EXHIBIT 10.9
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
2
(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 1% 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").
(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
3
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 agreed upon 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 thcfollowing 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 PRWW
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 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
4
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 Associates harmless from any and all claim, liability, loss, damages or
expense, together win 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 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
5
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.
6.4 AD represents that it is an anchor tenant 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,
6
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.
6.13 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.
7
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.
8
Services to PRWW on behalf of AD under this Agreement, are discovered to be
unauthorized aliens, AD will immediately 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
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, such parties acting by their representatives being thereunto
duly authorized.
PREMIER RESEARCH WORLDWIDE,
LTD.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
AMERICA'S DOCTOR, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
