Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
SERVICES AGREEMENT
This Agreement is effective this 16th day of October, 1995, (the "Effective
Date") between DSMI Corp., 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
("Vendor") and Xxxxxxx-Xxxxx Squibb U. S. Pharmaceuticals, a division of
Xxxxxxx-Xxxxx Squibb Company, X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000
(hereinafter called "BMSUSP"). Vendor agrees to provide services to BMSUSP
under the terms set forth below.
A. SERVICES
Vendor will provide the product(s) or service(s) set forth, and to the
specifications set forth in the proposal incorporated herein as
Attachment A.
The product and all elements as set forth on Attachment A are subject to
prior approval by BMSUSP, such approval not to be unreasonably withheld.
B. COMPENSATION
All fees for program development will be payable according to the
following schedule:
50% upon execution of this Services Agreement
50% upon completion of development work, defined as the point in time
when the services contemplated hereunder can be delivered.
All fees for program operation will be payable according to the following
schedule:
Satisfaction survey fees payable at the time of identification of
survey participants by BMSUSP.
Compliance program fees are payable at the time that the initial
service included within a particular phase of the program is
delivered. Phase I fees will be payable upon the identification of
the patient by [*****]. Phase II fees are payable upon
identification of a patient as requiring the additional services
based upon the results of the Phase I intervention. Phase III fees
are payable upon identification of a patient as requiring the
additional services based upon the results of the Phase II
intervention.
In the event that BMSUSP shall request any changes in the concept,
specifications or scope of the product(s) or service(s) described on
Attachment A hereto, Vendor will notify BMSUSP of the cost of such
revisions and will not proceed without prior written approval.
If the compensation provision on Attachment A hereto is other than a flat
fee amount per element or for the entire project, Vendor will provide
such documentation in support of all xxxxxxxx as BMSUSP may reasonably
require.
C. CONFIDENTIALITY.
Vendor shall treat as confidential and secret any and all BMSUSP
Confidential Information. "BMSUSP Confidential Information" shall include,
but not be limited to, information relating to BMSUSP's past, present and
future marketing and research and development activities that may be
disclosed to Vendor by BMSUSP and/or BMSUSP's parent, subsidiary or
affiliate companies and which are identified in writing by BMSUSP as
confidential. BMSUSP Confidential information shall not include (i)
information known by Vendor prior to disclosure from BMSUSP, (ii)
information which is or becomes publicly known through no wrongful act of
Vendor, (iii) information that is independently developed by Vendor,
without use of information that otherwise constitutes BMSUSP Confidential
Information, or (iv) information disclosed pursuant to law, rule,
regulation or pursuant to a court order, provided that BMSUSP is given 10
days prior notice of such disclosure. Vendor expressly agrees that any
information it discovers or develops under this Agreement for the
benefit of BMSUSP shall not be used by Vendor or disclosed by Vendor to
any third party, nor shall Vendor show this Agreement or disclose the
existence, nature or subject matter of this Agreement to any third party
without the prior written consent of BMSUSP. Vendors obligations not to
disclose BMSUSP Confidential Information to third parties and not to
otherwise use BMSUSP Confidential Information shall survive the
termination of this Agreement for a period of five years. Vendor shall
not duplicate any material containing BMSUSP Confidential Information,
except in the direct performance of its services under this Agreement.
Vendor shall return all copies of materials containing BMSUSP
Confidential Information upon Vendor's completion of services under this
Agreement or upon any earlier termination of this Agreement for any
reason whatsoever.
BMSUSP shall treat as confidential and secret any and all Vendor
Confidential Information. "Vendor Confidential Information" shall
include, but not be limited to, information relating to Vendor's past,
present and future systems development activities that may be disclosed
to BMSUSP and/or BMSUSP's parent, subsidiary or affiliate companies and
which are identified in writing by Vendor as confidential, except that in
no event shall Vendor Confidential Information include information
relation to Vendor deliverables under this agreement. Vendor Confidential
Information shall not include (i) information known by BMSUSP prior to
disclosure from Vendor, (ii) information which is or becomes publicly
known through no wrongful act of BMSUSP, (iii) information that is
independently developed by BMSUSP, without use of information that
otherwise constitutes Vendor Confidential Information, or (iv)
information disclosed pursuant to law, rule, regulation or pursuant to a
court order, provided that Vendor is given 10 days prior notice of such
disclosure. BMSUSP expressly agrees that any Confidential Information it
discovers under this Agreement shall not be disclosed by BMSUSP to any
third party without the prior written consent of Vendor. BMSUSP's
obligations not to disclose Vendor Confidential Information shall survive
the termination of this Agreement for a period of five years.
D. INDEMNIFICATION
Each party shall indemnify and hold the other party harmless from and
against all liability, damages, penalties, losses, costs or expenses,
including attorneys' fees, arising from or in any way related to its
willful or negligent actions or omissions in performing the
responsibilities as described in this Agreement, or for any willful or
negligent breach of this Agreement.
E. PROFESSIONAL STANDARDS.
Vendor represents that it has facilities, personnel, experience and
expertise sufficient in quality and it will perform all such assignments
and projects given it by BMSUSP hereunder and agrees that it will perform
all such assignments and projects in a manner commensurate with
professional standards generally applicable to its industry.
F. OWNERSHIP OF MATERIALS
Any and all reports, information, data or other works created by Vendor
for BMSUSP in connection with this Agreement (with the exception of
customization of the Vendor's basic software and systems for BMSUSP as
well as the Vendor's basic software and systems themselves) shall be the
sole and exclusive property of BMSUSP. BMSUSP may use such work wherever
and whenever it chooses. Vendor shall not at any time in any manner
during or after this Agreement, under any circumstances, be entitled to
or claim any right, title or interest herein or any commission, fee or
other direct or indirect benefit from BMSUSP or BMSUSP's parent,
subsidiary or affiliate companies, in respect of such reports, data,
information or other works created by Vendor hereunder.
BMSUSP hereby grants Vendor a worldwide perpetual royalty free license to
the data and information created by Vendor in connection with this
agreement for purposes of making marketing presentations to other
potential customers and for the development and sale of additional
products based upon this data and information.
G. RELEASES
Any materials furnished hereunder which have not been created for BMSUSP
and are subject to the rights of third parties shall be specifically
identified to BMSUSP in writing. Vendor shall obtain (and deliver upon
request to BMSUSP) releases for all names, photographs, illustrations,
testimonials, and any and all other materials used in works which Vendor
prepares or uses. All such releases shall run to BMSUSP, its agents and
employees where appropriate and customary. Vendor's failure to obtain
such releases or the obtaining of such releases by Vendor shall in no way
relieve Vendor of its obligations in Paragraph F above except where the
releases have been obtained directly by BMSUSP. Except for works that
have been secured by permission, Vendor warrants and covenants that all
works provided by Vendor shall be original and shall not infringe any
copyright or violate any rights of any persons or entities whatsoever.
H. DURATION OF AGREEMENT
1. Term
This Agreement is effective as of the Effective Date and shall continue
in full force and effect until the earlier of (i) completion of the
project assigned hereunder, (ii) terminated by at least thirty (30) days
written notice by either party to the other, sent by registered mail to
the address for each party first set forth above, or to such other
address which a party may designate for its receipt of notices hereunder.
2. Payment on Termination
Upon termination of this Agreement BMSUSP is to pay for all authorized
work in process, and BMSUSP shall assume Vendor's liability under and
indemnify Vendor with respect to all outstanding contracts made on
BMSUSP's behalf. Upon written notice of termination Vendor shall take
all steps necessary to wind up the work under this Agreement to mitigate
BMSUSP's liability therefore.
3. Transfer Upon Termination
Vendor shall transfer, assign and make available to BMSUSP or BMSUSP's
representative all property and materials in Vendor's possession or
control belonging to and paid for by BMSUSP, and all information
regarding BMSUSP's project(s) covered by this Agreement, as set forth in
Paragraph C herein. Vendor also agrees to give all reasonable cooperation
toward transferring with approval of third parties in interest all
contracts and arrangements, if any, properly entered into by Vendor in
the performance of this Agreement, and all rights and claims thereto and
therein, upon being duly released from the obligation thereof.
I. INDEPENDENT CONTRACTORS
The parties to this Agreement are independent contractors and nothing
contained in this Agreement shall be construed to place the parties in
the relationship of employer and employee, partners, principal and agent,
or joint ventures. Neither party shall have the power to bind or obligate
the other party nor shall either party hold itself out as having such
authority.
J. THIRD PARTY OBLIGATIONS
In connection with this Agreement, Vendor shall make no commitments or
disbursements, incur no obligations or place any advertising, public
relations or promotional material for BMSUSP's parent, subsidiary or
affiliate companies, nor disseminate any material of any kind using the
name of BMSUSP and/or BMSUSP's parent, subsidiary or affiliate companies
or using their trademarks, without the prior written approval of BMSUSP.
K. GOVERNING LAW
This Agreement is entered into in the State of New Jersey and shall be
constructed and governed under and in accordance with the laws of that
State.
L. MISCELLANEOUS
1) The terms of this Agreement shall be binding upon BMSUSP and the
Vendor and their respective successors and permitted assigns.
Notwithstanding the foregoing, this Agreement is not assignable in whole
or in part by Vendor without the prior written consent of BMSUSP.
Factoring of accounts receivable is not permitted.
2) The failure of either party to take action as a result of a breach of
this Agreement by the other party shall constitute neither a waiver of
the particular breach involved or a waiver of either party's right to
enforce any or all provisions of this Agreement through any remedy
granted by law or this Agreement.
3) BMSUSP is an Equal Opportunity Employer and does not discriminate
against any person because of race, color, creed, age, sex, or national
origin. Vendor represents that it has the same policy of Equal
Opportunity Employment.
4) The policy of BMSUSP is to protect the health, safety and quality of
life of its employees and the public, and to exercise responsible
stewardship of natural resources that may be impacted by its activities.
To realize this, BMSUSP is committed to maintaining programs and
procedures for the environmentally responsible management of facilities,
materials, production processes, products and packaging, transportation
and distribution, waste and ft minimization, energy, general business
operations and contracted goods and services. Vendor agrees with this
policy and further acknowledges that its performance under this Agreement
shall be in strict compliance with all applicable governmental laws and
regulations and in accordance with and in furtherance of this policy.
5) This Agreement contains the entire understanding of the parties with
respect to the subject matter contained herein, supersedes any prior
written or oral communications and may be modified in writing subject to
mutual agreement of the parties hereto.
6) The headings of each paragraph are for reference only and shall not
be construed as part of this Agreement.
7) Except for the obligation to pay money property due and owing, either
party shall be excused from any delay or failure in performance hereunder
caused by reason of any occurrence or contingency beyond its reasonable
control, including but not limited to, failure of performance by the other
party, earthquake, labor disputes, riots, governmental requirements,
inability to secure materials on a timely basis, failure of computer
equipment, failures or delays of sources from which information or data
is obtained and transportation difficulties.
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized officer,
have entered in to this Agreement this 16th day of October, 1995.
Xxxxxxx-Xxxxx Squibb DSMI Corp.
U. S. Pharmaceuticals 00 Xxxxxx Xxxxxx
a division of Xxxxxxx-Xxxxx Xxxxxxxxx, Xxx Xxxx 00000
Squibb Company
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXX X. XXXXXXXX
--------------------------- -----------------------
Title: Mgr., Customer Projects Title: President & CEO
------------------------ --------------------
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
ATTACHMENT A
TELEPHONE SATISFACTION SURVEY
OBJECTIVE
The objective of this program is to twofold. First, the program is designed to
contact and survey 1000 patients prior to their enrollment in a compliance
program. There will be two contracts: an initial survey and a follow-up
survey at a 12-month period after enrollment.
The second objective is to conduct the telephone contact portion of the
compliance program.
PROCEDURES
1. INITIAL SURVEY
A postcard will be sent to all patients identified for the program providing
them with an 800# to call to conduct a survey via telephone.
If the patient has not called the 800# by a specified date, a call-out will
be conducted. This 5-minute call will be dual live/automated with an operator
establishing contact and transferring the patient to an automated voice
response survey.
2. SECOND SURVEY CONTACT
A postcard will be sent to all patients identified for the program providing
them with an 800# to call to conduct a survey via telephone. Participants
have the option to have an operator administer the survey.
If the patient has not called the 800# by a specified date, a call-out will
be conducted. This 5-minute call will be dual live/automated with an operator
establishing contact and transferring the patient to an automated voice
response survey. Participants have the option to have an operator administer
the survey.
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
COMPLIANCE PROGRAM
OBJECTIVE
The objective of this program is to improve compliance via a personalized
mail and telephone program. The target population consists of 1000 managed
care participants.
PROGRAM PROCEDURES
The program will operate according to the following procedures:
PHASE I:
- [*****] will provide DSMi with the names and contact information for
approximately 1000 patients
- DSMi will initiate the first telephone call to each of the 1,000 individuals
approximately 30 days after they are identified by [*****]. These calls
will be made by an operator who will identify the patient and transfer her
to a voice response system. The call will be an average of 4 minutes and
consist of approximately 10-15 questions.
- Those patients who are identified as "low-risk" (specific criteria to be
determined) will receive no additional telephone or mail interventions from
DSMi.
- Those patient who are identified as "high-risk" (specific criteria to be
determined) will be contacted according to a call schedule to be
determined by Wellpoint.
PHASE II:
- An estimated 35% of the original 1000 patients, or 350 patients, will
receive a second telephone call similar in length and format to the call
described in Phase I (i.e., dual live/automated, average length of 4
minutes, 10-15 questions).
- Those patients who are identified as "low-risk" (specific criteria to be
determined) will receive no additional telephone or mail interventions from
DSMi.
- Those patients who are identified as "high-risk" (specific criteria to be
determined) will be scheduled to receive a series of postcard mailings as
described in Phase III.
PHASE III:
- An estimated 75% of the 350 Phase II patients, or approximately 262
patients, will receive 5 medication refill reminder postcards by first
class mail, one at each of the following intervals: 3-months, 4-months,
8-months, 9-months, and 12-months after enrollment in the program.
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
PROGRAM DEVELOPMENT
Using content and algorithms for the telephone scripts provided by BMS, DSMi
will provide a fully operational program 90 days after signing a formal
agreement with BMS.
COSTS
SATISFACTION SURVEY
Program development $[*****]
Initial contact (1000 pts @ [*****]/pt) [*****]
Second contact (1000 pts @ [*****]/pt) [*****]
Total $[*****]
COMPLIANCE PROGRAM
Program development $[*****]
Program operations*
- Phase I only (650 pts @ [*****]/pt) $[*****]
- Phase I & II (87 pts @ [*****]/pt) $[*****]
- Phase I, II, & III (263 pts @ [*****]) $[*****]
Total $[*****]
*Figures for distribution of 1000 patients within the 3 categories of
compliance are based upon estimates furnished by BMS. Any change in
this distribution will result in total program operation costs that
are different from estimates indicated above.
