EXHIBIT 10.7
[LILLY LOGO] SOFTWARE
LICENSE
AGREEMENT
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION - ASTERISKS DENOTE OMISSIONS.
This Software License Agreement (the "Agreement") is entered into as of the 15th
day of March, 2001 by and between ▇▇▇ ▇▇▇▇▇ and Company, having its principal
place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and
its Affiliates, (hereinafter referred to as "Lilly") and Phase Forward
Incorporated, a Delaware corporation with a principal place of business at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter referred to as "Licensor").
INDUCEMENTS
WHEREAS, Lilly is in the business of the research, development, manufacture, and
sale of pharmaceutical based health care solutions, and has submitted to
Licensor certain information regarding (i) Lilly's desire to add value and to
improve its capability for delivering pharmaceutical based health care solutions
through the use of certain technology; (ii) a general description of the
hardware, software and services to be provided by Licensor related to the
implementation of this technology within Lilly's organization, and (iii) certain
technical requirements to fulfill the present and future needs of Lilly
(collectively the "RFP"); and
WHEREAS, Lilly desires to enter into a mutually beneficial relationship with
Licensor under the terms and conditions hereinafter set forth in order to
facilitate the anticipated acquisition by Lilly of certain Products; and
NOW, THEREFORE, in consideration of the inducements, mutual covenants and
conditions herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement
shall have the meanings detailed below.
ACCEPTANCE DATE. For any Product hereunder, the Acceptance Date is the
first day after the applicable Product successfully completes all
phases of Acceptance Testing provided for in this Agreement. If Lilly
waives Acceptance Testing of any such Product in writing, the
Acceptance Date for such Product shall be the date that Licensor
delivers its written certification to Lilly that such Product is
installed and ready for use in accordance with all applicable
specifications.
ACCEPTANCE TESTING. Acceptance Testing is the performance and
reliability evaluation standard that must be met by a Product acquired
by Lilly hereunder.
AFFILIATE. An Affiliate is any company, partnership, or joint venture
more than twenty-five percent (25%) of the interest in which is owned
or controlled (i) by a party; or (ii) by any Parent or Subsidiary of a
party.
Contractors means organizations (such as, but not limited to,
consulting firms and contract research organizations), employees of
such organizations and individual contractors that provide services to
Lilly on a consulting or outsourcing basis.
CPU. Any computer or computer complex which shares memory or direct
access storage device, and which for the purposes of Lilly's use
thereof may be accessed by Lilly.
DOCUMENTATION. Documentation shall mean the portion of the Product
consisting of material in written, printed or electronic format,
including but not limited to: technical reference manual, technical
notes manual, users manual, application administration guide, and
application security administration guide.
INSTALLATION DATE. The Installation Date is the date by which all items
and parts of the applicable Product(s) shall be installed and prepared
for Acceptance Testing.
INVESTIGATIONAL PRODUCTS means medical procedures, drugs or devices
which Lilly is testing in clinical trials.
INVESTIGATORS means clinical investigative organizations (such as, but
not limited to, hospitals, medical clinics, and physicians'
organizations and practices), employees of such organizations, and
individual investigators that treat, monitor and provide information
about subjects participating in clinical trials of Investigational
Products.
PRODUCT. A Product(s) is any Software or other deliverable pursuant to
this Agreement.
SERVICES. Services include any programming service, preventive
maintenance, remedial hardware maintenance, software maintenance
conversion service, consulting service, training service, or support
service or other service provided by Licensor to Lilly pursuant to this
Agreement.
SOFTWARE. Software is the object code version of any computer programs,
programming, modules, patches, upgrades, or modifications delivered by
Licensor to Lilly pursuant to this Agreement as set forth in Appendix
A.
SPECIFICATIONS. Specifications are the functional performance
parameters, capabilities and functionality of Software as published in
its then-current Documentation.
UPDATE. Update, means a set of procedures or new program code
implemented by Licensor to correct Errors (as defined in the
Maintenance Agreement) in the Product and to allow the Product to
continue to function under supported versions of an applicable
operating system, and which may include modifications and enhancements
to improve functioning of the Product and is designated by a change in
the digits anywhere to the right of the tenths digit in the Software
version number [x.x(x)].
THE SECTIONS ON THE FOLLOWING PAGES ALSO ARE PART OF THIS AGREEMENT
IN WITNESS WHEREOF, LILLY and Licensor have caused duly authorized
representatives of the respective parties to execute this Agreement on the
date(s) set forth below.
▇▇▇ ▇▇▇▇▇ AND COMPANY LICENSOR
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. Schlicking
----------------------- -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. Schlicking
Title: Chief Financial Officer Title: Senior Vice President & CFO
Date: March 15, 2001 Date: March 7, 2001
UPGRADE means a new version or release of the Product provided by
Licensor which improves the functionality or which adds functional
capabilities to the Product and is designated by a change in the digits
(i) in the tenths digit in the Software version number [x.(x)x] or,
(ii) to the left of the decimal point in the Software version number
[(x).xx]. Upgrade shall include versions or releases of any successor
product to the Product, including, but are not limited to by way of
example, any next generation or successor product that contains or
performs comparable or similar functionality and performance as the
Product.
SOFTWARE WARRANTY PERIOD. The Software Warranty Period is the period of
time beginning on the Acceptance Date and continuing for * calendar
days thereafter.
2. LICENSE. Licensor hereby grants to Lilly, and Lilly hereby accepts, on
the following terms and conditions, a nonexclusive and nontransferable, fully
paid-up (upon payment of the licensing fees), irrevocable, world-wide, perpetual
license for either an enterprise license, a concurrent user license or a named
user license as provided on Appendix A.
3. USE OF SOFTWARE AND DOCUMENTATION. Lilly will have the right, as part
of the license granted in this Agreement, to make as many additional copies of
the Software and Documentation needed in support of the licensed use of the
Software and Documentation as it may determine; provide however, that Lilly
shall maintain records detailing where each copy of the Software is installed.
Licensor shall have the right to audit such records upon reasonable notice to
Lilly during normal business hours.
Lilly may also make backup and archival copies of the Software and
Documentation. Lilly shall have the right to utilize any Product during the term
of this Agreement, on or in connection with any CPU that is utilized to fulfill
its data processing needs at one or more sites owned or controlled by Lilly, or
its outsourcing Contractor with Licensor's consent, which will not be
unreasonably withheld. It will not be unreasonable for Licensor to withhold
consent to an outsourcing to a clinincal research organization or other
organization providing similar services.
Lilly, its agents or Contractors, shall have the right to unlimited use of the
applicable Software and to operate and use the Software at any time and for any
period of time at the convenience of Lilly within the scope of the license
granted. Lilly may use the Software acquired hereunder solely for Lilly's use in
connection with clinical trials sponsored by Lilly at sites owned or controlled
by Lilly, or its outsourcing Contractor with Licensor's consent, which will not
be unreasonably withheld. It will not be unreasonable for Licensor to withhold
consent to an outsourcing to a clinincal research organization or other
organization providing similar services.
4. SOURCE CODE. Within thirty (30) days after the effective date of this
Agreement, Licensor shall enter into a software escrow agreement with the
software escrow agent of its choosing under terms and conditions to be approved
in advance by Lilly. Lilly shall be listed as a beneficiary under the software
escrow agreement Within thirty (30) days after the initial delivery of Software
to Lilly hereunder. Licensor shall provide to the software escrow agent the
"Deposit Materials" consisting of the source code for the version of the
Software delivered to Lilly (the "Source Code"), and all documentation necessary
for the use thereof. Licensor shall maintain all such Deposit Materials with the
software escrow agent in its most current Upgrade version and will deliver any
revised Deposit Materials to the source code escrow agent not later than sixty
(60) business days after any Upgrade is effected by Licensor. Lilly shall be
entitled to receive the Deposit Materials upon the occurrence of one or more of
the following Escrow Events: (i) all or any material part of the Source Code is
generally made available by Licensor without cost to other users of the Source
Code; (ii) Licensor ceases, for any reason, to do business; (iii) Licensor is in
default under this Agreement in whole or in part because of its failure to
maintain, or otherwise comply with its obligations with respect to, the Deposit
Materials and has failed to cure such default within sixty (60) days of written
notice of such default; (iv) the sale of all or substantially all of the assets
of Licensor if the purchaser of the assets does not agree to be bound by this
Agreement; (v) bankruptcy, receivership, insolvency, reorganization,
dissolution, liquidation, or similar proceedings are instituted by or against
Licensor or all or any substantial part of its property under any Federal or
State law; or (vi) other events, if any, defined in the source code escrow
agreement which permit the release of the Deposit Materials. Upon occurrence of
one or more of the foregoing Escrow Events, Lilly shall receive a perpetual,
fully paid-up, non-exclusive license to use and improve the Deposit Materials,
including the Source Code and documentation therefor, solely for the benefit of
Lilly to use in a manner consistent with the terms of this Agreement. In the
event that Lilly shall be entitled to receive the Deposited Materials pursuant
to the Escrow Events. Lilly shall have the right to hire Licensor's employees
and Licensor shall waive all non-compete provisions of this Agreement or any
non-compete agreements with its employees.
5 PHASE FORWARD'S INTELLECTUAL PROPERTY
5.1 ACKNOWLEDGMENT OF RIGHTS. Lilly acknowledges that (i) as between
Licensor and Lilly, all right, title and interest in and to the
Products (including any and all patents, copyrights, trade secret
rights, trademarks, trade names and other intellectual property rights
embodied therein or associated therewith) are and shall remain the
property of Licensor and its licensors (if any), (ii) this Agreement in
no way conveys any right or interest in the Products other than the
limited rights and license to use them in accordance herewith, (iii)
the Products are works protected by the patent and copyright laws of
the United States and by international treaties, and (iv) Licensor
asserts that the Products and embody valuable confidential and secret
information of Licensor or its licensors (if any), the development of
which required the expenditure of considerable time and money.
5.2 LILLY'S OBLIGATIONS. Except as may be otherwise expressly authorized
herein, Lilly shall (i) not disclose or provide any Product to any
other party, (ii) not alter, reverse engineer, disassemble, decompile
or copy any Software, (iii) not use or analyze any Product for the
purpose of developing any similar product whether for external or
internal use (although Lilly may develop a similar product; provided
however that it does not use the Product or any Confidential
Information of Licensor in such development), (iv) not conduct or
participate in any benchmarking activity in which any results or any
characteristic of any Product are disclosed to any third party, (v)
limit access to the Products to its employees. Contractors and
Investigators who require access in connection with Lilly's use of the
Products as authorized hereunder and who have agreed in writing or are
otherwise legally bound to observe Lilly's obligations hereunder, (vi)
take all reasonable precautions, including secure storage of all media
containing copies of the Software, to prevent unauthorized or improper
use or disclosure of the Software, (vii) not remove from, and reproduce
on any authorized copies of, the Products all titles, trademarks, trade
names, and copyright, patent and other proprietary or restrictive
legends or notices, and (viii) maintain all copies of the Products in a
manner so as to reasonably preclude unauthorized use thereof or access
thereto.
6. ACCEPTANCE TESTING. The initial Product furnished by Licensor shall be
subject to Acceptance Testing as follows:
6.1. At least thirty (30) days prior to installation of the
Product, but no later than thirty (30) days following execution of this
Agreement, Lilly shall provide Licensor with its plan to conduct
Acceptance Testing. Licensor shall then install the Software on one
server at Lilly's headquarters in Indianapolis. Following delivery and
installation of the Product, Licensor shall certify in writing to
Lilly that the Product is ready for Acceptance Testing. With Licensor's
assistance, Lilly shall, within thirty (30) calendar days after receipt
of such certification, operate the Product to determine in Lilly's sole
estimation, whether: (i) the Product meets the Specifications, performs
the functions, and does not exceed the facilities usage or run time
limits and standards provided by Lilly to Licensor or set forth in
Licensor's Specifications for the Product; and (ii) the Product is
capable of running on a repetitive basis on a variety of Lilly's actual
data, without failure.
6.2. If the Product successfully meets these Acceptance Tests,
Lilly shall so notify Licensor in writing within five (5) business days
of completion of the Acceptance Tests and the Product shall be deemed
to be accepted. In such case, the Acceptance Date shall be the date
that the software satisfactorily completes all of the tests specified
above.
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
2
6.3. If the Product fails to meet any or all of the specified
Acceptance Tests, Lilly shall notify Licensor of such failure in
writing within ten (10) business days of completion of the Acceptance
Tests and Licensor shall have thirty (30) calendar days in which to
correct, modify, or improve the Product to cause it to meet each such
Acceptance Test. Thereafter, Lilly shall have fifteen (15) additional
calendar days in which to re-conduct all of the Acceptance Tests
specified above. This process shall be repeated as may be necessary
until the Product is deemed to be accepted hereunder; provided,
however, that if the Product is not accepted hereunder within
one-hundred eighty (180) days after Licensor's initial written
certification to Lilly that the Product is ready for Acceptance
Testing. Lilly shall have the right and option to cancel this Agreement
and request the removal of the Product failing to meet the acceptance
criteria, in addition to the remedies available in Section 6.5. If
Lilly fails to notify Licensor of any failure within the thirty (30)
day acceptance period, the Product shall be deemed accepted. Provided
that Licensor exercises its best efforts to correct, modify, or improve
the Product to cause it to meet the Acceptance Test and the Product is
not accepted hereunder within one-hundred eighty (180) days after
Licensor's initial written certification to Lilly that the Product is
ready for Acceptance Testing, Licensor shall have the option to cancel
this Agreement if Lilly does not accept the Product upon thirty (30)
days notice that Licensor is exercising its option to cancel the
Agreement under this provision.
6.4. MAINTENANCE DURING ACCEPTANCE TESTING. During all Acceptance
Testing, Licensor shall provide Maintenance Services as set forth in
Exhibit 2. Maintenance Services, attached hereto, at no expense to
Lilly.
6.5. FAILURE TO COMPLETE ACCEPTANCE TESTING SUCCESSFULLY. If the
Product fails to successfully complete Acceptance Testing, then Lilly
may, at its sole discretion, elect any or all of the following options.
6.5.1. Lilly may terminate the Agreement and request the
removal of the Product failing to meet the applicable phase
of Acceptance Testing. Lilly may cancel the license and
receive a full reimbursement from Licensor within thirty (30)
days for any and all fees that it may have paid. Lilly may, at
its sole option, extend such Acceptance Period subject to
Lilly's right to cancel and obtain reimbursements if the
Product is not repaired within such extension period. If
Lilly accepts the Product, Lilly will notify the Licensor in
writing within five business days of its acceptance.
6.5.2. Lilly may reject the Product, and thereafter, for a
period of thirty (30) days, each party agrees to enter into
good faith negotiations to determine if there is a resolution
to the reason for rejection acceptable to both parties, in
their sole discretion.
6.6. In no event shall use of any Product by Lilly, for business,
profit, revenue, or any other purpose during any phase of the
Acceptance Testing, constitute acceptance of any Product by Lilly.
7. FEES, INVOICES AND PAYMENTS
7.1. LICENSE FEES. Lilly will pay to Licensor the License Fees
specified in Appendix A, according to the schedule specified in such
Appendix A.
7.2. MAINTENANCE FEES. Provided that Licensor has not breached this
Agreement or the Maintenance Agreement, during the time period
beginning on *, Lilly shall pay for Maintenance Services in accordance
with the Maintenance Services Fees specified in Appendix A. Licensor
shall not enter into a factoring transaction or similar transaction
obligating Lilly to a third party with respect to the Maintenance Fees.
7.3 CHARGES. Lilly will determine the applicability of charges by
the following criteria: (i) except as provided in Section 6.3, no
Product shall be deemed to be accepted by Lilly and Lilly shall have no
obligation to Licensor for any payment unless and until the Product has
successfully met the Acceptance Testing requirements as set forth in
this Agreement; (ii) Lilly shall not be billed or liable for any
charges or expenses other than those charges or expenses stated and
expressly authorized in this Agreement; and (iii) charges under this
Agreement effective for less than a full calendar month shall be
prorated on the basis of a thirty (30) day month.
7.4 INVOICES. Invoices shall be delivered to Lilly at the
following address and must clearly indicate the Lilly Purchase Order
number:
▇▇▇ ▇▇▇▇▇ and Company
Accounts Payable, Drop Code ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Invoiced amounts not in dispute shall be paid by Lilly *. In the event
that Lilly disputes the validity of any amount in any invoice, Lilly
shall communicate to Licensor the nature of the dispute within * after
the date of the invoice.
7.5 TAXES. Lilly will pay, or reimburse Licensor, for any and all
taxes, imposed on Lilly or Licensor by this Agreement, or on the
Products provided hereunder, or the use thereof; provided, however,
that Lilly shall have no obligation to pay any such taxes or amounts:
(i) that are based upon income of Licensor; or (ii) that are personal
property taxes assessed on Products that are licensed to Lilly; or
(iii) that are personal property taxes assessed or assessable for any
period prior to the Acceptance Date for the applicable Product; or (iv)
if Lilly has no obligation under this Agreement to pay Licensor the
license, purchase, or other acquisition or usage price or fee for the
Product(s) against which the tax is assessed or otherwise due and
payable; or (v) that are due in whole or in part because of any failure
by Licensor or its agents to file any return or information required by
law, rule or regulation. Any personal property taxes assessable on
purchased Products after the Acceptance Date therefor shall be borne by
Lilly. Licensor shall pay, and shall hold Lilly harmless against, any
penalty, interest, or additional tax that may be assessed or levied as
a result of the failure or delay of Licensor or its agents to file any
return or information required by law, rule, or regulation. Licensor
shall provide reasonable assistance to Lilly should Lilly contest any
taxes imposed on it which result from this Agreement.
8 LILLY'S COVENANTS AND OBLIGATIONS
8.1 PROHIBITION OF DIAGNOSTIC OR THERAPEUTIC USE. Lilly acknowledges that
it understands, and undertakes to ensure that all users of the Products
(including, without limitation, Contractors and Investigators) will
understand, that (i) the Products are designed to expedite and improve
the collection, management and analysis of specific and limited data in
clinical trials; (ii) such data do not comprise complete patient
medical record; (iii) such data may be incorrect because of
transcription or other errors; (iv) the Products are not a diagnostic
or therapeutic aid and must be used only for research purposes, and (v)
data collected by, or analyses performed by, the Products must not be
used for patient diagnosis or therapy decisions.
8.2 COMPLIANCE WITH CLINICAL TRIAL AND PRIVACY LAWS. Lilly represents and
covenants, with respect to all clinical trials for which the Products
are used, that (i) each such trial will be conducted in compliance with
all applicable local, Federal and international laws, treaties, rules,
regulations, guidelines and codes of practice relating to such trial,
including in particular those pertaining to clinical investigations,
the use of Investigational Products in humans, the rights of subjects
participating in clinical trials, compensation for research-related
injury and privacy of medical records (including the European Data
Privacy Act, to the extent applicable, and any other applicable
regulations governing the transfer of medical records to other
countries or the inspection of such records by government authorities
or persons responsible for monitoring clinical trials), and
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
3
(ii) without limiting the generality of the foregoing, that each such
trial will use consent forms which include all language necessary, and
such consent forms will be implemented and obtained from subjects under
all procedures necessary, to ensure compliance with the foregoing.
9. INFRINGEMENT.
9.1. INFRINGEMENT WARRANTY. Licensor warrants that Lilly's use of
any Product or Documentation will not infringe any patent, copyright,
trademark, trade secret, or other proprietary right and that the
Product or Documentation is not the subject of a lien, a security
interest, claim, cause of action, or otherwise hypothecated to a third
party.
Licensor warrants that it has the right to grant to Lilly the license
to use Product as set forth in this Agreement without violating the
rights of any third party and that there is no actual or threatened
suit by any third party based on an alleged violation of such right by
Licensor. To the extent Licensor incorporates third party rights into
the Product, Licensor warrants that it shall have obtained the rights
from those third parties to vest in or grant to Lilly the various
license rights necessary under this Agreement. Lilly acknowledges that
use of any Product may require third-party software (the "Third-Party
Software"), that the license granted by Licensor for Products does not
include licenses for any such Third-Party Software, and that Lilly is
solely responsible for obtaining valid licenses for all such necessary
Third-Party Software.
9.2 EXCLUSIVE REMEDY FOR BREACH OF INFRINGEMENT WARRANTY. Licensor
shall indemnify Lilly as provided for in Section 18.1 against any claim
of a breach of the warranty set forth in Section 9.1 above. THE
FOREGOING STATES THE SOLE REMEDY OF LILLY AND THE ENTIRE OBLIGATION OF
LICENSOR WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10. SOFTWARE WARRANTIES.
10.1. COMPATIBILITY AND PERFORMANCE. Licensor warrants that the
Software will be compatible with the Licensor's technical environment
recommendations, including hardware, operating system(s), software
application(s), CPU's and networks specified by Licensor. Licensor
represents and warrants to Lilly that all delivered components of the
Software will be the latest generally available release, and that
future releases and engineering changes to the Software or its
components will not degrade performance or remove functionality.
Licensor represents and warrants that at delivery and throughout the
Warranty Period the Software shall substantially conform to and will
operate substantially in accordance with the Specifications. Licensor
shall not be responsible to the extent failures are caused by (a)
Lilly's failure to use the Software in accordance with instructions
included in the Documentation, or (b) the modification of the Software
by any person other than Licensor, its employees, agents, affiliates or
subcontractors (unless such modification was authorized or approved by
Licensor); or (c) disaster or accident (unless caused by Licensor).
10.2. EXCLUSIVE REMEDY FOR BREACH OF PERFORMANCE WARRANTY. Lilly
acknowledges that errors may exist or occur in any software program. As
Licensor's sole obligation, and Lilly's sole remedy, for any breach of
the limited warranty of conformity set forth in Section 10.1 and 10.3,
Licensor shall use commercially reasonable best efforts to replace
defective media or material and/or to provide maintenance releases,
error fixes or workarounds to correct any material error in any
Software reported to Licensor during the Warranty Period. If, after
reasonable efforts, Licensor cannot make the Software operate as
warranted, then Licensor shall refund to Lilly all fees paid for such
nonconforming Software upon Lilly's return of such nonconforming
Software, and this shall be Lilly's sole and exclusive remedy.
10.3. MEDIA DEFECTS. Licensor warrants that all tapes, diskettes or
other electronic media provided to Lilly hereunder will be free from
defects. Licensor shall, within five days of notification by Lilly of
such defect, replace any defective electronic media at no additional
cost to Lilly.
10.4. ILLICIT CODE. Licensor warrants unless (i) authorized in
writing by Lilly or (ii) necessary to perform valid duties under this
Agreement, any Software provided to Lilly by Licensor for use by
Licensor or Lilly shall; (a) contain no hidden files, (b) as set up in
the default installation, not replicate, transmit or activate itself
without control of a person operating computing equipment on which it
resides; (c) not alter, damage, or erase any data or computer programs
without control of a person operating the computing equipment on which
it resides; (d) contain no key, node lock, time-out or other function,
whether implemented by electronic, mechanical or other means, which
restricts or may restrict use or access to any programs or data
developed under this Agreement, based on residency on a specific
hardware configuration, frequency of duration of use, or other limiting
criteria ("Illicit Code"). Provided and to the extent any program has
any of the foregoing attributes, and notwithstanding anything elsewhere
in this Agreement to the contrary. Licensor shall be in default of this
Agreement, and a thirty (30) day cure period shall apply. In addition
to any other remedies available to it under this Agreement, Lilly
reserves the right to pursue any civil and/or criminal penalties
available to it against the Licensor.
10.5. YEAR 2000. Licensor warrants and represents that the
occurrence in or use by the Product of any dates, including without
limitation any date with a year specified as "99" or "00", regardless
of other meanings attached to these values, and any date before, on or
after January 1, 2000 ("Millennial Dates") will not adversely affect
its performance with respect to date-dependent data, computations,
output, or other functions (including, without limitation, calculating,
comparing, and sequencing) and that the Product will create, store,
process and output information related to or including Millennial Dates
without errors or omissions and at no additional cost to Lilly. At
Lilly's request. Licensor will provide sufficient evidence to
demonstrate the adequate testing of the Product to meet the foregoing
requirements.
10.6. DOCUMENTATION OF THE LICENSED SOFTWARE. Licensor warrants and
represents that it shall at all times document the operation of the
Software in a manner consistent with the best practices of the software
development industry, and such Documentation shall accurately reflect
the operation of the Software and enable a person reasonably skilled in
computer programming and in possession of the Software source code to
use, and maintain the Software fully and completely. Licensor further
represents and warrants that it shall control and identify all
adaptations, upgrades, and enhancements of the Software by means of a
version, release or build number.
11. GENERAL REPRESENTATIONS AND WARRANTIES.
11.1. DUE AUTHORITY. Each party's execution, delivery and
performance of this Agreement and each agreement or instrument
contemplated by this Agreement has been duly authorized by all
necessary corporate action. This Agreement and each agreement or
instrument contemplated by this Agreement, when executed and delivered
by each party in accordance with the terms of this Agreement, will be
the legal, valid, and binding obligation of such party, in each case
enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization, or similar laws then in effect that govern the
enforcement of creditors' rights generally. All persons who have
executed this Agreement on behalf of a party, or who will execute any
agreement or instrument contemplated by this Agreement on behalf of a
party, have been duly authorized to do so by all necessary corporate
action.
11.2. GOVERNMENT REQUIREMENTS. Licensor represents and warrants that
any products or services provided under this Agreement, as delivered to
Lilly, will comply will all U.S and European Union country, federal and
state laws, regulations, rules or orders. Licensor represents and
warrants that to its knowledge any products or services provided under
this Agreement, as delivered to Lilly, comply with all other
international, country, federal and state laws, regulations, rules or
orders. Upon one hundred twenty (120) days written notice. Licensor
shall certify to Lilly that the products or services comply with a
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
4
country or state laws, regulations, rules, or orders where Lilly is
conducting a clinical trial using the Software. Upon written notice
from Lilly that any service or product provided under this Agreement,
as delivered to Lilly, does not comply with any international, country,
federal or state laws, regulations, rules or order, Licensor shall use
its best efforts to remedy such compliance breach within one hundred
twenty (120) days at no cost to Lilly. Furthermore, Licensor shall in
good faith execute any and all agreements that Lilly reasonably
requests Licensor to execute in order that Lilly may comply with Health
Insurance Portability and Accountability Act ("HIPAA").
11.3. MAINTENANCE SERVICES. Licensor warrants and represents that
Maintenance Services for a Product shall be available from Licensor for
the current version of the Product and the immediately proceeding
version.
11.4. INSURANCE. Without limiting Licensor's liability to Lilly or
third parties hereunder. Licensor shall maintain Commercial General
Liability Insurance to include contractual and products/completed
operations coverages to the extent covered by insurance to meet its
indemnification obligations under this Agreement or loss as required by
applicable federal, state, or local laws, regulations or orders. All
such insurance shall be primary and not contributory with regard to any
other available insurance to Lilly in the amount of not less than ten
million dollars. All such insurance policies shall name Lilly and its
Affiliates as an additional insured and contain a waiver of
subrogation. Licensor represents and warrants that it shall file all
claims made under this Agreement with its insurance carriers.
11.5. COMPLIANCE WITH LILLY POLICIES. Licensor agrees to reasonably
assure that its employees will follow Lilly policies while at any Lilly
site; provided Lilly provides Licensor with copies of such policies.
11.6. GIFTS AND GRATUITIES. Licensor, its employees and agents shall
not give or offer to give any material gifts or gratuities of any kind
whatsoever to any Lilly employee or members of their families. In the
event that Licensor is approached by anyone suggesting fraudulent or
unethical behavior with regard to Licensor's business activities with
Lilly, or if any request is made to Licensor, its employees or agents
by any Lilly employees or members of their families for gifts or
gratuities of any kind, Licensor agrees to immediately notify Lilly
Procurement Management. Licensor certifies by execution of this
Agreement that it knows of no material gifts or gratuities, or any kind
whatsoever, paid to Lilly employees or members of their families by
Licensor, Licensor's employees, or agents during the past two (2)
years, except as otherwise set forth in writing to Lilly Procurement
Management as an exhibit to this Agreement. Licensor agrees to
immediately notify Lilly Procurement Management in writing of any
violations of this subsection.
11.7. PENDING LITIGATION. Licensor represents and warrants to Lilly
that there is no action, suit, claim, investigation, or proceeding
pending, or to the best of Licensor's knowledge, threatened against, by
or affecting Licensor or the Product which, if adversely decided, might
adversely affect Licensor's ability to enter into this Agreement,
Licensor's performance of its obligations herein, or Lilly's use of the
Software. Licensor further represents and warrants that it does not
know of any basis for any such action.
11.8 CHANGE OF CONTROL WARRANTY. Licensor represents and warrants
to Lilly that no change of control with respect to Licensor is being
considered, planned or pending by the Board of Directors or management,
or to its knowledge the shareholders, of Licensor or by any affiliate
of Licensor.
11.9 DEBARMENT. Licensor represents and warrants that Licensor, and
to the best of its knowledge its officers, directors, employees and
agents, have not been debarred under any federal, state or local law,
regulation, rule or order, including, but not limited to, the Generic
Drug Enforcement Act of 1992. In the event any pending proceeding or
threatened debarment of Licensor or its officers, directors, employees
or agents, Licensor shall immediately notify Lilly of such proceeding
or threatened debarment.
11.10 DATA LOSS AND RECOVERY. In the event of data loss caused by
the Software or Software failure, including, but not limited
to, a Software failure resulting from an error, malfunction or
overloading. Licensor shall undertake its best efforts to
restore or recover any data or results at no costs to Lilly
within a commercially reasonable time.
11.11 FINANCIAL STATEMENTS. As of the date provided. Licensor
represents and warrants that all schedules, documents,
financial statements and materials provided to Lilly as part
of any due diligence requests or RFP, if any, contain no
untrue statement of material fact or omit a material fact
necessary to make the statements contained therein not
misleading. In the event that financial statements are
provided to Lilly, as of the date provided, the financial
statements present fairly and accurately in all material
respects the financial position of Licensor, the results of
its operations and costs and expenses for the periods
specified and have been prepared in conformity with Generally
Accepted Accounting Principles. Upon request by Lilly,
Licensor agrees to provide Lilly with copies of its audited
annual financial statements and unaudited quarterly financial
statements as part of Lilly's ongoing vendor management
program.
12. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF
LAW OR OTHERWISE, REGARDING OR RELATING TO * HEREUNDER OR IN CONNECTION
HEREWITH. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. * REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING * WHETHER MADE BY
LICENSOR EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS
AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY LICENSOR FOR *.
13. TERM. The License granted pursuant to this Agreement shall commence
upon execution of this Agreement and shall continue in perpetuity, subject to
the terms of this Agreement unless terminated in accordance with the provisions
detailed herein.
14. TERMINATION. This Agreement and the License may be terminated as
follows:
14.1. By Licensor upon thirty (30) days advance written notice for
the material breach by Lilly of any of its obligations under this
Agreement if Lilly has not cured such breach within such notice period.
Licensor shall not be permitted to terminate this Agreement or any
License granted hereunder in the event Lilly breaches its obligations
relating to Exhibit 2. Maintenance Services.
14.2. If Licensor substantially fails to perform in accordance with
its obligations under this Agreement, Lilly may notify Licensor of its
breach of this Agreement. Within the thirty (30) days following such
notice, Licensor shall exercise its best efforts to correct such
failure to perform and shall upon correction immediately notify Lilly.
Lilly may terminate this Agreement if Licensor does not correct such
failure to perform within thirty (30) days following notice by Lilly.
Lilly also may terminate this Agreement if any representation, warranty
or obligation contained or referred to herein has been materially
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
5
breached, provided that Licensor has failed to cure such breach within
such thirty (30) days.
14.3 Sixty (60) days after termination of this Agreement pursuant
to this Section, Lilly shall immediately discontinue further use of the
Software and destroy all such copies of the Software. Lilly shall, upon
written request by Licensor, provide Licensor with written
certification indicating the destruction of all such copies of the
Software in Lilly's possession or under its custody or control.
14.4. Without in any way prejudicing any legal relief or remedy,
upon termination by Lilly pursuant to this Section. Lilly, shall
receive from Licensor at no additional charge a nonexclusive
nontransferable, irrevocable, fully paid-up, world-wide, perpetual
license to use the Product and/or Documentation for the licenses Lilly
has paid for and a pro-rata refund of amounts paid hereunder by Lilly
for any Maintenance Services.
14.5. DATA RIGHTS UPON TERMINATION. Upon termination of this
Agreement, Licensor grants Lilly an irrevocable, perpetual,
royalty-free right and license to use, execute, display, copy,
manipulate and create derivatives of any data or results generated as a
result of the use of the Software or Product.
14.6. MAINTENANCE. The Maintenance Services Agreement attached
hereto as Exhibit 2 and incorporated herein by reference shall apply to
all Products licensed or sold to Lilly hereunder as set forth in
Appendix A, shall become effective upon acceptance of the Products by
Lilly. Notwithstanding anything else in the Agreement, if Lilly
terminates maintenance, it shall not result in a termination of the
Software Licenses granted in this Agreement.
15. SURVIVAL. The provisions in Sections 5, 8, 9, 11, and 16 through 30
shall survive acceptance and, payment under, and termination of, this
Agreement.
16. USE OF NAME AND PUBLICITY. Licensor agrees that it shall not, without
prior written consent of Lilly in each instance, use in advertising, publicity
or otherwise the name of Lilly, or any partner or employee of Lilly, nor any
trade name, trademark, trade device or simulation thereof owned by Lilly, or
represent, directly or indirectly, that any product or any service provided by
Licensor has been approved, recommended, certified, or endorsed by Lilly.
Licensor and Lilly agree not to advertise any affiliation with each other under
this Agreement and not to publicly reveal the existence of this Agreement or any
of the terms of this Agreement, without the prior written consent of the
parties. Upon Lilly written consent, which will not be unreasonably withheld,
Licensor may use Lilly's name, but no terms and conditions of this Agreement or
other facts of the parties' relationship, in a list of its customers.
17. CONFIDENTIALITY, PROPRIETARY NATURE OF INFORMATION. The parties hereto
acknowledge that all information and documents disclosed by a party, or which
come to the receiving party's attention during the course of its performance of
its obligations under this Agreement, constitute a valuable asset of and are
proprietary to the disclosing party. Therefore, each party shall keep
confidential and not disclose or otherwise make available to any third party any
confidential information, advice or material of any nature that is provided or
made available by the other party, including but not limited to, any written
reports or other data, without the prior written consent of the other party.
This provision shall survive termination of this Agreement.
This section shall not apply to any information that: (i) is in or comes into
the public domain through no breach by the recipient of the information of its
obligations under this Agreement: (ii) the recipient acquires from a third party
who owes no obligations of confidence to the other party to this Agreement in
respect thereof: (iii) was already known to the recipient at the time it
received such information from the other party to this Agreement as shown by the
recipient's prior written records; or (iv) is independently developed by the
receiving party without use of the other party's confidential information.
If either Licensor or Lilly is requested or required by any legal or
investigative process to disclose any information that it is not permitted to
disclose, that party shall provide the other with prompt notice of each such
request and the information requested so that the other party may seek to
prevent disclosure or the entry of protective order. If disclosure is required
and a protective order is not obtained, the party from whom disclosure is
required shall disclose only such information that it is advised by its counsel
is legally required to be disclosed.
Due to the nature of the confidential information, the parties shall have the
right to seek equitable relief to enforce any right arising hereunder or to
prevent or cure any breach of this Section, without in any way prejudicing any
available legal relief. Such equitable relief may include, but is not limited
to, the seeking of a temporary or permanent injunction, restraining order or
order for specific performance, and may be sought with or without prior notice,
depending on the circumstances.
18. INDEMNIFICATION.
18.1. INFRINGEMENT INDEMNIFICATION. In the event of an claim by a
third party against Lilly that any Software infringes a patent, or any
copyright or trade secret. Licensor shall indemnify, defend and hold
Lilly harmless from any loss, cost, liability or expense, including
reasonable attorneys' fees arising from such claim. If, as a result of
any such claim of infringement. Licensor or Lilly is enjoined from
using any Product and/or Documentation, or if Licensor believes that
the Software is likely to become the subject of a claim of
infringement. Licensor will, at its option and its expense: (i) procure
for Lilly the right to continue using the Product and/or Documentation:
or (ii) replace or modify the Product and/or Documentation so that it
becomes non-infringing (which modification or replacement shall not
adversely affect the applicable specifications for, or the use or
operation by Lilly of, the Product and/or Documentation); or (iii) if
the Product and/or Documentation is purchased, and the other options
stated are not practicable, repurchase the Product and/or Documentation
from Lilly; or (iv) if the Product and/or Documentation is licensed,
and the other options stated are not practicable, remove such Product
and/or Documentation from Lilly's site(s) and refund to Lilly licenses
fees paid by Lilly for the Software based on a eight (8) year straight
line depreciation, and release Lilly from any further liability under
this Agreement. This provision will survive termination of this
Agreement. THE FOREGOING STATES THE SOLE REMEDY OF LILLY AND THE ENTIRE
OBLIGATION OF LICENSOR WITH RESPECT TO INFRINGEMENT.
18.2 GENERAL INDEMNIFICATION. Each party (the "Indemnifying Party")
shall defend, indemnify, and hold the other party and its Affiliates,
and the officers, directors, agents, employees and assigns or
successors of each (the "Indemnified Party"), harmless from and against
any and all claims, demands, suits, judgments, losses, or expenses of
any nature whatsoever (including attorney's fees) arising directly or
indirectly form or out of: (i) any negligent act, error, or omission of
the Indemnifying Party, its subcontractors or their respective
officers, directors, agents, subcontractors, invitees or employees;
(ii) any breach of the Indemnifying Party's obligations or
representations as set forth herein; (iii) any material data loss
caused by the Software or Software failure not restored or recovered by
Licensor to the extend covered by Licensor's insurance; or (iv)
injuries to persons (including death) or loss of, or damage to,
property, occasioned by negligence, unlawful act, or willful misconduct
of the Indemnifying Party's personnel, subcontractors, or agents.
Except for a party's liabilities as set forth in Section 18.1, and 17
of this Agreement, any damages that either party is required to pay for
any reason whatsoever and regardless of the form of action, in the
aggregate, shall be limited to one time the amount of the total fees
payable to Licensor hereunder. In addition, Lilly shall indemnify and
hold Licensor and its affiliates, directors, officers, employees and
agents (including successors and assigns) harmless against any claim
arising out of or relating to any accident, adverse event, illness,
disability, death or other medical-related problem in any way arising
out or relating to, or alleged to arise out of or relate to, (i) any
clinical trial of an Investigational Product for which any Product was
used and (ii) any product derived from or based on such clinical trial
or Investigational Product. Notwithstanding the foregoing, if any claim
against Licensor for breach of this Agreement is a claim covered by any
insurance policy maintained by Licensor, any recovery of proceeds under
such policy shall be paid to Lilly to the extent Lilly's damages exceed
the foregoing limitation of liability. Licensor shall vigorously pursue
any applicable policy claim as requested by Lilly.
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
6
18.3 Except for the obligations in Section 17, neither Licensor nor Lilly
shall be liable to the other party for any special, punitive or consequential
damages, or loss of profits arising out of or in connection with their
respective obligations under this Agreement.
19. ASSIGNMENT. The duties under this Agreement may not be delegated, and
the rights under this Agreement may not be assigned, to any third party
in either case without the prior written consent of the non- assigning
party, which consent shall not be unreasonably withheld; provided,
however, that the either party may assign its rights and delegate its
duties hereunder, with notice to but without consent of the other
party, to any corporate successor to such party by merger, purchase of
assets and assumption of liabilities, acquisition, reorganization, or
otherwise, or to any Affiliate. Notwithstanding the foregoing, in no
event shall Lilly assign its rights under this Agreement in whole or in
part (including to a party that becomes an Affiliate after the date of
this Agreement) in connection with a sale or merger of Lilly or
acquisition by Lilly valued at $50 billion or more (whether in cash,
stock or other property) if the other party to such transaction has an
existing agreement with Licensor.
20. ADDITIONAL PROVISIONS. Additional provisions, if any, are set forth in
Appendix A.
21. AUDIT PROVISION. During the term of this Agreement Lilly will have the
right, at its expense and upon not less than five (5) working days
prior written notice, to audit Licensor's systems and services, with
specific emphasis on Licensor's security and change control procedures.
Such audit, which may be conducted by Lilly personnel under obligations
of confidentiality or by an independent auditing firm that Licensor has
approved, will not interfere unreasonably with Licensor's business
activities, and will be conducted no more than once per calendar year,
unless Lilly has received a request from the U.S. Food and Drug
Administration (or agency with similar regulatory authority and
jurisdiction over Lilly's business), or unless a previous audit has
disclosed a material non-conformance to the standards required by the
appropriate agencies. If the audit shows material non-conformance to
the obligations set forth in this Agreement, then Licensor will use
commercially reasonable efforts to remedy the non-conformance as soon
as practicable. If the non-conformance continues for more than 15 days,
then Lilly shall have the option to declare Licensor in breach of this
Agreement. Lilly will use information received during an audit solely
for the purposes of the Agreement and will otherwise maintain the
confidentiality of such information. In addition, upon request,
Licensor shall make available to the FDA all records required by
governmental regulations related to the Software and any data or
results produced by the Software. In any governmental or regulatory
agency gives notice of its intention to conduct an audit or take any
other regulatory actions with respect to the Software or any data or
results produced by the Software, Licensor shall promptly give Lilly
notice thereof, and Lilly shall have the right to be present at any
such audit or regulatory action.
22. UCITA. Licensor and Lilly hereby acknowledge and agree that any
provisions of any state law adopting exactly or in modified form the
Uniform Computer Information Transactions Act ("UCITA") shall not be
applicable to this Agreement. Furthermore, both Licensor and Lilly
waive any and all rights arising from any such law.
23. CHOICE OF LAW AND VENUE. This Agreement and all matters arising out of
or relating to this Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, excluding all choice
of law provisions. All proceedings relating to or arising out of the
subject matter hereof shall be maintained exclusively in the courts
situated in ▇▇▇▇▇▇ County, Indiana, and Licensor hereby consents to
personal jurisdiction and venue therein and hereby waives any right to
object to personal jurisdiction or venue therein.
24. ENTIRE AGREEMENT. This Agreement and all Exhibits, Schedules and
Attachments constitutes the entire agreement between the parties
regarding its subject matter. Any modification of this Agreement will
be effective only if it is in writing and signed by the parties.
25. WAIVER. None of the conditions of the Agreement shall be considered
waived unless such waiver is in writing and signed by the waiving
party. No such waiver shall be a waiver of any past or future default
breach or modification of any of the conditions of the Agreement unless
expressly stipulated in such waiver.
26. SEVERABILITY. If any provision in this Agreement is held to be invalid,
void, or unenforceable, the remaining provisions shall nevertheless
continue in full force.
27. NOTICES. Any written notices to be given hereunder by either party
shall be deemed effective upon personal delivery or upon mailing the
notice to the party to be served at the address appearing in Appendix
B.
28. FORCE MAJEURE. Neither party shall be liable to the other for failure
to perform under this Agreement if said failure results, directly or
indirectly, from government action or inaction, labor disputes,
mechanical or electrical breakdown, or natural disaster.
29. HEADINGS. The headings in this Agreement are solely for convenience of
reference and shall not affect its interpretation.
30. AMBIGUOUS TERMS. Any ambiguities in this Agreement will not be strictly
construed against the drafter of the language concerned but will be
resolved by applying the most reasonable interpretation under the
circumstances, giving full consideration to the intentions of the
parties at the time of contracting. This Agreement will not be
construed against any party by reason of its preparation.
▇▇▇ Lilly and Company
Software License Agreement - December, 2000 Edition 1.0
7
APPENDIX A - FEES AND ADDITIONAL PROVISIONS
I. FEES.
1. DESCRIPTION OF HARDWARE, SOFTWARE, AND MAINTENANCE SERVICES
ANNUAL
QUANTITY DESCRIPTION UNIT COST TOTAL COST MAINTENANCE
-------- ----------- --------- ---------- -----------
Inform(TM) Software v. 2.5 * * *
Inform Architect(TM) Software v.__ * * *
Total: * *
2. PAYMENT FOR HARDWARE, SOFTWARE, AND MAINTENANCE SERVICES
a. Software License. Lilly shall pay Licensor * for the license
of the Software, payable as follows:
- *
- *
b. Maintenance Services. * for the Initial Maintenance Term (as defined in
the Maintenance Agreement). For each subsequent term, Lilly shall pay
Maintenance fees equal to * of the Software License Fees set forth
above. * in Maintenance fees through the term ending *.
Thereafter, increases in charges for Maintenance Services will be
limited to *.
II. ADDITIONAL PROVISIONS.
a. Acceptance Testing shall include a source code and documentation audit
by Lilly.
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
2
EXHIBIT 2: MAINTENANCE SERVICES
This Maintenance Services Agreement ("Maintenance Agreement") is subject to all
terms and conditions of the Software License Agreement entered into by and
between Lilly and Licensor on March ______, 2001 ("License Agreement").
WHEREAS, Lilly wishes to obtain Maintenance Services from Licensor for the
Produce(s) specified in the License Agreement; and
WHEREAS, Licensor wishes to provide Maintenance Services for the Produce(s) on
the terms and conditions described in this Maintenance Agreement;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
Terms in this Maintenance Agreement which are capitalized have the
meanings set forth below, as defined elsewhere in this Maintenance
Agreement or in the License Agreement.
Error means an instance of failure of the Product to be operative. An
Error is a Class 1 Error if it renders continued use of the Product
commercially infeasible in Lilly's reasonable judgment. An Error is a
Class 2 Error if it makes continued use of the Product seriously
inconvenient and substantially reduces its value to Lilly, in Lilly's
reasonable judgment. All other Errors are Class 3 Errors; in
particular, all Documentation shortcomings and deviations and cosmetic
errors that do not have the economic consequences defined for Class 1
and Class 2 Errors shall be deemed Class 3 Errors.
Maintenance Services shall include the services described herein.
Support shall include, without limitation, providing a means for
answering Lilly's questions concerning use of the Product, for
providing assistance in solving problems encountered in Lilly's use of
the Product, and for the reporting and correction of suspected Errors.
Support Hours shall be *. In addition, support shall be available *.
Beginning on January 1, 2002, Support Hours will be *. Until December
31, 2001, Lilly may purchase additional support *.
2. TERM AND TERMINATION.
2.1. TERM. The initial term of this Maintenance Agreement shall
commence upon the termination of the Warranty Period for the
Product covered by this Maintenance Agreement and continue
through December 31, 2001 (the "Initial Maintenance Term").
Each subsequent term shall be for a period of one (1) year and
this Maintenance Agreement shall be automatically renewed on
an annual basis unless earlier terminated as provided herein.
2.2. TERMINATION BY LILLY. After December 31, 2005, Lilly may
terminate the provision of Maintenance Services for the
Product covered by this Maintenance Agreement at any time upon
thirty (30) days prior notice to Licensor, whereupon the
obligations of the parties under this Maintenance Agreement
relating to such Product not expressly surviving shall cease.
2.3. TERMINATION BY LICENSOR. If Licensor no longer continues to
make Maintenance Services or comparable services thereto
generally available to its customers for such Product, the
obligations set forth in Section 5.9 Transitional Support of
this Maintenance Agreement shall apply. Thereafter, in either
event, Licensor may terminate the provision of Maintenance
Services to such particular Product.
2.4. TERMINATION BILLING. Licensor shall refund any prepaid charges
for Maintenance Services pro rata from the effective date of
any permitted termination. Lilly shall pay any charges for
Maintenance Services rendered pro rata to the effective date
of any permitted termination.
3. CHARGES. Licensor shall invoice Lilly for charges due and payable for
Maintenance Services as set forth on Exhibit A within thirty (30) days
prior to each annual anniversary, and Lilly shall pay undisputed
invoices within thirty (30) days of the date of invoice. Lilly shall
not be obligated for any Maintenance Services of any kind rendered by
Licensor except in accordance with this Maintenance Agreement.
4. REINSTATEMENT. After any lapse of Maintenance Services, Lilly may
reinstate Maintenance Services upon the terms and conditions of this
Maintenance Agreement. The cost of reinstatement shall be what should
be due at the time of reinstatement as though no lapse occurred, and,
in addition, a penalty in the amount of ten percent of the maintenance
charges Licensor could have billed Lilly, had Lilly continued
Maintenance Services during the period of the lapse.
5. SERVICE RESPONSIBILITIES.
5.1. MAINTENANCE. Licensor shall provide Lilly the Maintenance
Services described in this Maintenance Agreement with respect
to each covered Product, including providing Updates, Upgrades
and corrections. Licensor shall correct all Errors reported by
Lilly by means of the procedures established by this
Maintenance Agreement. Maintenance Services shall be performed
in a timely and professional manner by qualified maintenance
technicians familiar with each Product and its operation.
Licensor shall provide, upon Lilly's request, periodic reports
on the status of Maintenance Services requested by Lilly.
5.2. SUPPORT AND RESPONSE TIME. Licensor shall provide Support
during the Support Hours. Licensor will also have personnel on
call outside of the Support Hours from whom Lilly may request
Maintenance Services. Maintenance Services, both in and
outside of the Support Hours, shall be provided as set forth
below.
5.3. CALLING LIST. Licensor shall provide to Lilly, and keep
current, a list of persons and telephone numbers for Lilly to
contact for Support. Such Calling List shall include: (1) the
first contact for the answer or assistance desired, which
shall be the Help Desk, and (2) the persons in successively
more responsible or qualified positions to provide the answer
or assistance desired; provided however that Lilly must follow
the procedures for Error Reporting set forth below. Lilly
shall identify up to twenty (20) people at each site that may
contact Licensor for development and related support
5.4. ERROR REPORTING. If Lilly desires Maintenance Services, Lilly
shall contact Licensor's telephone support service in
accordance with the calling List. Licensor's duly qualified
personnel shall respond to Lilly's initial telephone call with
offsite telephone consultation, assistance, and advice
relating to Support of the Product * of Lilly's * for
Maintenance Services or, as to requests for assistance made
outside of the Support Hours, within *. If Licensor fails to
so respond; or if Lilly is unable, after * telephone Support
service; or if the designated person from the Calling List is
not available when Lilly makes contact with Licensor to obtain
consultation and assistance, then Lilly shall attempt to
contact the next more responsible or qualified person on
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
4
the Calling List until contact is made and a designated person
responds to the call.
5.4.1. After Lilly reports a suspected Class 1 or 2 Error,
Licensor shall provide a correction or workaround as
soon as possible. Lilly shall consult with Licensor
to convey the severity of the Error. If Licensor has
not diagnosed and corrected a Class 1 or Class 2
Error on the same day as Lilly's initial telephone
call, Lilly shall submit to Licensor a listing of
output and such other data as Licensor may request
and is reasonably available to Lilly in order to
reproduce operating conditions similar to those
present when Lilly detected such Error.
5.4.2. For Class 1 Errors, Licensor shall provide a
correction or a workaround reasonable in Lilly's
judgment, in any event within * after *. Licensor
shall, upon Lilly's request and without limitation,
assign fully qualified technicians to work with Lilly
at Lilly's site without interruption (i.e., 24 hours
per day) until Licensor provides a Correction or
workaround reasonable in Lilly's judgment. Lilly
shall pay travel and expense costs in connection
herewith in accordance with Lilly's contractor travel
policy.
5.4.3. For Class 2 Errors, Licensor shall provide a
correction or a workaround reasonable in Lilly's
judgment, in any event within * after *. Licensor
shall, upon Lilly's request and without limitation,
assign fully qualified technicians to work with Lilly
at Lilly's site during Lilly's regular business hours
until Licensor provides a Correction or a workaround
reasonable in Lilly's judgment. Lilly shall pay
travel and expense costs in connection herewith in
accordance with Lilly's contractor travel policy.
5.4.4. For Class 3 Errors, Licensor shall correct such Error
by modifying the Product no later than the next
Upgrade, unless Licensor has scheduled release of
such Upgrade * after *, in which case Licensor shall
correct the Error in the following Upgrade.
5.5. UPDATES AND UPGRADES. Licensor shall provide to Lilly as part
of Maintenance Services Updates and Upgrades to the Product on
a schedule as is customary in the software industry, including
without limitation, whenever Licensor makes such Updates and
Upgrades generally available to its customers.
5.6. CONTINUING SUPPORT. Lilly may decline to install an Update or
Upgrade offered by Licensor. In such event. Licensor shall
continue the Maintenance Services for the most current Version
of the Software and the immediately preceding Version. For an
additional annual fee equal to *, for such extended support
("Extended Support Fee"), Licensor shall continue the
Maintenance Services for whatever version of the Product that
is installed at Lilly, subject to Licensor's right to
terminate this Maintenance Agreement as permitted in Section
2.3 Termination by Licensor.
5.7. COMPATIBILITY. Licensor shall ensure that the technical
environment recommendations for the operating system software
to be used in conjunction with the Software shall at all times
be a supported version of said software.
5.8. EARLY VERSION. Licensor shall, upon Lilly's request, provide
early versions of Updates or Upgrades AS IS with no warranty
or maintenance coverage prior to general release in order to
provide development feedback. At Lilly's request, Licensor
will meet with Lilly at least quarterly to discuss general
interest features, the future design and development cycle for
the Product. Lilly may send a reasonable number of employees
to attend end-user group meetings sponsored by Licensor. Lilly
shall pay all out-of-pocket expenses associated therewith.
5.9 TRANSITIONAL SUPPORT. If the provision of Maintenance Services
to a particular Product covered by this Maintenance Agreement
is terminated by Licensor as allowed in Section 2.3
Termination by Licensor, Licensor shall (ii) give Lilly at
least one hundred and eighty (180) day's prior notice, and
(ii) use commercially reasonable efforts to find for Lilly a
third party acceptable to Lilly to offer Maintenance Services
for such Product at a price comparable to the charges set
forth herein for as long as the Lilly uses the Product
commercially in the conduct of its business. Licensor shall
assist Lilly to achieve a smooth transition to any other
vendor of maintenance services after any termination of die
provision of Maintenance Services to a particular Product
covered by this Maintenance Agreement, or of this Maintenance
Agreement.
5.10 MODIFICATIONS. Licensor shall provide, at Lilly's request, a
total of twenty-four(24) hours per year of senior technical support to
be used for training, custom modifications to the Product and/or
on-site analysis.
6. LILLY RESPONSIBILITIES.
6.1. SUSPECTED ERRORS. If Lilly discovers any suspected Error in
the Program, Lilly shall analyze the suspected Error to
determine if it is the result of Lilly's misuse or
misunderstanding of the Product or by the performance of a
third party before seeking Licensor's assistance.
6.2. UNAUTHORIZED MODIFICATIONS. In the event Licensor determines
that the problem reported by Lilly is directly related to
unauthorized alterations of the Product by Lilly or the
performance of a third party, then Licensor may charge for
employee time expended at the current time and material rates
agreed upon less discount in addition to reasonable
out-of-pocket expenses; or at Lilly's option; Licensor shall
be released from maintenance obligations for the modified
portion of the Product.
7. BREACH AND REMEDIES. If Licensor does not deliver the correction for
the suspected Error within the times allowed by Section 5, Service
Responsibilities, even if Licensor has delivered a reasonable
workaround. Licensor shall provide, within ten (10) days after such
allowed times, a written analysis of the problem and a written plan to
supply Lilly with a correction that will not degrade performance or
functionality within ten (10) days after such allowed times. If Lilly
rejects such plan and Licensor has not delivered a correction that will
not degrade performance or functionality within ten (10) days of
Lilly's notice of rejection. Licensor shall be considered to be in
breach.
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
▇
▇▇▇▇▇▇▇▇ ▇ - NOTICES
If to Lilly:
Global Sourcing Manager - IT Procurement
▇▇▇ ▇▇▇▇▇ and Company
Lilly ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇ ▇▇▇▇▇ and Company
Lilly ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to Licensor:
Phase Forward Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,▇▇ ▇▇▇▇▇
Attn: Chief financial Officer
With a copy to:
Phase Forward Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
▇▇▇ ▇▇▇▇▇ and Company
Software License Agreement - December, 2000 Edition 1.0
3
APPENDIX A - 2 ADDITIONAL SOFTWARE AND PROVISIONS
This Appendix A-2 is entered into between ▇▇▇ Lilly and Company ("Lilly") and
Phase Forward Incorporated ("Licensor") pursuant to the Software License
Agreement between the parties dated March 15, 2001 (the "Agreement"). The
Effective Date of this Appendix - 2 shall be the date of last execution below.
I. FEES AND TERM.
1. DESCRIPTION OF SOFTWARE.
QUANTITY DESCRIPTION LICENSE TERM TOTAL COST ANNUAL MAINTENANCE
-------- ------------------------------------ ------------ ---------- ------------------
Clintrial Integration Solution (CIS) 4 years * *
2. INITIAL TERM OF LICENSE(S): Commences on the Effective Date and continues
through December 31, 2006.
The parties hereto expressly declare that in the event of a conflict between the
provisions of this Appendix - 2 and the Agreement, the provisions of this
Appendix - 2 shall prevail. Notwithstanding any sections in the Agreement
relating to the term of licenses, the preceding sentence shall in particular,
but not exclusively, apply to the license term as set forth above. For avoidance
of doubt, any license term specified in this or any other License Order Schedule
shall supersede the license term stated in any section of the Agreement.
3. PAYMENT FOR SOFTWARE
Lilly shall pay Licensor * for the license of the Software, payable
as follows:
*
DATE * * * *
Amount * * * *
4. WARRANTY
Notwithstanding anything in the Agreement to the contrary, the Software Warranty
Period for CIS shall commence on June 30, 2003 and continue for * days
thereafter.
II. ADDITIONAL PROVISIONS.
1. RENEWAL TERMS.
After the Initial Term, Lilly shall have the right, but not the obligation, to
renew the CIS License for an additional 6 years. Should Lilly exercise such
option, the license will be automatically renewed for successive one-year terms
(each, a "Renewal Term") at the rates set forth below for calendar years
2007-2012, unless Licensee provides written notice to Phase Forward at least
thirty (30) days prior to the beginning of any Renewal Term that Licensee does
not wish such license to be renewed. Following 2012, increases in License fees
for CIS will be limited to *.
DATE * * * * * *
Amount * * * * * *
2. INFORM SOFTWARE MAINTENANCE
If Lilly elects to continue maintenance services for the InForm software in
calendar years 2006 or 2007, then the maintenance fee for each year shall be *.
3. The parties acknowledge that Section 6 of the Agreement shall not apply to
this Appendix 2-A.
IN WITNESS WHEREOF, LILLY and Licensor have caused duly authorized
representatives of the respective parties to execute this Agreement on the
date(s) set forth below.
▇▇▇ ▇▇▇▇▇ AND COMPANY LICENSOR
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- ----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Global Sourcing Manager II Title: Vice President, Finance
Phase Forward Incorporated
Date: 30 June, 2003 Date: June 30, 2003