7.25 Signatures and Delivery. Each of Xxxxxx and AbbVie acknowledges that it may execute this Agreement by manual, stamp or mechanical signature, and that delivery of an executed counterpart of a signature page to this Agreement (whether executed by manual, stamp or mechanical signature) by facsimile or by email in portable document format (PDF) shall be effective as delivery of such executed counterpart of this Agreement. Each of Xxxxxx and AbbVie expressly adopts and confirms a stamp or mechanical signature (regardless of whether delivered in person, by mail, by courier, by facsimile or by email in portable document format (PDF)) made in its respective name as if it were a manual signature delivered in person, agrees that it shall not assert that any such signature or delivery is not adequate to bind it to the same extent as if it were signed manually and delivered in person and agrees that, at the reasonable request of the other Party at any time, it shall as promptly as reasonably practicable cause this Agreement to be manually executed (any such execution to be as of the date of the initial date hereof) and delivered in person, by mail or by courier.
Section 7.26 Severability. In the event that any one or more of the terms or provisions of this Agreement or the application thereof to any Person or circumstance is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or the application of such term or provision to Persons or circumstances or in jurisdictions other than those as to which it has been determined to be invalid, illegal or unenforceable, and the Parties shall use their commercially reasonable efforts to substitute one or more valid, legal and enforceable terms or provisions into this Agreement which, insofar as practicable, implement the purposes and intent of the Parties. Any term or provision of this Agreement held invalid or unenforceable only in part, degree or within certain jurisdictions shall remain in full force and effect to the extent not held invalid or unenforceable to the extent consistent with the intent of the parties as reflected by this Agreement. To the extent permitted by applicable Law, each party waives any term or provision of Law which renders any term or provision of this Agreement to be invalid, illegal or unenforceable in any respect.
Section 7.27 Further Assurances. Each Party hereto shall take, or cause to be taken, any and all reasonable actions, including the execution, acknowledgment, filing and delivery of any and all documents and instruments that any other Party hereto may reasonably request in order to effect the intent and purpose of this Agreement and the transactions contemplated hereby.
Section 7.28 Public Announcements. The Parties shall consult with each other before it or any of its Subsidiaries issues, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement, and the Parties shall not, and shall cause their respective Subsidiaries not to, issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.
Section 7.29 Mutual Drafting. This Agreement shall be deemed to be the joint work product of the Parties and any rule of construction that a document shall be interpreted or construed against a drafter of such document shall not be applicable.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
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XXXXXX LABORATORIES | |
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ABBVIE, INC. | |
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