SUPPORT AND SERVICE AGREEMENT
-----------------------------
THIS AGREEMENT, is made the 2nd day of July, 1998, by and between PREMIER
RESEARCH WORLDWIDE, LTD., a Delaware corporation with its principal place of
business located at 000 X. 00xx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (referred to
herein as "PRWW") and AMERICA'S DOCTOR, INC., a Delaware corporation with its
principal place of business located at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx
Xxxxx, XX 00000 (referred to herein as "AD").
WHEREAS, the parties hereto have entered into a Stock Purchase Agreement
dated as of July 1, 1998 (the "Stock Purchase Agreement") wherein PRWW has
purchased certain stock in AD pursuant to the terms of the Stock Purchase
Agreement; and
WHEREAS, the parties hereto are entering into this Agreement pursuant to
and in connection with the Stock Purchase Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Services" shall mean the providing of support and services to
PRWW by AD as set forth in Subsection 3.1 of this Agreement.
1.2 "Term" shall mean the period of time during which this Agreement
is in force.
1.3 "Operative" shall mean the Services'conforming in all material
respects to the performance levels and requirements detailed in
this Agreement.
1.4 "Effective Date" shall mean July 2, 1998.
1.5 All other defined terms shall have the meanings ascribed to them
in this Agreement.
2. TERM AND TERMINATION
2.1 The Term of this Agreement shall begin on the Effective Date and
shall continue until this Agreement is terminated as provided in
Subsection 2.2.
2.2 This Agreement may be terminated as follows:
(a) By the mutual, written agreement of the parties to terminate
this Agreement; or
(b) On written notice by a party if the other party materially
breaches any provision hereof and does not cure such breach within
thirty (30) days after its receipt of written notice, specifying the
breach, from the non-breaching party; or
(c) On written notice by a party if the other party files a
voluntary bankruptcy proceeding, becomes subject to an involuntary
bankruptcy proceeding (which is not dismissed or stayed within 30 days
of its commencement), becomes subject to a receiver or trustee, or
makes an assignment for the benefit of its creditor; or
(d) By PRWW without cause with sixty (60) days prior notice to
AD; or
(e) From and after the date that PRWW no longer owns at least I
% of the outstanding voting stock of AD, by AD without cause with 60
days prior notice to PRWW.
3. SUPPORT AND SERVICE PROVISIONS.
3.1. AD agrees to provide the following to PRWW:
(a) AD shall provide PRWW with direct links from all AD's
existing and future website(s) (but not every page within such
websites) to users to provide the following:
(i) ongoing solicitation and quantification of qualified
clinical research organization (CRO) volunteer patients to participate
in clinical/medical studies administered by PRWW; and'
(ii) education of the users on the societal merits of
participating in clinical research.
(b) AD shall promote and market PRWW's studies on line through
use of its promotional space on its existing and future Health Main
Page(s) to connect to promotional material for PRWW studies.
(i) As an example, AD will offer its AOL users daily and
monthly themes such as "Heart Disease Prevention." Such promotional ads
will be connected to a number of targeted choices for the AOL users. If
the AOL user selects a PRWW targeted choice, the AOL user will be
immediately connected to a PRWW targeted site (the "Targeted Site").
2
(ii) The Targeted Site will be created by AD specifically
for PRWW under the supervision of and pursuant to the sole discretion
of PRWW (AD having the right not to follow PRWW's directions if the
same would be detrimental in any material respect to AD's image or
business plan). The Targeted Site will give the AOL user appropriate
information about PRWW's clinical research activities. If the AOL user
wishes to volunteer, the AOL user will make a choice by clicking an
icon and will be led automatically and immediately to a form to
complete (the "Form" or "Forms" as the context may require). The Form
will be created by AD specifically for PRWW under the supervision of
and pursuant to the sole discretion of PRWW. The Form will gather the
information which PRWW needs for its own purposes and will be varied
within reason from study to study at the sole discretion of PRWW. AD
shall provide all such completed forms to PRWW by e-mail or other
agreedupon means on a daily basis. AD will also provide to PRWW monthly
statistical summaries of the information gathered on the Forms as well
as its updated monthly databases.
3.2. PRWW agrees to provide the following to AD:
(a) Introductions to the Premier Hospital Group and other
related healthcare organizations;
(b) Introductions to the pharmaceutical, medical instrument
companies, and other organizations with which PRWW has an ongoing
business relationship (PRWW representing that it has relationships with
at least twenty such entities).
4. EXCLUSIVITY/CONFIDENTIALITY
4.1 AD shall provide the above described Services exclusively to PRWW
and shall not provide similar services to any other person or
entity relating to recruitment for clinical trials.
4.2 AD shall not design or provide any program that is in any way
substantially similar or related to the program provided to PRWW
for or in conjunction with any other person or entity relating to
recruitment for clinical trials without the express written
permission of PRWW.
4.3 All materials, documents, and other information shared with PRYM
by AD during the course of this Agreement shall be deemed to be,
between AD and PRWW, confidential information ("Information") and
AD shall share same only with those persons performing hereunder
who have a need-to-know same in order to perform the Services.
Upon termination of this Agreement, all Information provided to
PRWW by AD hereunder shall continue to be the
3
exclusive property of PRWW. AD shall be liable for any
unauthorized use or disclosure of the Information by AD's
employees which could have reasonably been prevented by AD.
4.4 AD represents, warrants, covenants and agrees that it shall
maintain reasonable safeguards against the destruction, loss or
alteration of information and data under its control and required
to be provided to PRWW hereunder.
4.5 AD shall not, without the prior written approval of PRWW, publicly
disclose in any press release, filing, brochure or document any
information pertaining to this Agreement (it being understood that
AD may disclose this Agreement to potential investors).
4.6 Nothing herein confers or shall confer upon PRWW any right, title
or interest in any goodwill, trademark, trade name, brand name,
knowledge or credibility of AD. PRWW acknowledges that all such
interests are the exclusive property of AD. PRWW shall not assert
any claim of ownership or right to the same.
4.7 Nothing herein confers or shall confer upon AD, any right, title
or interest in any goodwill, trademark, trade name, brand name,
knowledge or credibility of PRWW. AD acknowledges that all such
interests are the exclusive property of PRWW. AD shall not assert
any claim of ownership or right to same.
5. GENERAL PROVISIONS
5.1 Each party hereto shall indemnify and hold the other party and its
directors, officers, employees, agents, subsidiaries, parents,
affiliates, consultants and subcontractors (all "Associates")
harmless from any claim, liability, loss, damages or expense,
together with all reasonable costs and expenses relating thereto-,
including reasonable attorneys' fees, resulting from the
negligent, reckless or willful acts or omissions of such party,
its agents or employees in connection with the providing of the
Services hereunder.
5.2 Each party hereto shall indemnify and hold the other party and its
Asgociates harmless from any and all claim, liability, loss,
damages or expense, together with all reasonable costs and
expenses relating thereto, including reasonable attorneys' fees,
arising out of or resulting from any breach of any representation,
warranty, covenant or obligation of such party contained in this
Agreement.
5.3 Each party hereto shall indemnify and hold the other party and its
Associates harmless from any and all claim, liability, loss,
damages or expense, together with all reasonable costs and
expenses relating thereto, including reasonable
4
attorneys' fees, arising from a claim that the Services provided
by such party, or any part thereof, infringes a patent, copyright,
trade secret or other intellectual property right of a third
party.
5.4 Each party hereto shall promptly notify the other party in writing
of the assertion of any claim, liability, loss, damages or expense
described in this Section 5. The indemnifying party shall have the
exclusive right to control the defense and settlement of such
claim, and the indemnified party and its Associates shall
cooperate and provide all reasonable information, assistance and
authority to enable the indemnifying party to conduct such
defense.
5.5 In the event that the Services provided by a party hereunder, or
any part thereof, are found to infringe a patent, copyright or
other intellectual property right, such party shall, in addition
to the indemnity provided above, take the following actions at its
expense: (a) procure for the other party the right to continue to
use the Services; or (b) if such cure is not made available
despite such party's best efforts to secure same, replace or
modify the offending element(s) of the Services provided for
hereunder by such party, so that it/they are no longer infringing
while still meeting the requirements of this Agreement. A party
shall not have liability hereunder for any claim based on the
other party or its Associates' misuse of any product or use or
combination of any product with software, hardware or other
materials.
5.6 The parties respective rights and obligations under Sections 4.3,
4.4, 4.5, 4.6 and 4.7 hereof and this Section 5 shall survive any
expiration or termination of this Agreement.
6. ADDITIONAL COVENANTS, REPRESENTATIONS AND WARRANTIES
6.1 AD represents that AOL has represented to it that AOL has
approximately 32 million impressions per year on the Health Main
Page. This represents the number of times per year that an AOL
user enters the Health Main Page screen each year.
6.2 AD represents that AOL has represented to it that IntelliHealth,
an AOL Health Main Page Anchor Tenant without real time medical
services, is running 2.5 - 3.0 million page impressions per month.
6.3 AD represents that the users of the Health Main Page and the
Anchor Tenants of the Health Main Page are within a demographic
group from which volunteers of the nature needed by PRWW are
typically found.
5
6.4 AD represents that it is an anchor tenant on the AOL Health Main Page.
AD anticipates more than 500,000 users in its first month of operations
as an Anchor Tenant on AOL's Health Main Page based upon discussions
with AOL and representatives of other Health Main Page Anchor Tenants.
6.5 AD shall use its best efforts to perform the Services hereunder pursuant
to the highest standards in the industry.
6.6 AD will designate and at all times use its best efforts to maintain its
facility, equipment and service personnel in a manner necessary to
provide the Services to PRWW as contemplated in this Agreement.
6.7 AD shall designate and maintain at all times a specific contact person
located at the offices of AD who will have primary responsibility to
respond, or facilitate the response, to telephone requests for Service
by PRWW.
6.8 AD represents, warrants, covenants and agrees that AD's personnel
performing hereunder are and shall be skilled in the providing of the
Services.
6.9 AD represents, warrants, covenants and agrees that it has in effect, and
shall use its best efforts to establish and maintain in effect during
the term of this Agreement, all hardware, software, firmware and other
intellectual property license and support agreements (including, without
limitation, those agreements necessary to secure access to and use of
new release levels, amendments, improvements and updates to such
hardware, software, firmware and other intellectual property) as are
necessary to lawfully and properly provide the Services.
6.10 AD represents, warrants, covenants and agrees that it currently, and
shall for the term of this Agreement, strictly enforce any material
rights, warranties, licenses and other benefits accruing to it under
each of its agreements with third parties whose goods or services are
utilized in the providing of the Services.
6.11 AD represents, warrants, covenants and agrees that the hardware,
software, firmware and intellectual property provided, developed and/or
used by AD hereunder shall not infringe upon or violate any patent,
copyright, trademark, trade secret or other intellectual property right
of any third party.
6.12 AD represents, warrants, covenants and agrees that the Services shall be
furnished and in all respects provided in conformance and compliance
with applicable laws.
6
6.13 AD represents, warrants, covenants and agrees that the software and
firmware utilized to provide the Services hereunder shall not incur
errors or defects as a result of the century date change in the year
2000.
6.14 AD hereby represents and warrants that it has the authority to enter
into this Agreement and the right to provide the Services to PRWW
hereunder without breach of any obligation to AOL or any third party,
and that its performance under this Agreement will not breach any
obligation to AOL or any third party, or any contract, agreement, rule,
law or regulation of whatsoever nature.
7. ASSIGNMENT
Neither party shall assign any of its rights nor delegate any of its
obligations under this Agreement without the prior written consent of
the other party; provided that the rights and obligations of a party
under this Agreement will be automatically assigned to and assumed by
any successor to it by merger or consolidation or any person which
acquires substantially all of the assets and business of such person.
Any prohibited assignment or delegation shall be null and void.
8. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. Nothing in this Agreement or in
the activities contemplated by the parties pursuant to this Agreement
shall be deemed to create an agency, partnership, employment or joint
venture relationship between the parties. Each party shall be deemed to
be acting solely on its own behalf and, except as expressly stated, has
no authority to pledge the credit of, or incur obligations or perform
any acts or make any statements on behalf of, the other party. Neither
party shall represent to any person or permit any person to act upon the
belief that it has any such authority from the other party. Neither
party's officers or employees, agents or contractors shall be deemed
officers, employees, agents or contractors of the other party for any
purpose.
9. AMENDMENT
No changes, amendments or modifications of any of the terms or
conditions of this Agreement shall be valid unless made by an instrument
in writing signed by both parties.
7
10. COMPLIANCE WITH LAWS
The parties shall comply with all applicable international, federal,
state and local laws, regulations and ordinances as they relate to this
Agreement, including but not limited to, the regulations of the United
States Government, which are incorporated in this Agreement by this
reference as if set forth in full.
11. MISCELLANEOUS
11.1 Whenever this Agreement requires either party's approval, consent
or satisfaction, the response shall not be unreasonably or
arbitrarily withheld or delayed.
11.2 Section headings are included for convenience only and are not to
be used to construe or interpret this Agreement.
11.3 No delay, failure or waiver of either party's exercise or partial
exercise of any right or remedy under this Agreement shall operate
to limit, impair, preclude, cancel, waive or otherwise affect such
right or remedy.
11.4 If any provision of this Agreement is held invalid, illegal or
unenforceable, the validity, legality or unenforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
11.5 This Agreement may be executed by the parties in one or more
counterparts, each of which when so executed shall be an original,
but all such counterparts shall constitute one and the same
instrument.
11.6 This Agreement is entered into and shall be governed by the
internal laws and not the -laws regarding conflicts of laws of the
State of Maryland.
11.7 The remedies under this Agreement shall be cumulative and not
exclusive, and the election of one remedy shall not preclude
pursuit of other remedies. Either party may seek any remedy
generally available under the governing law.
11.8 The parties each warrant, represent, covenant and agree that they
will not assign to perform any efforts under this Agreement any
individual who is an unauthorized alien under the Immigration
Reform and Control Act of 1986 or its implementing regulations.
Each party shall indemnify and hold harmless the other party and
its respective Associates from and against any and all
liabilities, damages, losses, claims or expenses (including
attorneys' fees) arising out of any breach by such party of this
Section. In the event any AD personnel or contractor working under
this Agreement, or other individual(s) providing
8
Services to PRWW on behalf of AD under this Agreement, are
discovered to be unauthorized aliens, AD will irnmediately remove
such individuals from performing work and replace such individuals
with individuals who are not unauthorized aliens. In the event any
PRWW personnel or contractor working under this Agreement or other
individual(s) providing Services to AD on behalf of PRWW under
this Agreement, are discovered to be unauthorized aliens, PRWW
will immediately remove such individuals from performing work and
replace such individuals with individuals who are not unauthorized
aliens.
11.9 If either party's performance under this Agreement is interfered
with by reason of any circumstances beyond said party's reasonable
control, including without limitation, severe weather, fire,
explosion, A.C. power failure, acts of God, war, revolution, civil
commotion, or acts of public enemies, any law, order, regulation,
ordinance or requirement of any government or legal body or any
representative of any such government or legal body, labor unrest,
including without limitation, strikes, slow downs, picketing or
boycotts, then said party shall be excused from its performance on
a day-for-day basis to the extent of such interference.
11.10 Notices and other communications; shall be transmitted in writing
by certified U.S. Mail, postage prepaid, return receipt requested,
or by facsimile or by overnight courier, addressed to the parties
at the address first set forth above. Such notices and
communications shall be deemed effective four (4) days after the
date of mailing or upon receipt as evidenced by the U.S. Postal
Service return receipt cards, whichever is earlier, or upon
receipt if sent by facsimile or overnight courier.
12. ENTIRE AGREEMENT
This Agreement, with any other instrument, agreement or document
attached or referred to, which are incorporated by this reference
as though set forth in full, embodies the final, full and
exclusive statement of the agreement between AD and PRWW, and as
of its date supersedes all prior agreements, negotiations,
representations and proposals, written or oral, relating to the
Services. This Agreement shall not be construed to govern any
other transaction between AD and PRWW. Neither party shall be
bound or liable to any other party for any representation, promise
or inducement made by any agent or person in their employ relating
to the subject matter which is not embodied in this Agreement.
9
