EXHIBIT 10.7
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION - ASTERISKS DENOTE OMISSIONS.
CONSULTING AND
[LILLY LOGO] PROFESSIONAL SERVICES
AGREEMENT
▇▇▇ ▇▇▇▇▇ AND COMPANY ("Lilly") and the consultant signing below (the
"Consultant") hereby agree as follows:
1. SCOPE OF SERVICE. The scope of services to be performed by Consultant shall
be mutually agreed to on an individual work order basis. Lilly may, from
time to time, request Consultant to submit at no cost to Lilly a written
proposal for the provision of consulting and professional services.
Consultant may thereupon submit to Lilly a written proposal regarding such
services, specifying in detail the services to be rendered, including: (a)
a description of the work product to be delivered, including, if
applicable, acceptance criteria and detailed design and functional
specifications for the deliverables thereunder; (b) the proposed
performance schedule; and (c) an estimate of Lilly's cost for such services
based on time and materials required (collectively, the "Proposal").
Consultant's stated fee may not be increased prior to acceptance by Lilly
for a period of three (3) months from the date of receipt of the Proposal
by Lilly. The parties may create a binding agreement subject to the terms
and conditions of this Agreement by adapting the contents of the Proposal,
as amended by the parties, into a written Work Order signed by both parties
which refers to this Agreement and which is substantially in the form of
the Attached Exhibit A ("Work Order"). A signed Work Order may be modified
only by a written Change Order signed by both parties which refers both to
this Agreement and to the associated Work Order, and which is substantially
in the form of the Attached Exhibit B ("Change Order"). NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, NO WORK ORDER OR CHANGE ORDER SHALL BE
EFFECTIVE UNLESS SIGNED BY THE LICENSOR'S CHIEF FINANCIAL OFFICER OR
GENERAL COUNSEL.
2. INVOICES AND COMPENSATION. Lilly shall pay to Consultant all invoiced
amounts for accepted services rendered by Consultant in accordance with
this Agreement, and for reimbursement of reasonable out-of-pocket expenses
necessarily and actually incurred by Consultant in connection with
providing such services, provided that: (i) all expenses related to travel
and lodging shall comply with Lilly's corporate travel policies; and (ii)
for all non-travel related expenses, the expenses are itemized on the Work
Order or pre-approved in writing by Lilly. Consultant shall not invoice
Lilly with respect to any particular Work Order for services or expenses in
excess of the maximum ("not-to-exceed") compensation amount set forth in
the applicable Work Order or Change Order. Unless otherwise specified in
the Work Order, Consultant shall invoice Lilly for services and expenses
chargeable hereunder monthly in arrears for all Work Orders which specify
that the work is to be performed on a time and materials basis. For Work
Orders specifying a fixed fee, Consultant shall invoice Lilly in accordance
with the payment schedule listed on the applicable Work Order. All invoices
shall be itemized and shall substantiate all charges therein set forth.
Consultant shall maintain complete and accurate accounting records, in a
form in accordance with generally accepted accounting practices, to
substantiate Consultant's charges and expenses hereunder. Consultant shall
retain such records for a period of one (1) year from the date of final
payment under any Work Order. Lilly shall pay all valid invoices, except
for any amounts disputed by Lilly, within thirty (30) days after the date
of the invoice.
3. PERSONNEL. Consultant shall make available for each Work Order qualified
personnel necessary to fulfill its obligations hereunder. Consultant is not
permitted to utilize subcontractors for performance of any Work Order
unless prior written consent is first obtained from Lilly, and unless such
subcontractors have executed a written agreement with Consultant which
obligates any such subcontractor to protect Confidential Information and to
* to the same extent as is required of Consultant by this Agreement.
Further, Consultant agrees to be fully responsible for all acts and
omissions of any subcontractor used by consultant and permitted under this
Agreement. Lilly may, in its discretion, request that * under this
Agreement * to Lilly * which * effective upon written notice from Lilly *.
During the course of each Work Order, Consultant shall permit Lilly to be
present, when reasonable, as observers while various tasks are being
conducted and to consult with Consultant personnel regarding the Work
Order. Consultant shall, at Lilly's sole discretion, perform the services
at Consultant's offices, Lilly's offices, or elsewhere, and the times
during which services are rendered shall be at Lilly's discretion when
required to be performed at Lilly's offices. Consultant shall be fully and
solely responsible for the compensation and performance of all of its
employees hereunder and the filing of any and all returns and reports and
the withholding and/or payment of all applicable federal, state and local
wage tax, or employment related taxes, including, but not limited to,
income taxes, gross receipt taxes, taxes measured by gross income,
THE SECTIONS ON THE FOLLOWING PAGES ALSO ARE PART OF THIS AGREEMENT
IN WITNESS WHEREOF, Lilly and Consultant have caused duly authorized
representatives of the respective parties to execute this Agreement on the
date(s) set forth below.
Phase Forward Incorporated ▇▇▇ ▇▇▇▇▇ AND COMPANY
--------------------------------- "LILLY"
"CONSULTANT"
By: /s/ ▇▇▇▇ ▇. Schlicking By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ ---------------------------------
Signature Signature
▇▇▇▇ ▇. Schlicking ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Printed Name Printed Name
Senior Vice President & CFO 3/7/01 Global Sourcing Manager 3-29-01
---------------------------------- ------------------------------------
Title Date Title Date
Social Security taxes, and unemployment taxes for Consultant and Consultant's
employees. The status of Consultant and its employees shall be that of
independent contractor and no such personnel shall, at any time or for any
purpose, be deemed employees or agents of Lilly. Neither Consultant nor any
employee of Consultant shall be entitled to participate in any Lilly employee
benefit plan. Consultant warrants that it has enforceable written agreements
with all of its employees and all subcontractors permitted hereunder to be
involved in any project under this Agreement (i) assigning to Consultant
ownership of all patents, copyrights and other proprietary rights created in the
course of their employment or engagement; and (ii) obligating such employees
upon terms and conditions no less restrictive than contained herein, not to use
or disclose any proprietary rights or information learned or acquired during the
course of such employment or engagement, including, without limitation, any Work
Product (defined in Section 8 below) hereunder, and any other information
pursuant to Section 7 hereof.
4. * OF SERVICES. If specified in a Work Order, each deliverable for such Work
Order shall be subject to * by Lilly to * of the Work Order and * by Lilly to
Consultant. If Lilly * within * following * and Lilly *, Consultant shall * in a
* or, * by Lilly for the services *.
5. EXCHANGE OF INFORMATION AND TECHNICAL ASSISTANCE.
5.1 Upon completion of Services that include * identified as * as defined in
Section 8, Consultant shall deliver to Lilly the Work Product, including
related documentation and Consultant Property (defined in this Section
5), to the extent necessary for Lilly to * the subject matter of the
individual Work Order. Consultant warrants that the technical assistance
to be rendered under the Work Order shall be adequate to familiarize
Lilly with the Work Product and documentation under such Work Order, and
to enable Lilly to use the same.
5.2 Upon completion of Services that include * identified as * as defined in
Section 8, Consultant shall disclose and deliver to Lilly the Work
Product and related documentation and all Consultant Property, to the
extent necessary or useful to *.
5.3 As used herein, "Consultant Property" means * under a particular Work
Order, which Consultant uses to satisfy its obligations under that Work
Order.
5.4 Notwithstanding anything herein, nothing in this Agreement shall require
Consultant to provide Lilly with any source code for any * or *, and
Lilly shall not alter, reverse engineer, disassemble, decompile or copy
any * or *.
6. LILLY'S COVENANTS AND OBLIGATIONS
6.1 PROHIBITION OF DIAGNOSTIC OR THERAPEUTIC USE. Lilly acknowledges that it
understands, and undertakes to ensure that all users of the services will
understand, that (i) the services any deliverables associated therewith 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 services and any deliverables are not a
diagnostic or therapeutic aid and must be used only for research purposes, and
(v) data collected using, or analyses performed using, the services or any
deliverable must not be used for patient diagnosis or therapy decisions.
6.2 COMPLIANCE WITH CLINICAL TRIAL AND PRIVACY LAWS. Lilly represents and
covenants, with respect to all clinical which it conducts using the services or
any deliverable, 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 (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.
6.3 NO TRANSFER. No obligations pursuant to 21 CFR 312.52 shall be transferred
by Lilly to Consultant under any this Agreement or any Work Order.
7. CONFIDENTIAL INFORMATION. Each party acknowledges that the other is the owner
of valuable trade secrets and other confidential information, as well as other
like information which is licensed from third parties. Each party shall treat as
strictly confidential and shall not use for its own purposes or for third
parties, or divulge or permit to be divulged to or examined or copied by others,
all information and data obtained by it, or to which it is otherwise exposed, in
connection with this Agreement or otherwise (i) which are confidential or
proprietary to the other party or his customers, including, without limitation,
the Work Product (defined in Section 8 below) pursuant to this Agreement; (ii)
which relate to the research, products, operations, policies, procedures,
techniques, accounts or personnel of the other party; or (iii) which are
confidential or proprietary to a third party and which are in the possession,
custody or control of the other party. In the event of a breach or threatened
breach of the provisions of this Section, each party shall be entitled to an
injunction restraining such breach or threatened breach without having to prove
actual damages or threatened irreparable harm. Such injunctive relief as a party
may obtain shall be in addition to all of the rights and remedies available at
law and in equity.
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 party 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
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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.
8. PROPERTY AND PROPRIETARY RIGHTS. Consultant agrees that all material
delivered pursuant to a Work Order or Change Order must be specified in the
Statement of Work as *. As used herein, "Work Product" means * (the "Work
Product"). Lilly and Consultant will mutually identify the Work Product as
being "*" "*" "*". * Materials will be considered *.
Each of us agrees to reproduce the copyright notice and any other legend of
ownership on any copies made under the licenses grant in this Section.
8.1 * are those Work Product created or delivered pursuant to a Work Order
or Change Order in which Consultant * and that Consultant will, during the
term of this Agreement *. Upon termination of this Agreement or a Work
Order, Consultant will provide to Lilly all copies of * and Lilly will *,
excluding *. Consultant agrees that if any * it shall be deemed to be a *,
as such term is defined in the *. If, * of * Consultant hereby *.
Consultant shall cooperate with Lilly or its designees and *, and take
other necessary actions as reasonably directed by Lilly, to *. Such
cooperation * shall be performed *; provided, however, Lilly shall *.
Consultant shall cause each of Consultant's employees charged with
performance of a Work Order *. Consultant hereby grants Lilly *.
8.2 * are those * created or delivered pursuant to a Work Order or
Change Order, in which *.
8.3 * are Work Product created or delivered pursuant to a Work Order,
in which *. Consultant will deliver one copy of the specified * to
Lilly and *.
9. INFRINGEMENT WARRANTY. Consultant warrants that any Work Product produced
under this Agreement and all Consultant Property (except for any Products as
that term is defined in the Software License Agreement between the parties of
even date herewith) shall be of original development or licensable by
Consultant, as the case may be, and all Work Product and property licensed or
owned by Consultant and used in the performance of any Work Order shall not
infringe or violate any patent, copyright, trade secret, trademark, or other
third party intellectual property right. Further, Consultant represents and
warrants that the Work Product is not the subject of a lien, a security
interest, claim, cause of action, or otherwise hypothecated to a third party.
Consultant warrants that it has the right to grant to Lilly the license to use
Work 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 Consultant. To the extent
Consultant incorporates third party rights into the Work Product, Consultant
warrants that it shall have obtained the rights from those third parties to *
under this Agreement.
* FOR * OF *. Consultant shall * provided for in * against any claim of a breach
of the warranty set forth in Section 9 above. * AND THE ENTIRE OBLIGATION * WITH
RESPECT TO ANY CLAIM OF INFRINGEMENT.
10. WORK PRODUCT WARRANTIES.
10.1 PERFORMANCE. For a period of *, Consultant represents and warrants
that the Work Product shall substantially conform to and will operate
substantially in accordance with all Documentation supplied by Consultant
to Lilly. Consultant shall not be responsible to the extent failures are
caused by (a) Lilly's failures to use the Work Product in accordance with
instructions included in the documentation provided to Lilly by Consultant,
or (b) the modification of the Work Product by any person other than
Consultant, its employees, agents, affiliates or subcontractors (unless
such modification was authorized or approved by Consultant.)
10.2 MEDIA DEFECTS. Consultant warrants that all tapes, diskettes or other
electronic media provided to Lilly hereunder will be free from defects.
Consultant shall, within five days of notification by Lilly of such defect,
replace any defective electronic media at no additional cost to Lilly.
10.3 COMPATIBILITY. Consultant warrants that the Work Product will be
compatible with the Consultant's technical environment recommendations,
including hardware, operating system(s), software application(s), CPU's and
networks specified by Consultant in the applicable Proposal or Work Order.
10.4 EXCLUSIVE REMEDY FOR BREACH OF PERFORMANCE, MEDIA AND COMPATIBILITY
WARRANTIES. If the Work Product fail to meet Specifications as provided in
the Proposal or Work Order, Consultant will repair or replace at its
option, without charge to Lilly, the non-conforming Work Product with a
replacement which meets the Specifications. As Consultant's sole
obligation, and Lilly's sole remedy, for any breach of the limited
warranties of conformity set
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Consulting and Professional Services Agreement -- December, 2000, Edition 1.0
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forth in Sections 10.1, 10.2 or 10.3, Consultant shall use its 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
Work Product reported to Consultant. If, after its best efforts, Consultant
cannot make the Work Product operate as warranted, then Consultant shall
refund to Lilly all fees paid for such Work Product upon Lilly's return of
such nonconforming Work Product, and this *.
10.5 ILLICIT CODE. Consultant warrants unless (i) authorized in writing by
Lilly or (ii) necessary to perform valid duties under this Agreement, any
Work Product provided to Lilly by Consultant for use by Consultant 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, Consultant shall be in default of this
Agreement, and a *. 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 Consultant.
10.6 YEAR 2000. Consultant warrants and represents that the occurrence in
or use by the Work 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 Work 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, Consultant will provide
sufficient evidence to demonstrate the adequate testing of the Work Product
to meet the foregoing requirements.
10.7 DOCUMENTATION OF THE WORK PRODUCT. Consultant warrants and represents
that it shall at all times document the operation of the Work Product in a
manner consistent with the best practices of the software development
industry, and such Documentation shall accurately reflect the operation of
the Work Product and enable a person reasonably skilled in computer
programming and in possession of the Work Product source code to use, and
maintain the Work Product fully and completely. Consultant further
represents and warrants that it shall control and identify all adaptations,
upgrades, and enhancements of the Work Product by means of a version
number, and all lesser modifications by means of a release number.
10.8 EQUIPMENT. Consultant warrants and represents that any Equipment
delivered hereunder shall be delivered to Lilly with any applicable
warranty granted by the original manufacturer of the Equipment that is
still effective.
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 * REQUIREMENTS. Consultant agrees that any products or services
provided under this Agreement will *. Consultant represents and warrants
that to its knowledge any Work Product or services provided under this
Agreement, as delivered to Lilly, *. Upon * Licensor shall certify to Lilly
that the products or services *. Upon written notice from Lilly that any
service or Work Product provided under this Agreement, as delivered to
Lilly, does not *, Consultant shall use its best efforts to remedy such *
breach * at no cost to Lilly. Furthermore, Consultant shall in good faith
execute any and all agreements that Lilly reasonably requests Consultant to
execute in order that Lilly may comply with HIPAA.
11.3 INSURANCE. Without limiting Consultant's liability to Lilly or third
parties hereunder, Consultant 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 *
in an amount of not less than *. *. Consultant represents and warrants that
it shall tile all claims made under this Agreement with its insurance
carriers.
11.4 COMPLIANCE WITH LILLY POLICIES. Consultant agrees to reasonably assure
that its employees will follow Lilly policies while at any Lilly site;
provided that Lilly provides Consultant with copies of such policies.
11.5 GIFTS AND GRATUITIES. Consultant, 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 Consultant IS approached by anyone suggesting fraudulent or unethical
behavior with regard to Consultant's business activities with Lilly, or if
any request is made to Consultant, its employees or agents by any Lilly
employees or members of their families for gifts or gratuities of any kind,
Consultant agrees to immediately notify Lilly Procurement Management.
Consultant 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 Consultant, Consultant'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. Consultant agrees to immediately notify Lilly Procurement
Management in writing of any violations of this subsection.
11.6 PENDING LITIGATION, Consultant represents and warrants to Lilly that
there is no action, suit, claim, investigation, or proceeding pending, or
to the best of Consultant's knowledge, threatened against, by or affecting
Consultant or the Product which, if adversely decided, might adversely
affect Consultant's ability to enter into this
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Agreement, Consultant's performance of its obligations herein, or Lilly's
use of the Work Product. Consultant further represents and warrants that it
does not know of any basis for any such action.
11.7 CHANGE OF CONTROL WARRANTY. Consultant represents and warrants to
Lilly that no change of control with respect to Consultant is being
considered, planned or pending by the Board of Directors, or management, or
to its knowledge shareholders, of Consultant or by any affiliate of
Consultant.
11.8 DEBARMENT. Consultant represents and warrants that Consultant 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
Consultant or its officers, directors, employees or agents, Consultant
shall immediately notify Lilly of such proceeding or threatened debarment.
11.9 * AND *. In the event of * caused by the Work
Product or Work Product failure, including, but not limited to, a Work
Product failure resulting from an error, malfunction or overloading,
Consultant shall *.
11.10 PROFESSIONAL SERVICES. Consultant shall perform all services under
this Agreement * in a *. Consultant shall * complete its services in
accordance with the timetables agreed to by the parties. Notwithstanding
the foregoing, Lilly acknowledges that milestones depend on receipt of
deliverables from Lilly in a timely fashion and failure to meet dependency
dates may result in slippage across the timetable.
11.11 RECRUITMENT OF PERSONNEL AND EXCLUSIVITY. During the term of this
Agreement and for a period of *, neither party shall solicit the employment
of any employee of the other party with whom such party has had contact in
connection with the relationship arising under this Agreement.
11.12 USE OF NAME AND PUBLICITY. Consultant 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 Consultant has been approved,
recommended, certified, or endorsed by Lilly. Upon Lilly's written consent,
* Licensor may *.
12. INDEMNIFICATION.
12.1 INFRINGEMENT INDEMNIFICATION. In the event of an infringement claim by
a third party against Lilly, Consultant 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, Consultant or Lilly is enjoined from using any
Work Product and/or Documentation, or if Consultant believes that the Work
Product is likely to become the subject of a claim of infringement,
Consultant 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 any and all charges paid by Lilly, and
release Lilly from any further liability under this Agreement. This
provision will survive termination of this Agreement. *.
12.2 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 from 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) * (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, or of the Indemnifying Party's personnel,
subcontractors, or agents (hereinafter "Person"); (v) any Person filing any
lien against any property of Lilly, or any claim or lawsuit against Lilly
in which the Person claims payment from Lilly for services to Lilly; (vi)
any claims or liability for wages, workers' compensation or unemployment
compensation owed to Consultant employees, or payroll or related taxes or
other governmental charges related to the performance of the services to be
provided hereunder; (vii) any claims or liabilities for employee benefits
related to the performance of the services to be provided hereunder. In
addition, Lilly shall indemnify and hold Consultant 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 any product for
which any service or deliverable provided hereunder was used and (ii) any
product derived from or based on such clinical trial or product.
13. LIMITATION OF DAMAGES. Except for the parties liabilities as set forth in
Sections 7 and 12.1, 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 *.
Except for the obligations in Sections 7, neither Consultant 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.
Notwithstanding the foregoing, if any claim against Consultant for breach of
this Agreement is a claim covered by any insurance policy maintained by
Consultant, any recovery of proceeds under such policy shall be paid to Lilly to
the extent Lilly's damages exceed the foregoing limitation of liability.
Consultant shall vigorously pursue any applicable policy claim as requested by
Lilly.
14. 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.
CONSULTANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A
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PARTICULAR PURPOSE. * REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING
BUT NOT LIMITED TO STATEMENTS REGARDING * CONTAINED IN THIS AGREEMENT, SHALL BE
DEEMED TO BE A WARRANTY BY CONSULTANT FOR *.
15. TERMINATION. Lilly shall have the right upon * terminate any Work Order or
this Agreement whether or not Consultant is in default or in breach. Consultant
shall be entitled to payment under Section 2 hereof with respect to provable
charges earned for accepted services and reimbursable expenses incurred up to
the effective date of the termination. In addition, If Consultant has not
breached the Agreement, Lilly shall pay all reasonable costs incurred by
Consultant that are reasonably required in connection with the orderly cessation
of the Services, including any fees for which Consultant has become committed to
the extent it is unable to terminate its commitment without cost or penalty.
Consultant agrees to stop all work to the extent specified in the notice, incur
no further expenses beyond those authorized in such notice, complete performance
of such work that has not been terminated, and invoice Lilly for amounts owed
within two (2) months of termination. Upon termination of any Work Order or this
Agreement for any cause or for no cause, or at any earlier time upon the demand
of Lilly, Consultant shall without cost to Lilly (a) deliver to Lilly in an
orderly and expeditious manner all data, records, documentation, and other
property belonging to Lilly then in the possession of Consultant, including, but
not limited to, * on whatever media rendered; and (b) upon request of Lilly,
certify in writing that it has complied with these requirements. Sections 6
through 26 shall survive the expiration or termination of this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, if
Consultant breaches any material term or condition of this Agreement, Lilly may
at its option exercise any one or more of the following remedies: (i) terminate
the applicable Work Order or this Agreement, * unless Consultant cures such
breach * or (ii) exercise any other rights and remedies available at law
or in equity.
If Lilly breaches any material term or condition under this Agreement,
Consultant may terminate this Agreement and any licenses hereunder by written
notice to Lilly * unless Lilly cures such breach *.
16. 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 * 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 * if
the other party to such transaction has an existing agreement with Consultant.
17. SUBCONTRACTORS. Consultant may, with Lilly's prior written consent, use
subcontractors to perform certain of the services required to be provided by
Consultant in a Statement of Work. Notwithstanding the foregoing, Lilly agrees
that Consultant may engage individual consultants to supplement its own staff as
it reasonably deems necessary, provided that such consultants are bound by an
appropriate confidentiality agreement.
18. AUDIT PROVISION. During the term of this Agreement Lilly will have the
right, at its expense and upon no less than five (5) working days prior written
notice, to audit Consultant's systems and services, with specific emphasis on
Consultant'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, will not interfere unreasonably with Consultant'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
Consultant will * to remedy the non-conformance as soon as practicable. If the
non-conformance continues *, then Lilly shall have the option to declare
Consultant 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,
Consultant shall make available to the FDA all records required by governmental
regulations related to the Work Product and any data or results produced by the
Work Product. 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 Work Product or any data or results produced by the Work Product,
Consultant shall promptly give Lilly notice thereof, and Lilly shall have the
right to be present at any such audit or regulatory action.
19. UCITA. Consultant 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 Consultant and Lilly waive any and all rights arising from any
such law.
20. 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
Consultant hereby consents to personal jurisdiction and venue therein and hereby
waives any right to object to personal jurisdiction or venue therein.
21. ENTIRE AGREEMENT. This Agreement, which includes all attached exhibits
referenced herein and any Work Order created pursuant hereto, constitutes the
entire agreement between Lilly and Consultant with respect to the subject matter
hereof; and supersedes all proposals, oral or written, and all other
communications between the parties with respect to such subject matter.
22. 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.
23. SEVERABILITY. If any provision in this Agreement is held to be invalid,
void, or unenforceable, the remaining provisions shall nevertheless continue in
full force.
24. 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.
25. FORCE MAJEURE. Neither party shall be liable to the other for failure to
perform under this Agreement if said failure results, directly or
▇▇▇ ▇▇▇▇▇ and Company
Consulting and Professional Services Agreement -- December, 2000, Edition 1.0
Page 6 of 7
indirectly, from government action or inaction, labor disputes, mechanical or
electrical breakdown, or natural disaster.
26. HEADINGS. The headings in this Agreement are solely for convenience of
reference and shall not affect its interpretation.
27. 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
Consulting and Professional Services Agreement -- December, 2000, Edition 1.0
Page 7 of 7
[LILLY LOGO] CONSULTING AND
PROFESSIONAL SERVICES
AGREEMENT
EXHIBIT A
WORK ORDER NO. _______
This Work Order is entered into by and between ▇▇▇ ▇▇▇▇▇ and Company ("LILLY")
and the Consultant signing below pursuant to the Consulting and Professional
Services Agreement between the parties (the "Agreement"), and is subject to the
terms and conditions of the Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
NO WORK ORDER OR CHANGE ORDER SHALL BE EFFECTIVE UNLESS SIGNED BY THE LICENSOR'S
CHIEF FINANCIAL OFFICER OR GENERAL COUNSEL.
I. OWNERSHIP OF PROPERTY AND PROPRIETARY RIGHTS
CONSULTANT AND LILLY MUST DESIGNATE EACH DELIVERABLE IN THIS WORK ORDER AS
*, * PURSUANT TO SECTION 8 OF THE AGREEMENT. PLEASE REFER TO THE
DEFINITIONS OF * AND THE * OF * AND * IN SECTION 8 OF THE AGREEMENT.
II. DESCRIPTION OF SERVICES AND MILESTONES
[INCLUDE A DETAILED DESCRIPTION OF THE SERVICES TO BE RENDERED AND A
PROJECT SCHEDULE, IDENTIFYING ALL CRITICAL MILESTONES]
DELIVERABLES
[LIST AND DESCRIBE ALL DELIVERABLES TO BE GENERATED AND PROVIDED TO LILLY]
START DATE: _______________________ PROJECTED END DATE: ___________________
III. FEES (INDICATE ALL THAT APPLY)
____ FIXED PRICE OF $ _______________
____The above Fixed Price includes Materials and Expenses.
____The above Fixed Price does not include Materials and Expenses
____ TIME, MATERIALS AND EXPENSES (SUBJECT TO THE "NOT-TO-EXCEED AMOUNT")
Estimated Senior Consultant Labor Hours Required to Complete the Scope
of Work: ____________
Labor Rate: $ _________ per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Estimated Junior Consultant Labor Hours Required to Complete the Scope
of Work: ____________
Labor Rate: $ _________ per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Estimated Other Labor Hours Required to Complete the Scope of Work: _____
Labor Rate: $ _________ per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Total Pre-authorized Fees: ______________ (sum of each category)
IV. MATERIALS/EXPENSES
List of Materials and Expenses Required to Complete the Scope of Work:
Maximum Pre-authorized Materials and Expenses: $
V. NOT-TO-EXCEED AMOUNT
Under no circumstances shall the amounts payable under this Work Order without a
Change Order (including fees, materials and expenses) exceed $____________ (the
"not-to-exceed amount").
V. ADDITIONAL TERMS AND CONDITIONS
Consultant shall not submit an invoice to LILLY for services rendered hereunder
unless accepted as provided in the Agreement, a Work Order and/or a Change
Order.
Consultant may not increase the hourly labor rates quoted above in Section II
during the duration of this Work Order.
[LIST ANY ADDITIONAL TERMS AND CONDITIONS TO APPLY ONLY TO THIS WORK ORDER.
FOR EXAMPLE, PERHAPS THERE IS TO BE A TOTAL REFUND IF THE COMPLETED PROJECT
IS NOT TO THE SATISFACTION OF LILLY. CONSULT WITH LILLY'S LEGAL COUNSEL TO
COMPLETE THIS SECTION]
IN WITNESS WHEREOF, LILLY and Consultant have caused duly authorized
representatives of the respective parties to execute this Work Order on the
date(s) set forth below.
CONSULTANT ▇▇▇ ▇▇▇▇▇ AND COMPANY
By: _____________________________ By: ______________________________
Signature Signature
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Title Date Title Date
[LILLY LOGO] CONSULTING AND
PROFESSIONAL SERVICES
AGREEMENT
EXHIBIT B
CHANGE ORDER NO. _______
This Change Order is entered into by and between ▇▇▇ ▇▇▇▇▇ and Company
("LILLY") and the Consultant signing below pursuant to the Consulting and
Professional Services Agreement between the parties (the "Agreement"), Work
Order No._______________(the "Work Order"), and previously issued Change Order
Nos._______(the "Change Orders"), and is subject to the terms and conditions of
the Agreement, the Work Order, and the Change Orders unless otherwise noted
herein. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO WORK ORDER OR CHANGE ORDER
SHALL BE EFFECTIVE UNLESS SIGNED BY THE LICENSOR'S CHIEF FINANCIAL OFFICER OR
GENERAL COUNSEL.
I. OWNERSHIP OF PROPERTY AND PROPRIETARY RIGHTS
CONSULTANT AND LILLY MUST DESIGNATE EACH DELIVERABLE IN THIS WORK ORDER AS
*, * OR * PURSUANT TO SECTION 8 OF THE AGREEMENT. PLEASE REFER TO THE
DEFINITIONS OF *, * AND * AND THE * OF * AND * IN SECTION 8 OF THE
AGREEMENT.
II. DESCRIPTION OF CHANGES TO SERVICES AND MILESTONES
[INCLUDE THE IDENTITY OF THE PARTY REQUESTING THE CHANGES, THE REASON FOR
THE CHANGES, THE BENEFIT OF THE CHANGES, AND A DETAILED DESCRIPTION OF THE
CHANGES TO THE SERVICES TO BE RENDERED. INCLUDE A NEW PROJECT SCHEDULE
IDENTIFYING ALL CRITICAL MILESTONES.]
DESCRIPTION OF CHANGES TO DELIVERABLES
[LIST AND DESCRIBE THE CHANGES TO ALL DELIVERABLES FROM THE WORK ORDER (AS
AMENDED BY ANY CHANGE ORDERS) TO BE GENERATED AND PROVIDED TO LILLY]
NEW PROJECTED END DATE:_______________
III. CHANGES TO FEES (INDICATE ALL THAT APPLY)
__NEW FIXED PRICE OF $ _______________
__The above Fixed Price includes Materials and Expenses.
__The above Fixed Price does not include Materials and Expenses
__NEW TIME, MATERIALS AND EXPENSES (SUBJECT TO THE "NOT-TO-EXCEED AMOUNT")
Estimated Senior Consultant Labor Hours Required to Complete the Scope
of Work: ____________
Labor Rate: $ ____________ per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Estimated Junior Consultant Labor Hours Required to Complete the Scope
of Work: ____________
Labor Rate: $ _____________ per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Estimated Other Labor Hours Required to Complete the Scope of Work: _____
Labor Rate: $ _________ Per __________
Maximum Pre-authorized Fees: $ ____ (Estimated Labor Hours x Hourly Rate)
Total Pre-authorized Fees: ______________ (sum of each category)
IV. ADDITIONAL MATERIALS/EXPENSES
List of Additional Materials and Expenses Required to Complete the Scope of
Work:
Revised Maximum Pre-authorized Materials and Expenses: $
V. REVISED NOT-TO-EXCEED AMOUNT
Under no circumstances shall the amounts payable under the Work Order and Change
Order (including fees, materials and expenses) exceed $ (the
"not-to-exceed amount").
VI. ADDITIONAL TERMS AND CONDITIONS
[LIST ANY ADDITIONAL TERMS AND CONDITIONS TO APPLY ONLY TO THIS CHANGE ORDER]
IN WITNESS WHEREOF, LILLY and Consultant have caused duly authorized
representatives of the respective parties to execute this Change Order on the
date(s) set forth below.
CONSULTANT ▇▇▇ ▇▇▇▇▇ AND COMPANY
By: ____________________________ By: _____________________________
Signature Signature
________________________________ _________________________________
Name Name
________________________________ _________________________________
Title Date Title Date
