Exhibit 10.9
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SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"), dated as of
_____________ (the "Agreement Date"), by and between IMS Health Incorporated, a
Delaware corporation ("Service Provider") and Synavant Inc., a Delaware
corporation ("Recipient").
W I T N E S S E T H :
WHEREAS,
1. IMS HEALTH and Strategic Technology are being separated into two
separate and independent businesses by means of a spin-off (the
"Distribution"), under a Distribution Agreement dated as of ____________ (the
"Distribution Agreement"), between IMS HEALTH Corporation (the "Corporation")
and Synavant Inc. ("ST");
2. The target date of the Distribution is____________, and the actual
date that the Distribution is effected shall be called the "Distribution Date"
herein;
3. Prior to the Distribution Date, Service Provider has provided and
various of Recipients predecessors and subsidiaries have purchased the services,
pursuant to various written and oral agreements, the Shared Business Services
described in this Agreement;
4. In order to facilitate the orderly continuation of Recipient's
business for a transITIOnal period after the Distribution Date, Service Provider
has agreed to provide to Recipient, and Recipient has agreed to purchase on
behalf of itself and certain of it's U.S. and Canadian subsidiaries, the Shared
Transaction Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements of Service
Provider and Recipient set forth below, Service Provider and Recipient agree as
follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION
0.1 DEFINITIONS. The following defined terms shall have the
meanings specified below:
(1) "Agreement" shall have the meaning set forth in the preamble.
(2) "Agreement Date" shall have the meaning set forth in the preamble.
(3) "Agreement Disputes" shall have the meaning set forth in Section 12.1.
(4) "Alternative Provider" shall mean any alternative external service
provider selected by Recipient to provide services similar to the
Services following the expiration or termination of this Agreement.
(5) the "Corporation" shall have the meaning set forth in the preamble.
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(6) "Distribution" shall have the meaning set forth in the Recitals.
(7) "Distribution Agreement" shall have the meaning set forth in the
Recitals.
(8) "Distribution Date" shall have the meaning set forth in the Recitals.
(9) "Fees" shall mean those charges for the Services set forth in Schedule E.
(10) "IMS HEALTH" shall have the meaning set forth in the preamble.
(11) "Licensed Documentation" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
(12) "Licensed Software" shall mean the software described in Schedule D.
(13) "Parties" shall mean Service Provider and Recipient, collectively.
(14) "Party" shall mean either of Service Provider or Recipient, as the case
may be.
(15) "Recipient" shall have the meaning set forth in the preamble.
(16) "Recipient Data" shall mean all data or information supplied by Recipient
to Service Provider for processing or transmission in connection with the
Services.
(17) "Rules" shall have the meaning set forth in Section 12.2.
(18) "Service Provider" shall have the meaning set forth in the preamble.
(19) "Service Provider Service Location" shall mean any location from which
Service Provider provides or performs the Services. The Service Provider
Service Locations as of the Agreement Date are located at Allentown, PA .
(20) "Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider used
in connection with providing the Services or (b) licensed or leased by
Service Provider from a third party which is used in connection with
providing the Services. The Service Provider Software includes the
software set forth in Schedule F.
(21) "Service" shall mean the Shared Transaction Services.
(22) "Shared Transaction Services" shall mean the services described in
Schedule B.
0.2 REFERENCES. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in and
deemed part of this
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Agreement and all references to this Agreement shall include the
Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in this
Agreement shall mean "including, without limitation".
0.3 HEADINGS. The article and section headings and the table of
contents are for reference and convenience only and shall not be considered in
the interpretation of this Agreement.
1.4 INTERPRETATION OF DOCUMENTS. If there is a conflict between
this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
ARTICLE 2. TERM OF AGREEMENT .
The term of this Agreement shall commence on ____________ all
continue for _______________ through December 31, 2003.
ARTICLE 3. SERVICES
3.1 SERVICES. Service Provider shall provide to Recipient, and
Recipient shall purchase from Service Provider, the Shared Transaction Services
at the levels of service set forth in Schedule B, provided however, ST's annual
purchases in all events will not be higher than 110%, nor be less than ninety
percent (90%) of, the service level volumetrics set forth in the 1999 service
assessment. Services provided by the service provider which are not specifically
covered in this agreement will be rendered at the market rates charged by Price
Waterhouse Coopers for the equivalent level of expertise and service.
3.2 SENSITIVE SERVICES. Service Provider shall make all scheduled
tax payments accurately and in a timely manner. Service Provider shall also
accurately disburse funds on behalf of Recipient to vendors and employees in
accordance with the appropriate vendor terms and employee payrolls provided by
Recipient. Service Provider shall repay Recipient any erroneous payment,
interest or penalty resulting from an inaccurate or late payment under this
section attributable solely to it but its cumulative liability under this
section in any service year shall not exceed $10,000. Service Provider shall be
subrogated to Recipient's rights to the extent of any repayment and Recipient
shall cooperate with Service Provider in seeking reimbursement from any tax
authority, vendor or employee who shall have received an inaccurate or
misdirected disbursement
3.3 PRIORITY. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
3.4 REPORTS. Service Provider shall provide Recipient with the
reports set forth in Schedule C according to the schedule set forth in Schedule
C. All completion dates for processing to take place in 2001 shall be agreed and
established in the same manner as provided under this Agreement for processing
which will take place in 2000.
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ARTICLE 4. RECIPIENT OBLIGATIONS .
4.1 GENERALLY . Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider to
adequately provide the Services;
(2) comply with all applicable standards and procedures applicable to the
Service Provider Service Location;
(3) promptly report any operational or system problem to Service Provider;
(4) provide the working environment, including space, furniture, electricity,
telephones and other infrastructure requirements for Service Provider's
employees located at Recipient's premises, if any.
4.2 ASSOCIATED EQUIPMENT. Except to the extent otherwise provided
in any Schedule, Recipient shall maintain and be responsible for all costs
(including personnel, maintenance and repair) associated with communications
equipment (including terminals, communications hardware, modems and telephone
lines) that Recipient owns or operates and that are not located at the Service
Provider Service Location necessary to provide the Services or to transmit the
Recipient Data for processing at the Service Provider Service Location.
4.3 SECURITY. Service Provider shall be responsible for
authorizing Recipient's security access to Recipient's Data. Recipient's Chief
Financial Officer or his designee shall specify its employees with security
access. Recipient shall ensure that user accounts shall only be used by the
person for whom such account was created or other authorized personnel.
Recipient shall promptly inform Service Provider of any individual who is no
longer authorized to use the Services. Recipient acknowledges all services will
be rendered by the Service Provider and agrees it shall not contact the Service
Provider's Data Center other than for in emergency situations.
4.4 Business Planning. During the term of this Agreement,
Recipient shall, within a reasonable period of time after such plans are
available, provide Service Provider with a detailed plan identifying any changes
in Recipient's business that may affect the Services or result in additional
capacity being required in order for Service Provider to provide the Services to
Recipient. Recipient's business plan provided to Service Provider pursuant to
this Section 4.4 shall be deemed confidential information of Recipient.
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ARTICLE 5. PROPRIETARY RIGHTS.
5.1 SERVICE PROVIDER SOFTWARE . All Service Provider Software is,
or shall be, and shall remain, the exclusive property of Service Provider or its
third party licensor and Recipient shall have no rights or interests to the
Service Provider Software. Service Provider shall obtain any consents or
approvals necessary in connection with Service Provider's use of the Service
Provider Software to provide the Services to Recipient. The Recipient will be
required to obtain and pay for any licenses required beyond those that the
service provider specifically takes responsibility for on Schedule D.
ARTICLE 6. DATA
6.1 FORM OF DATA. All data submitted by Recipient to Service
Provider in connection with the Services shall be in the form substantially
similar to that submitted before the Distribution date, unless otherwise agreed
to in writing by the parties.
6.2 OWNERSHIP OF DATA. The Recipient Data is and shall remain the
property of Recipient or its customers.
6.3 OWNERSHIP OF MEDIA. Unless furnished to Service Provider by
Recipient, all media upon which Recipient Data is stored is and shall remain the
property of Service Provider. Recipient may, upon Service Provider's consent,
(1) provide Service Provider with a replacement for the media upon which the
Recipient Data is stored or (2) purchase such media from Service Provider at the
price specified by Service Provider.
6.4 RESPONSIBILITY FOR DATA . Recipient is responsible from the
Agreement Date for (1) the accuracy and completeness of the data submitted by
Recipient in connection with the Services and (2) any errors in and with respect
to data obtained from Service Provider because of any inaccurate or incomplete
data submitted by Recipient to Service Provider. Service Provider shall maintain
the records and data submitted by Recipient in such form as to readily allow
their return at the termination or expiration of the Agreement in either
electronic or paper formats, as appropriate.
ARTICLE 7. FEES
7.1 FEES. Recipient shall pay to Service Provider through the end
of calendar 2003 the fees set forth in Schedule E in respect of each of the
Shared Transaction Services. Commencing January 1, 2001, the fees for each such
Service shall increase (with no adjustment for volumetrics) by five percent (5%)
except for facilities costs and LAN support costs, the fees for which shall
increase by not more than the percentage increase imposed on Service Provider by
its landlord or LAN support vendor. Services provided by the service provider
which are not specifically covered in this agreement will be rendered at the
market rates charged by Price Waterhouse Coopers for the equivalent level of
expertise and service.
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7.2 Time of Payment. The Fees shall be paid by Recipient monthly
in advance on or before the first day of each calendar month of the term of the
contract.
7.3 SUBSTANTIAL CHANGE IN VOLUME . If Recipient's use of a Shared
Service increases above the level set forth in Schedule A, Service Provider
shall determine whether any additional hardware or software is necessary to
allow Service Provider to render the Shared Service. If Service Provider and
Recipient agree, under this Section 7.3, that additional hardware or software is
required, (1) Service Provider shall acquire upon Recipient's request, such
additional hardware or software on behalf of Recipient and Recipient shall pay
to Service Provider or to the supplier or third party lessor, as may be
applicable, the purchase or lease fees in respect of such additional hardware or
software, (2) Service Provider shall implement an appropriate increase to the
Fees and (3) the Parties shall establish a mechanism for determining the costs
to Service Provider of maintaining such additional hardware or software beyond
the Initial Term and, if any, the Extended Term and Recipient shall pay such
costs to Service Provider upon the expiration or termination of this Agreement.
Except as otherwise agreed in writing by the Parties, all rights in and title to
any hardware or software acquired by Service Provider on behalf of Recipient and
paid for by Recipient shall belong to Recipient.
7.4 TAXES . Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge imposed by any government or government agency on Recipient or Service
Provider with respect to the Services or the execution or performance of this
Agreement.
7.5 LATE PAYMENTS . Any fees or payments owing to Service Provider
under this Agreement remaining unpaid 30 days after their due date shall bear
interest at the prime rate plus two (2) percent per month, but not exceeding the
highest lawful rate of interest, calculated from the date such amount was due
until the date payment is received by Service Provider.
ARTICLE 8. AUDITS
Recipient shall have the right during normal business hours and
upon reasonable advance notice, to review the Data Center processes and
procedures as well as the computer printouts and reports and other records of
Service Provider to the extent such books and records relate to the provision by
Service Provider of the Services. Any such review shall be conducted at
Recipient's sole expense. Service Provider shall perform periodic internal
control reviews of the activities at its service and data centers at its
expense. To the extent permitted by law or accounting rules, Recipient's
accountants shall be entitled to review the work papers resulting from such
internal control review.
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ARTICLE 9. CONFIDENTIALITY .
Neither Party shall use nor permit others to use the confidential
information of the other Party without its prior consent and shall keep, and
cause its consultants and advisors to keep, confidential all information
concerning the other Party in its possession, its custody or under its control,
except to the extent (1) such information has been in the public domain through
no fault of such Party or (2) such information has been later lawfully acquired
from other sources by such Party or (3) this Agreement or any other agreement
entered into pursuant to this Agreement permits the use or disclosure of such
information, to the extent such information (a) relates to the period up to the
Distribution Date or (b) is obtained in the course of providing or receiving the
Services under this Agreement, and neither Party shall without the prior consent
of the other, otherwise release or disclose such information to any other
person, except such Party's auditors and attorneys, unless compelled to disclose
such information by judicial or administrative process or unless such disclosure
is required by law and such Party has used commercially reasonable efforts to
consult with the other Party prior to such disclosure.
ARTICLE 10. INDEMNITY .
10.1 Each Party shall indemnify and hold the other Party harmless
in respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorney's fees) arising from the gross negligence or willful
misconduct, fraud, theft and illegal acts of the employees, agents or other
representatives of the indemnifying Party after the Agreement Date.
10.2 Each Party shall also indemnify and hold the other harmless
for the breach of its covenants or other obligations under the Agreement which
constitute gross negligence or willful misconduct. A breach of the covenant of
confidentiality under Article 9, above, shall not be indemnified if the
confidential information disclosed was protected under the same standard of
confidentiality used by the disclosing Party to protect its own confidential
information.
10.3 Recovery under the provisions of sections 10.1 and 10.2,
above, shall be the exclusive remedy of each Party for a breach of this
Agreement by the other and in no event shall either Party have any liability to
the other for any claims, losses, damages, judgments, costs or expenses which
the other Party may suffer or incur as a result of injuries to personnel of such
other Party or loss or theft or damage to any personal property of such other
Party at the Service Provider Service Location, except as provided in 10.1,
above.
ARTICLE 11. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
11.1 WARRANTY. Service Provider warrants the Services shall be
substantially of the same type, quality and utilization levels and provided with
substantially the same degree of care and diligence as such services had been
provided to Recipient during the period prior to the Distribution Date.
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11.2 DISCLAIMER . EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES, THE
LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED DOCUMENTATION,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
11.3 LIMITATION OF LIABILITY . Recipient acknowledges the Services
are provided by Service Provider (1) at the request of Recipient in order to
accommodate the Distribution, (2) with the expectation it is not assuming any
financial or operational risks, including those usually assumed by a service
provider. Accordingly, Recipient agrees Service Provider shall not be liable for
indirect, special, incidental or consequential damages, including lost profits
or savings, whether or not such damages are foreseeable, relating to the
Services or Service Provider's performance under this Agreement.
ARTICLE 12. DISPUTE RESOLUTION .
12.1 NEGOTIATION. In the event of a controversy, dispute or claim
arising out of, or in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement or the transactions
contemplated hereby, including any claim based in contract, tort, statute or
constitution (collectively, "Agreement Disputes"), the controllers, then the
chief financial officers and, finally, the chief executive officers of the
Parties shall negotiate in good faith for a reasonable period of time to settle
such Agreement Dispute, provided such reasonable period shall not, unless
otherwise agreed by the Parties in writing, exceed 30 days from the time the
Parties began such negotiations; provided further, that in the event of any
arbitration in accordance with Section 12.2, the Parties shall not assert the
defenses of statute of limitations and laches arising for the period beginning
after the date the Parties began negotiations hereunder, and any contractual
time period or deadline under this Agreement to which such Agreement Dispute
relates shall not be deemed to have passed until such Agreement Dispute has been
resolved.
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12.2 ARBITRATION. If after such reasonable period such general
counsels are unable to settle such Agreement Dispute (and, in any event, unless
otherwise agreed in writing by the Parties, after 60 days have elapsed from the
time the Parties began such negotiations), such Agreement Dispute shall be
determined, at the request of a Party, by arbitration conducted in New York
City, before and in accordance with the then-existing International Arbitration
Rules of the American Arbitration Association (the "Rules"). In any dispute
between the Parties, the number of arbitrators shall be three. Any judgment or
award rendered by the arbitrators shall be final, binding and nonappealable
(except on grounds specified in 9 U.S.C. Section 10(a), as in effect on the
Agreement Date). If the Parties are unable to agree on the arbitrators, the
arbitrators shall be selected in accordance with the Rules; provided that each
arbitrator shall be a U.S. national. Any controversy concerning whether an
Agreement Dispute is an Agreement Dispute subject to arbitration, whether
arbitration has been waived, whether an assignee of this Agreement is bound to
arbitrate, or as to the interpretation or enforceability of this Article 12
shall be determined by the arbitrators. In resolving any dispute, the Parties
intend that the arbitrators apply the substantive laws of the State of New York,
without regard to the choice of law principles thereof. The Parties intend that
the provisions to arbitrate set forth in this Section 12.2 be valid, enforceable
and irrevocable. The Parties agree to comply with any award made in any such
arbitration proceeding that has become final in accordance with the Rules and
agree to enforcement of or entry of judgment upon such award, by any court of
competent jurisdiction, including (1) the Supreme Court of the State of
______________________, or (2) the United States District Court for the District
of __________, in accordance with Section 16.16. The arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including
monetary damages, specific performance and all other forms of legal and
equitable relief; provided, however, the arbitrators shall not be entitled to
award punitive damages. Without limiting the provisions of the Rules, unless
otherwise agreed in writing by the Parties or as permitted by this Agreement,
the Parties shall keep confidential all matters relating to the arbitration or
the award, provided such matters may be disclosed (a) to the extent reasonably
necessary in any proceeding brought to enforce the award or for entry of a
judgment upon the award and (b) to the extent otherwise required by law.
Notwithstanding Article 32 of the Rules, the losing Party in the arbitration
shall be responsible for all of the costs of the arbitration, including legal
fees and other costs specified by such Article 32. Nothing contained in this
Section 12.2 is intended to or shall be construed to prevent either Party, in
accordance with Article 22(3) of the Rules or otherwise, from applying to any
court of competent jurisdiction for interim measures or other provisional relief
in connection with the subject matter of any Agreement Disputes.
12.3 CONTINUITY OF SERVICES AND PERFORMANCE . Unless otherwise
agreed in writing, the Parties shall continue to provide the Services and honor
all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article 12 with respect to all
matters not subject to such dispute, controversy or claim.
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ARTICLE 13. CONTINUED PROVISION OF SERVICES
13.1 FORCE MAJEURE. Service Provider shall not be in default of
its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be released
from any payment obligation to Service Provider in respect of such Services
during the period of such force majeure.
13.2 BUSINESS RECOVERY. Service Provider shall maintain a business
recovery plan for the shared services center and data center. Recipient shall
communicate to Service Provider any subsequent changes in its processes and
systems requiring changes in the business recovery plan. The costs of effecting
any such change will be assumed by Recipient which will receive copies of the
revised business recovery plans upon completion. If a disaster occurs affecting
the Services, Service Provider shall implement the business recovery plan and
Recipient shall be responsible for its proportionate share of any fees incurred
by Service Provider in connection with implementing the business recovery plan.
ARTICLE 14. TERMINATION .
14.1 EFFECT OF TERMINATION. Upon the termination of this
Agreement, Recipient shall pay to Service Provider, no later than the effective
date of such termination, the balance of the Fees due. Recipient shall not be
liable to Service Provider for any costs associated with a closure of the
Service Provider's service center should it decide to discontinue operating the
service center as a result of the termination or expiration of this Agreement.
ARTICLE 15. TERMINATION ASSISTANCE SERVICES
Upon the expiration or the effective date of termination of this
Agreement, Service Provider shall have no further obligation to provide the
Services to Recipient except that:
(1) for a period up to (a) 120 days prior to the expiration or the effective
date of termination of this Agreement and (b) 60 days following the
expiration of this Agreement or the effective date of termination of this
Agreement, Service Provider shall use reasonable efforts to cooperate, at
Recipient's expense, with (i) the Alternative Provider or (ii) Recipient,
in connection with the transfer of the Services, the Recipient Data, the
Licensed Software and the Licensed Documentation as provided in Section
5.2, from Service Provider to the facilities of (x) the Alternative
Provider or (y) Recipient, as requested by Recipient;
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(2) the rights granted to Service Provider in Section 5.1 shall immediately
terminate and Service Provider shall deliver to Recipient (a) a current
copy of the Licensed Software in the form in use as of that time and (b)
a current copy of the Licensed Documentation in the form in use as of
that time;
(3) Service Provider will render to Recipient at its incremental cost such
assistance as is reasonably necessary to effect a transition of the
services provided under this agreement to an Alternate Provider at a new
location; and
(4) Service Provider will continue to prepare and forward to Recipient for up
to six months after the termination of services and at Recipient's cost,
tax returns, withholding statements (W-2), earnings statements (1099) and
other payroll filings related to the service period for the fee
previously established under the Agreement for such services.
ARTICLE 16. MISCELLANEOUS PROVISIONS
16.1 NO WAIVERS. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
16.2 CONSENTS, APPROVALS AND REQUESTS. Unless otherwise specified
in this Agreement, all consents and approvals, acceptances or similar actions to
be given by either Party under this Agreement shall not be unreasonably withheld
or delayed and each Party shall make only reasonable requests under this
Agreement.
16.3 PARTIAL INVALIDITY. In the event any of the provisions of
this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
16.4 NOTICES. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
If to Service Provider: IMS HEALTH Incorporated
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
If to Recipient: Synavant, Inc.
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Telecopy No.: (___) ___________
Attention: Chief Legal Officer
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
16.5 RELATIONSHIP. The performance by Service Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
16.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF _______________________ APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN _________________________.
16.7 COVENANT OF FURTHER ASSURANCES. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver any further legal instruments and perform any acts which are or may
become reasonably necessary to effectuate this Agreement.
16.8 ASSIGNMENT. This Agreement may not be assigned by either
Party, other than to an affiliate of such Party or pursuant to a corporate
reorganization or merger, without the consent of the other Party. Any assignment
in contravention of this Section 16.8 shall be void.
16.9 ENTIRE UNDERSTANDING. This Agreement represents the entire
understanding of the Parties with respect to the Services and supersedes all
previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as herein expressly set forth.
16.10 SUCCESSORS. Subject to the restrictions on assignment set
forth in Section 16.8, this Agreement shall be binding upon and inure to the
benefit of and be enforceable against the Parties hereto and their respective
successors and assigns.
16.11 AMENDMENTS. This Agreement can be modified or amended only
by a written amendment executed by both Parties.
16.12 SURVIVAL. The provisions of Article 5, Article 8, Article 9,
Article 10, Article 11, Article 12, Article 15, Section 6.2, Section 6.3,
Section 7.1, Section 7.2, Section 7.5, Section 14.2, Section 16.6, this Section
16.12, Section 16.14 and Section 16.17 shall survive the expiration or
termination of this Agreement.
16.13 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which
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shall be deemed an original, but all of which shall constitute one and the same
instrument.
16.14 GOOD FAITH AND FAIR DEALING. Each Party hereby agrees that
its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
16.15 THIRD PARTY BENEFICIARIES. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
16.16 CONSENT TO JURISDICTION. Without limiting the provisions of
Article 12 hereof, each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of _____________________________(b) the
United States District Court ____________________________ for the purposes of
any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties agrees to commence any
action, suit or proceeding relating hereto either in the United States District
Court _____________________or if such suit, action or other proceeding may not
be brought in such court for jurisdictional reasons, in
the____________________________. Each of the parties further agrees that service
of any process, summons, notice or document by U.S. registered mail to such
party's respective address set forth above shall be effective service of process
for any action, suit or proceeding in _____________with respect to any matters
to which it has submitted to jurisdiction in this Section 16.16. Each of the
parties irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court
__________________________________ or _____________________________and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
16.17 NON-SOLICITATION. Recipient covenants and agrees for a three
year period commencing July 1, 2000 it will not employ or solicit for employment
any Service Provider employee working at the data centers or shared services
center or rendering services to Recipient without Service Provider's prior
written consent.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
IMS HEALTH INCORPORATED
By:
Name:
Title:
SYNAVANT INC.
By:
Name:
Title:
