Exhibit 10.10
ANNUAL DATABASE SERVICES AGREEMENT
THIS AGREEMENT is made as of the 29th day of September, 1999 (the
"Effective Date"), by and between Roche Diagnostics Corporation, headquartered
at ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Roche") and Yankelovich
Partners, Inc., headquartered at ▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, ("YPI")
WHEREAS, Roche Diagnostics (Roche) has requested that Yankelovich Partners
(YPI), provide certain database marketing services and YPI has agreed to
provide such database consulting, marketing and maintenance services as more
fully set forth on Schedule A attached hereto and made part hereof.
NOW, THEREFORE, in consideration of the conditions and covenants set forth
hereinafter, it is agreed as follows:
1. Retention. Roche hereby retains YPI to provide database consulting, marketing
and maintenance services as set forth on Schedule A (the "Services") effective
as of the Effective Date and YPI hereby accepts such retention by Roche
2. Services. YPI shall perform the Services in accordance with the
Specifications outlined in detail in the Marketing Operations Manual developed
and maintained by YPI and approved by Roche.
3. Staffing. UPI shall provide sufficient experienced and qualified personnel to
perform the Services.
4. Fees and Expenses. YPI shall be compensated for the Services on a time and
materials basis. The Fees shall be paid by Roche to YPI within thirty (30) days
of the date of invoice. An estimate of the Fees with a detailed breakdown is set
forth on Schedule B. YPI and Roche agree to meet quarterly to review the Fees
for the immediately preceding quarter. In the event that such review by YPI and
Roche reveals the Fees to be higher or lower than estimated, the parties will
mutually agree upon appropriate revisions to Schedule A and B for the remainder
of the term hereof. The Fees are exclusive of all travel and lodging expenses,
and other costs which shall be billed separately (the "Expenses"). Roche shall
reimburse UPI for Expenses within thirty (30) of Roche's receipt of request for
payment. Expenses in excess of the ***** monthly estimate must be
pre-approved by Roche prior to those expenses being incurred.
5. Additional Services. Upon the terms and subject to the conditions contained
herein, YPI agrees to provide to Roche additional services not covered in
Schedule A. The scope of any additional services requested by Roche shall be
documented in proposals or work orders with cost estimates, which require Roche
approval prior to any such additional services being provided.
6. Confidentiality.
6.1 "Confidential Information" shall mean any information relating to or
disclosed in the course of the Agreement by the disclosing party.
Confidential Information shall not include any information which is or
becomes generally available to the public without breach of this
Agreement; is in the possession of a party prior to its disclosure by the
other party; becomes available from a third party not in breach of any
obligations of confidentiality to the disclosing party, has been
independently developed by the non-disclosing party or; is required to be
disclosed to any governmental agency or a court of competent jurisdiction
pursuant to a written order, subpoena or by operation of law, provided the
subpoenaed party has given the disclosing party prior advance written
notice in order that the disclosing party may attempt to obtain a
protective order limiting disclosure and use of the information disclosed.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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6.2 Each party acknowledges that it will receive Confidential Information
of the other party relating to its technical, marketing, product and/or
business affairs. All Confidential Information of the other party shall be
held in strict confidence and shall not be disclosed or used for any
purpose other than for the benefit of the disclosing party in performance
of this Agreement, without express written consent of the other party,
except as may be required by law. Each party shall use reasonable measures
and reasonable efforts to provide protection for Confidential Information,
including measures at least as strict as those such party uses to protect
its own Confidential Information.
6.3 Neither Roche nor YPI shall make any announcement or other disclosure
to any third party of the transactions contemplated by this agreement
without the prior approval of the other party. All requests by YPI to
Roche in this regard shall be directed to Roche's Consumer Marketing
Manager.
7. Intellectual Property.
7.1 All right, title and interest in any software program code used in
conjunction with YPI's delivery of Services hereunder that was owned or
controlled by YPI prior to the System development commencing for the Roche
Marketing System (MCAD) dated November 1, 1997, or developed without
additional costs to Roche, or is based upon reusable YPI methodologies
("YPI Materials") shall be and remain the property of YPI. YPI grants to
Roche a perpetual, royalty free, right to use, modify, transfer and
maintain the yPI Materials as is necessary, solely in connection with the
operation of MCAD.
7.2 Unless otherwise specified in a Statement of Work, all deliverables as
described in Schedule A ("Deliverables) prepared for exclusive and solely
for Roche by YPI under this Agreement are the property of Roche and all
title and interest therein shall vest in Roche and shall be deemed to be
in "work made for hire" and made in the course of the services rendered
hereunder (the "Exclusive Materials"). It is understood that specifically
excluded from Exclusive Materials are yPI Materials. To the extent that
title to any such Exclusive Materials may not, by operation of law, vest
in Roche or such works may not be considered works made for hire, all
right, title and interest therein are hereby irrevocably assigned to
Roche. All such materials, including materials used in development shall
belong exclusively to Roche with Roche having the right to obtain and to
hold, in its own name, copyrights, registrations or such other protection
as may be appropriate to the subject matter, including any extensions and
renewals thereof. YPI agrees to give Roche, and any persons designated by
Roche, any reasonable assistance required to perfect the rights defined in
this Section.
7.3 Nothing herein shall be construed to grant any right or license to YPI
in or to any Roche product, marketing, competitive and financial
information ("Roche Information") or other material provided to YPI
hereunder by Roche, other than the right to use such material solely on
behalf of Roche in accordance with the terms hereof. All of the foregoing
materials, including without limitation any and all copyrights, trademarks
or trade names, are and shall remain the property of Roche.
7.4 Nothing herein shall be construed to ▇▇▇▇▇ ▇▇▇▇▇ rights to property
owned by others and used in conjunction with YPI Materials. Roche shall be
required to obtain such licensing as may be required for the use of such
third-party property.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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8. Warranties.
8.1 YPI represents and warrants that: (a) all of the services to be
performed by it hereunder will be rendered using sound, professional
practices and in a competent and professional manner by knowledgeable,
trained and qualified personnel; (b) YPI is the owner of or otherwise
has the right to use and distribute all materials and methodologies
used in connection with providing the Deliverables, except as otherwise
provided herein; (c) YPI will comply with all applicable federal, state
and local laws in the performance of its obligations hereunder; (d) the
Deliverables are and will be free of any software disabling devices or
internal controls, including, without limitation, time bombs, viruses,
or devices of a similar nature; (e) the Deliverables (other than
information or materials supplied by Roche and reproduced accurately in
the Deliverables) shall not infringe upon any third party copyright,
patent, trademark, trade secret or other proprietary right; (f) all
Deliverables hereunder will be designed to be compatible and operate in
conjunction with all software delivered under this Agreement; and (g)
YPI shall perform in conformance with this Agreement.
8.2 Roche represents and warrants that: (a) the use, as contemplated by
this Agreement, of the material supplied by Roche hereunder shall not
infringe any copyright, patent, trademark, trade secret or other third
party proprietary right; (b) there is no impediment to Roche's
performance of its obligations hereunder; and (c) Roche shall perform in
conformance with this Agreement.
9. Indemnification.
9.1 YPI agrees to indemnify, defend and hold harmless Roche, its
directors, officers, and employees in any action brought against same
with respect to any claim, demand, cause of action, debt or liability,
including reasonable attorneys' fees, based upon an allegation: (i) if
true, would constitute a breach of any of YPI's representations,
warranties, or agreements hereunder; (ii) arises out of the negligence
or willful misconduct of YPI; or (iii) any of the claimed Deliverables
or services to be provided by YPI hereunder infringe or violate any
patent, copyright, trademark, trade secret, license, or any other
contract or other right of any third party.
9.2 Roche agrees to indemnify, defend and hold harmless YPI, its
directors, officers, and employees in any action brought against same
with respect to any claim, demand, cause of action, debt or liability,
including reasonable attorneys' fees, based upon an allegation
that: (i) if true, would constitute a breach of any of Roche's
representations, warranties, or agreements hereunder; (ii) arises out of
the negligence or willful misconduct of Roche; or (iii) any of the
Roche information provided by Roche hereunder infringe or violate any
patent, copyright, trademark, trade secret, license, or any other
contract or other right of any third party.
9.3 In claiming any indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of
any such claim. The indemnified party may, at its own expense, assist
in the defense if it so chooses, provided that the indemnifying party
shall control such defense and all negotiations relative to the
settlement of any such claim and further provided that any settlement
intended to bind an indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably
withheld.
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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10. Limitation of Liability. Except for the indemnification obligations set
forth herein, neither party hereto will be liable for lost profits, lost
opportunities, or indirect, incidental or consequential damages under
any circumstances.
11. Term. This Agreement shall commence as of September 1, 1999 and shall
continue until December 31, 2000 or prior termination according to the
terms hereof (the "Term").
12. Termination. Either party may terminate this Agreement for any reason
with 120 days written notice. In the event of a termination of this
Agreement: (i) the provisions of Sections 6, 7, 8, 9, and 10 shall
service any termination of this Agreement, whether upon expiration of
its stated Term or termination as provided hereunder; (ii) each party
shall return all copies of Confidential Information and all other
property belonging to and/or received from the other party; and (iii)
except as otherwise stated herein, each party may pursue claims it has
against the other for any breach of terms of this Agreement. In
addition, if this Agreement is terminated while work is in process, YPI
shall provide Roche with all documentation and materials related to
such work upon payment therefor by Roche, such payment shall equal the
prorata share of the price payable hereunder commensurate with the work
performed by YPI at the time of termination.
13. General Provisions:
13.1 Force Majeure. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations or attempts
to cure any breach are delayed or prevented by reason of any act of
God, fire, natural disaster, accident, act of government, or any other
cause beyond the control of such party ("Force Majeure") provided that
such party gives the other party written notice thereof promptly and,
in any event, within fifteen (15) days of discovery thereof and uses
its best efforts to cure the delay. In the event of such a Force
Majeure, the time for performance or cure shall be extended for a
period equal to the duration of the Force Majeure, provided, however
that if the Force Majeure continues for longer than six (6) months, the
party not affected by the Force Majeure may terminate this Agreement
without any liability upon written notice to the other, other than
obligations relating to termination as set forth in this Agreement.
13.2 Partial Invalidity. Should any provision of this Agreement be
held to be void, invalid or inoperative, the remaining provisions of
this Agreement shall not be affected and shall continue in effect and
the invalid provision shall be deemed modified to the least degree
necessary to remedy such invalidity.
13.3 No Waiver. The failure of either party to partially or fully
exercise any right or the waiver by either party of any breach, shall
not prevent a subsequent exercise of such right or be deemed a waiver
of any subsequent breach of the same or any other term of this
Agreement.
13.4 Insurance. Each party shall, at all times during the term of
this Agreement, maintain all necessary insurance against losses,
claims, demands, proceedings, damages, costs, charges and expenses for
injuries or damage to any person or property which are the result of
the fault or negligence of each party in the carrying out of its
obligations under this Agreement, including, without limitation,
▇▇▇▇▇▇▇'▇ compensation, public liability, property damage, and
automobile liability.
13.5 Notices. Any notice required or permitted to be sent shall be in
writing and shall be sent in a manner requiring a signed receipt such
as authenticated Internet transmission, Federal Express or like courier
delivery, or if mailed, then mailed by registered or certified mail,
return receipt requested. Notice is effective upon receipt. Notice
shall be sent to the
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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Consumer Marketing Manager at Roche and the Chief Financial Officer of
Yankelovich with copies delivered or mailed as defined above to Roche
General Counsel.
13.6 Assignment. Neither party shall assign any of its rights or
obligations under this Agreement to any other entity without the other
party's prior written consent.
13.7 Entire Agreement. This Agreement, including Schedules A and
B, set forth the entire agreement between the parties on this subject
and supersedes all prior negotiations, understandings and agreements
between the parties concerning the subject matter. No amendment or
modification of this Agreement shall be made except in a written
agreement signed by both parties.
13.8 Governing Law and Venue. This Agreement shall be governed
in all respects by the laws of the State of Indiana, without regard to
any rules of conflict and choice of laws which would require the
application of laws of another jurisdiction.
13.9 Mediation. If any dispute arises under the terms of this
Agreement, the parties agree to select a mutually agreeable neutral
third party to help them mediate it.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
YANKELOVICH PARTNERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Title: EXECUTIVE VICE PRESIDENT
ROCHE DIAGNOSTICS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: CONSUMER MARKETING MANAGER
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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Schedule A ("Deliverables")
Initial Services/Specifications: Both parties agree that the following services
are the estimated services to be provided within the term of this agreement:
*****
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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Schedule B
Estimated Fees and Expenses (see attached Spreadsheet)
*****
***** = Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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