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SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES
AGREEMENT ("Agreement") is made and effective
as of May 1, 2004 (the "Effective Date") by
and between PHASE FORWARD
INCORPORATED, a Delaware corporation having
its principal offices at 880 Winter
Street, Waltham, MA 02154 ("Phase
Forward"), and GLAXOSMITHKLINE SERVICES
UNLIMITED, a member of the GlaxoSmithKline
group and a corporation organized and
existing under the laws on England, having
an address at 980 Great West Road,
Brentford, Middlesex TW8 9GS, England.
Phase Forward and GSK collectively are
sometimes hereinafter referred to as the
"Parties", and individually as a
"PARTY".
WHEREAS, GSK issued a request for proposal ("RFP") for computer
software conforming to certain
functionality and design requirements;
WHEREAS, Phase Forward responded to the RFP with a proposal to
provide
Phase Forward's proprietary software to
GSK; and
WHEREAS, in reliance on Phase Forward's response to the RFP and
subsequent pilot testing and negotiations
with Phase Forward, GSK now desires to
license and use such proprietary software
on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and
the
mutual covenants and agreements contained
herein, the parties hereto, intending
to be legally bound, hereby agree as
follows:
1.
DEFINITIONS. For purposes of this Agreement, the following terms
shall
have the following meanings and shall
include the plural as well as the
singular:
1.1
"AFFILIATES" with respect to either Party means any
partnership, joint venture, corporation or
other form of business entity,
domestic or foreign including, but not
limited to, subsidiaries, which directly
or indirectly controls, is controlled by,
or is under common control with such
Party. For purposes of this Paragraph 1.1,
"control" means the possession,
directly or indirectly, of the power to
direct or cause the direction of the
management and operating policies of the
entity in respect of which the
determination is being made, through the
ownership of voting securities
contract, voting trust or otherwise.
1.2 "COMPUTER
SYSTEM" means any and all computer processing units
and peripheral equipment, including without
limitation, any cluster, combination
or network of such processing units and
peripheral equipment which are now, or
in the future, owned, leased or operated by
or for GSK or a GSK Affiliate and
which are used for GSK's or a GSK
Affiliate's internal business purposes or in
support of a joint venture, partnership or
strategic business or marketing
alliance in which GSK or a GSK Affiliate is
a partner, joint venturer or
participant.
1.3
"CONFIDENTIAL INFORMATION" shall have the meaning specified in
Paragraph 7.1 hereof.
1.4
"CONTRACTORS" means organizations (including, but not limited
to, consulting firms and contract research
organizations), the employees of such
organizations, and persons that provide
services to GSK on a consulting or
outsourcing basis.
1.5
"DELIVERABLES" means the Software, Documentation and any items
or materials specified as "Deliverables" in
a Statement of Work resulting from
Services provided by Phase Forward to GSK
hereunder.
1.6 "DELIVERY
DATE" for Software means the later of (a) the
Delivery Date specified in the Order
Schedule for such Software, or (b) the date
GSK has received such Software (whether
delivered by common carrier or an
employee or agent of Phase Forward or
electronically through the Internet or
other network).
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1.7
"ENHANCEMENTS" means any change or addition, other than
Maintenance Modifications, to the Software
and related Documentation, including
new releases of the Software that improve
functions, add new functions or
significantly improve performance by
changes in system design or coding,
delivered to GSK pursuant to this Agreement
but do not include Software licensed
by Phase Forward as a separate product.
1.8 "ERROR"
means any error, problem or defect resulting from (i)
an incorrect functioning of the Software,
(ii) an incorrect or incomplete
statement or diagram in Documentation, if
such an error, problem or defect
renders the Software inoperable, causes the
Software to fail to meet the
applicable Specifications or causes the
Documentation to be inaccurate or
incomplete in any material respect, (iii)
causes the Software to produce
incorrect results, or causes incorrect
functions to occur in the Software when
used in accordance with the applicable
Documentation.
1.9 "GSK"
means GlaxoSmithKline Services Unlimited and includes
its Affiliates.
1.10
"DOCUMENTATION" means the user manuals, product release notes,
known problem lists and any other
documentation (whether printed, electronic or
online) which Phase Forward may from time
to time customarily provide to its'
licensees of the Software, and (where the
context so admits) any copies thereof.
1.11
"INVESTIGATIONAL PRODUCTS" means medical procedures, drugs or
devices which GSK is testing in clinical
trials.
1.12
"INVESTIGATORS" means clinical investigative organizations
(such as, but not limited to, hospitals,
medical clinics, and physicians'
organizations and practices), employees of
such organizations, and individual
investigators that treat, monitor and
provide information about subjects
participating in clinical trials of
Investigational Products.
1.13
"MAINTENANCE MODIFICATIONS" means any modifications or
revisions, other than Enhancements, to
Software or Documentation that correct
Errors, support new releases of the
operating systems with which the Software is
designed to operate, support new
input/output devices, or provide other
incidental updates and corrections
including, without limitation, bug fixes,
work-arounds and patches, required to
maintain conformity of the Software and
Documentation with the applicable
Specifications.
1.14
"ORDER SCHEDULE" means a license order schedule substantially
in the form of the sample License Order
Schedule attached hereto as Exhibit A.
1.15
"PHASE FORWARD" means Phase Forward Incorporated and its
Affiliates.
1.16
"SERVICES" means the services provided by Phase Forward to GSK
pursuant to a Statement of Work.
1.17
"SOFTWARE" means the object code of the software program(s)
specified in an Order Schedule. "Software"
shall also include all Maintenance
Modifications, Enhancements, tutorials,
utilities, and other software programs
supplied by Phase Forward from time to time
and delivered to GSK pursuant to an
Order Schedule.
1.18
"SPECIFICATIONS" means the functions, performance parameters,
features, and/or design of the Software as
published in its then-current
Documentation.
1.19
"STATEMENT OF WORK" or "SOW" shall mean a document
substantially in the form attached hereto
as Exhibit C setting forth, among
other things, the specific Services and
Deliverables to be provided by Phase and
the fees to be paid by GSK in respect
thereof.
1.20
"SUPPORT" refers to the support services specified in Schedule
2 attached hereto.
1.21
"TRIALS" means clinical research studies of Investigational
Products.
1.22
"OTHER TERMS" Other terms used in this Agreement are defined
where they are used and have meanings there
indicated. Those terms, acronyms and
phrases used in the information technology
("IT") services industry or other
pertinent business context shall be
interpreted in accordance with their
generally understood meaning in such
industry or
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business context.
2.
ORDERING SOFTWARE AND SERVICES
2.1 ORDER
SCHEDULE. GSK may license Software and contract for
Services from time to time pursuant to
Order Schedules or SOWs, as applicable.
Each Order Schedule and SOW shall become
effective only after it is executed by
both Parties. Each Order Schedule and SOW
shall specifically refer to this
Agreement and, except to the extent that
the Parties agree in writing in the
Order Schedule or SOW, as applicable, that
different terms and conditions shall
apply to such Order Schedule or SOW than
set forth herein, the terms and
conditions of this Agreement shall govern
such Order Schedule or SOW. Upon
execution by both Parties, Order Schedules
and SOWs shall become part of, and be
subject to the terms of this Agreement.
3.
LICENSES
3.1 GRANT OF
LICENSES. In consideration of GSK's payment of the
license and other fees specified in an
Order Schedule and GSK's covenants
contained herein, and subject to GSK's
compliance with the terms hereof, Phase
Forward hereby grants to GSK a worldwide,
nonexclusive, nontransferable (except
as hereinafter permitted) right and license
(without the right to further
sublicense) to use the Software specified
in an Order Schedule on the Computer
Systems solely for GSK's internal use in
connection with Trials sponsored by GSK
(the "License").
3.2 SCOPE AND
TERM OF LICENSES. The License for the Software
specified in an Order Schedule authorizes
GSK, for the initial term specified
therein (the "Initial Term"), to install,
execute, copy for archival purposes,
and use the number of copies of the
Software specified in such Order Schedule,
and to use the Documentation for such
Software in conjunction with its
installation and use.
3.3 RENEWAL OF
LICENSES. Provided GSK is not then in breach of its
obligations under this Agreement, the
License for the Software may be renewed
(each, a "Renewal Term") as specified in
the Order Schedule.
3.4
CONTRACTORS AND INVESTIGATORS. Access to and use of Software
by Contractors and Investigators in
connection with Trials sponsored by GSK and
its Affiliates shall be deemed to be
"internal use" within the meaning of
Paragraph 3.1, provided that all such use
is in accordance with the terms
hereof. In addition, GSK may provide access
to the Software to off-site third
parties to whom GSK has outsourced
information systems responsibilities
(including contract research organizations
or other organizations providing
similar services that have been certified
as trained by Phase Forward in the use
of the Software) provided that all such use
by such third parties is solely for
GSK's business purposes. In addition, GSK
may, with the prior written approval
of Phase Forward (which approval shall not
be unreasonably withheld or delayed),
provide access to the Software to contract
research organizations or other
organizations providing similar services
that are not certified as trained in
the use of the Software Prior to receiving
any access to, or using, the Software
or Documentation, such third parties must
have executed a written agreement with
GSK in which they agree to use the Software
and Documentation solely for GSK's
business purposes and comply with
obligations of confidentiality regarding the
Software and Documentation set forth
therein that are no less restrictive than
those applicable to the Software and
Documentation set forth in this Agreement.
GSK shall be responsible for any breach of
this Agreement by such third parties.
3.5
THIRD-PARTY SOFTWARE. GSK acknowledges that the third-parry
software specified in the Documentation
("Third-Party Software") is required in
order to use the Software, GSK further
acknowledges that the License granted by
Phase Forward for Software does not include
licenses for any such Third-Party
Software and that GSK is solely responsible
for obtaining valid licenses for all
such necessary Third-Party Software. Phase
Forward represents and warrants that
all Third Party Software will be available
on the open market as of the date of
Delivery of the Software to GSK.
3.6 USE OF THE
SOFTWARE. GSK agrees to use commercially reasonable
efforts to advise all users of the Software
(including, without limitation,
Contractors and Investigators) that (i) the
Software is designed to expedite and
improve the collection, management and
analysis of specific and limited data in
Trials: (ii) such data do not comprise a
complete patient medical record; (iii)
such data may be incorrect because of
transcription or other errors; (iv) the
Software is not a diagnostic or therapeutic
aid and must be used only for
research purposes, and (v) data collected
by, or analyses performed by, the
Software must not be used for patient
diagnosis or therapy decisions.
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3.7
REPRESENTATIONS BY GSK. GSK represents and covenants, with
respect to all Trials for which the
Software is used, 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 such language which in
GSK's judgment is reasonably necessary, and
such consent forms will be
implemented and obtained from subjects
under such procedures which in GSK's
judgment are reasonably necessary, to
ensure compliance with the foregoing.
4.
DELIVERY AND ACCEPTANCE; SUPPORT; SERVICES
4.1 DELIVERY
AND ACCEPTANCE.
4.1.1
DELIVERY. Phase Forward shall arrange for delivery of
the Software specified in an Order Schedule
to GSK by an employee or agent of
Phase Forward or electronically through the
Internet or other network.
4.1.2
TESTING. Upon initial delivery of a Software program
(i.e., the first copy or copies of a
particular program to GSK) and its
Documentation, unless otherwise specified
in the applicable Order Schedule, GSK
shall have sixty (60) days to test and/or
review the Software in accordance with
this Paragraph 4.1 and the Acceptance
Testing Procedures and Criteria set forth
in the applicable Order Schedule (the
"Acceptance Tests") to determine whether
the Software conform to the applicable
Specifications. Unless otherwise
specified in the applicable Order Schedule,
such testing and/or review shall be
conducted in accordance with the following
procedures and criteria:
(a) GSK will
notify Phase Forward, in writing,
that it is accepting or rejecting the
Software within sixty (60) days after
installation. If GSK fails to notify Phase
Forward within of any failure within
the 60 day acceptance period, the Software
shall be deemed accepted. Any notice
of rejection shall set forth the grounds
for rejection. Phase Forward shall use
commercially reasonable efforts to remedy
any failure of the Software to conform
to the applicable Specifications and shall
thereafter have, unless otherwise
agreed to by the parties in writing, thirty
(30) days to correct the deficiency
and to deliver corrected Deliverables to
GSK.
(b) Upon
receipt of corrected Deliverables, GSK
shall have thirty (30) business days within
which to test and/or review them and
inform Phase Forward of its acceptance or
rejection. This procedure may be
repeated any number of times; provided,
however, if GSK detects a failure of the
Software to meet the Specifications after
it has been tested twice, either party
shall thereafter have the right to
terminate the applicable Order Schedule upon
written notice to the other party. Upon
such termination and compliance with its
obligations under Paragraph 12.5, GSK shall
be entitled to a full refund of all
license fees made to Phase Forward for the
Software prior to rejection, and
thereafter shall have no further
obligations or liability to Phase Forward.
4.1.3
ACCEPTANCE. If, after completing the Acceptance
Tests, GSK determines that the Software
conforms to the applicable
Specifications, GSK shall accept the
Software by issuing a written confirmation
of acceptance to Phase Forward effective as
of the date of successful completion
of the tests ("Acceptance").
4.2 SUPPORT.
In the normal course of business, Phase Forward
intends to continue to invest in and
enhance the Software. Subject to the terms
of this Agreement, Phase Forward shall
provide GSK with the Support, including
Upgrades and new Versions of the Software,
or functional equivalent products or
replacement products that provide web based
investigator site data capture and
clinical data management capability, when
and if commercially available, as set
forth in Schedule 2 hereto.
4.3 PERSONNEL.
All personnel provided by Phase Forward to provide
Services hereunder, whether employees of
Phase Forward or subcontractors, shall
be fully trained, competent and qualified
to provide such Services. All work
shall be performed at such facilities as
are mutually agreed appropriate and
shall be performed only by employees or
subcontractors of Phase Forward. GSK
shall have the right to request the
replacement of any Phase Forward personnel
performing Services hereunder who, in the
reasonable judgment of GSK, are not
performing in a reasonably satisfactory
manner. Such requests shall be made in
writing and include a statement of the
reasons for GSK's request. In the event
of such a request, or in the
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event Phase Forward replaces personnel
performing Services hereunder due to
their termination or resignation of
employment with Phase Forward, Phase Forward
will use commercially reasonable best
efforts to promptly replace such personnel
with personnel having adequate training,
experience and qualifications to
provide the Services.
4.4 ACCESS;
COMPLIANCE. To the extent that Services or Support are
provided on the premises of GSK, GSK agrees
to provide reasonable working space
and facilities, and any other services and
materials Phase Forward or its
personnel may reasonably request in order
to provide such Services or Support.
Phase Forward shall ensure that its
personnel at all times observe the security
and safety policies and working hours of
GSK when providing Services or Support
on GSK's premises, and that the
requirements of all federal, state and municipal
laws, statutes, ordinances, rules,
regulations, orders, licenses and permits now
or hereafter in force applicable to
Services, Support and this Agreement are
complied with.
4.5 GUIDANCE.
GSK will advise Phase Forward of the GSK personnel
to whom Phase Forward's personnel will look
for guidance in connection with
Deliverables provided hereunder. To the
extent the Services or Support are
performed on the premises of GSK or are
performed off the premises of GSK but
require the use of GSK's resources or the
active involvement of GSK's personnel,
Phase Forward shall at all times use
commercially reasonable efforts to minimize
any disruptions to GSK's normal business
operations.
4.6
SUBCONTRACTORS. Subject to the provisions of Paragraph 14.3,
Phase Forward may, in its sole discretion,
engage individuals who are
independent contractors under contract with
Phase Forward to supplement its own
staff and other subcontractors with whom it
contracts to provide Services
hereunder and may engage such independent
and sub- contractors on such terms as
it reasonably deems necessary provided such
terms are consistent with the
obligations imposed in Phase Forward
hereunder. All such independent contractors
and subcontractors shall be required to
enter into written agreements with Phase
Forward imposing obligations of
confidentiality on such independent contractors
and subcontractors substantially the same
as those imposed on Phase Forward
hereunder with respect to GSK's
confidential and proprietary materials and
information. . Notwithstanding the
foregoing, Phase Forward shall be and remain
primarily liable and responsible for the
compliance with the provisions of this
Agreement, including those relating to the
confidentiality of GSK's confidential
and proprietary materials and
information.
5.
FEES, PAYMENTS AND TAXES
5.1 FEES. Fees
for Software (which include the cost of supplying
Support) provided by Phase Forward pursuant
to this Agreement shall be set forth
in the applicable Order Schedule and
payable in accordance with such Order
Schedule and this Section 5. Fees for
Services provided by Phase Forward
pursuant to this Agreement shall be set
forth in the applicable SOW and payable
in accordance with such SOW and this
Section 5. Unless otherwise agreed by the
parties in writing, invoices shall be sent
from Phase Forward Europe Limited to
GSK, and the amounts due thereunder shall
be stated in Pound Sterling.
5.2 EXPENSES.
GSK shall reimburse Phase Forward for out-of-pocket
travel and lodging expenses reasonably and
actually incurred by Phase Forward in
providing Support and Services to GSK,
provided that such expense have been (i)
approved by GSK in advance, and (ii)
incurred in conformance with GSK's
Contractor Time and Expense Reimbursement
Guidelines attached as Exhibit B
attached hereto. GSK shall not, however, be
billed for travel to sites less than
fifty (50) miles from an employee's or
subcontractor's residence or office.
Expenses will be payable and invoiced
monthly in accordance with Paragraph 5.4.
5.3 NO
ADDITIONAL CHARGES. Unless otherwise expressly set forth in
an Order Schedule or an SOW , there shall
be no additional charges for Support
or Services including, without limitation,
charges based on the distance of
GSK's sites from Phase Forward.
5.4 PAYMENT.
Unless GSK has reasonable cause to believe that Phase
Forward has rendered an invoice improperly
(in which event GSK shall promptly
notify Phase Forward and the Parties shall
promptly review the invoice and
supporting documentation and negotiate in
good faith to resolve any dispute),
GSK shall make each payment specified in
this Section 5 within forty-five (45)
days after receipt of Phase Forward's
invoice.
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5.5 RECORDS
AND AUDITS.
5.5.1 BY
GSK. During the term of any Order Schedule and for
a period of two (2) years after its
termination, GSK shall keep such records
that are reasonably necessary to verify
that the Software have been installed
and used as specified in such Order
Schedule. Prior to the second (2nd)
anniversary of the termination of any Order
Schedule, Phase Forward shall have
the right, at its own expense, to cause
audits to be conducted by a major
national accounting firm of any of GSK's
relevant records relating to the
foregoing. Any such audit shall be
conducted during regular business hours at
GSK's offices and in such a manner as not
to unreasonably interfere with GSK's
normal business activities. GSK or Phase
Forward, as the case may be, shall make
prompt adjustment to compensate for any
errors or omissions in any fees payable
to Phase Forward disclosed by an audit.
Notwithstanding the foregoing, GSK shall
pay for the cost of any audit if such audit
discloses errors or omissions
resulting in underpayment to Phase Forward
of more than ten percent (10%) in the
aggregate. In no event shall audits be made
more frequently than annually,
unless a prior audit within the previous
twelve (12) months has disclosed such
underpayment. The results of such audits
shall be considered the Confidential
Information of GSK for purposes of Section
7 hereof.
5.5.2 BY
PHASE FORWARD. Phase Forward shall make and keep
complete written records of all Services
performed and expenses incurred
pursuant to this Agreement. Phase Forward
shall provide to GSK, its auditors
(including internal audit staff and
external auditors, (with such external
auditors being subject to Phase Forward's
approval, which approval shall not to
be unreasonably withheld or delayed),
engaged at GSK's expense, and government
regulators access upon reasonable notice
(and, in the case of regulators, at any
time required by such regulators, but in
the case of audits independently
initiated by GSK, limited to no more than
twice annually during the Term of any
License) to (a) any facility or part of a
facility at which Phase Forward is
providing Services (or, in the instances
where such Services are performed or
provided by Phase Forward using permitted
independent contractors and
subcontractors, Phase Forward shall obtain
complete and accurate records of the
Services performed and expenses incurred by
such permitted independent
contractors and subcontractors and make
them available to GSK's audit staff and
external auditors as aforesaid), (b) Phase
Forward Personnel, (c) to summaries
of audit reports resulting from audits that
Phase Forward has conducted of its
subcontractors, and (d) data and records
relating to the Services for the
purpose of performing audits and
inspections of either Phase Forward or any of
its permitted subcontractors during the
Term and for the period Phase Forward is
required to maintain records hereunder,
to:
(i) Verify the
accuracy of fees, expenses and other
charges invoiced;
(ii)
Examine the systems that process, store, support and
transmit that Data; and
(iii)
Examine the following in accordance with performance
of the Services and to the charges therefore: (a)
Phase Forward's compliance with its Standard
Operating Procedures; (b) supporting information and
calculations regarding compliance with Service
Levels; (c) disaster recovery and back-up procedures;
(d) as necessary to enable GSK to meet, or to confirm
that Phase Forward is compliant with applicable
regulatory and other legal requirements; and (e)
Phase Forward's compliance with the requirements of
the following GSK Policies: (1) External Systems
Security Requirements (attached hereto as Exhibit D);
(2) Web Hosting Requirements (attached hereto as
Exhibit E); and (iii) Records Retention Policy and
Schedule (attached hereto as Exhibits F and F-1
respectively).
5.5.3
COOPERATION. Phase Forward shall provide to the
auditors, inspectors, regulators and other
representatives to be provided access
to Phase Forwards records pursuant to
Paragraph 5.5.2 above such assistance as
they may reasonably require, at GSK's sole
expense. Phase Forward shall
cooperate fully with GSK or its designees
in connection with audit functions and
with regard to examinations by regulatory
authorities. GSK's auditors and other
representatives shall comply with Phase
Forward reasonable security
requirements. Phase Forward shall conduct
audits of or pertaining to the
Services in such manner and at such times
as is consistent with the terms of
this Agreement and the audit practices of
well managed operations performing
services similar to the Services. Phase
Forward shall perform a security audit
at least annually during the Term hereof.
Notwithstanding the intended breadth
of GSK's audit rights, GSK shall not be
given access to the proprietary
information of other Phase Forward
customers or contracts; Phase Forward
locations that are not related to GSK or
the Services; or (iii) Phase Forward
internal costs. In performing audits, GSK
shall use commercially reasonable
efforts to avoid unnecessary disruption of
Phase Forward operations and
unnecessary interference with Phase Forward
ability to
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perform the Services in accordance with the
Service Levels. Except where GSK has
received from a governmental body a notice
requiring immediate access to the
information requested, such audits shall be
conducted upon reasonable prior
notice and during normal business
hours.
5.5.4. RECORDS
RETENTION. Unless otherwise expressly set
forth in an Exhibit or applicable SOW,
until the later of (i) three (3) years
after expiration or termination of this
Agreement; or (ii) pending matters
relating to the Agreement (e.g., disputes)
are closed. Notwithstanding the
foregoing, this provision does not create
any obligation for Phase Forward to
retain any Trial related information,
including Trial data, after completion of
Services related to a Trial. GSK shall
reimburse Phase Forward for its out-of
pocket expense incurred as a result of the
return of such information.
5.6 TAXES. The
amounts payable to Phase Forward hereunder do not
include, and GSK shall be solely
responsible for the payment of, any sales
and/or use tax, transfer tax, value added
tax, excise tax, tariff, duty or any
other tax or payment in lieu thereof
imposed by any domestic or foreign
governmental authority or agency with
respect to the Software, Support and
Services provided by Phase Forward
hereunder; excluding taxes based upon Phase
Forward's net income or corporate
franchise. GSK has a Direct Pay Certificate
(Certificate No. 00499) with the state of
North Carolina. This Direct Pay
Certificate authorizes GSK to accrue and
pay its North Carolina sales tax
liability directly to the N.C. Department
of Revenue. Accordingly, for items
shipped to North Carolina, Phase Forward
shall not assess North Carolina sales
tax on GSK. Phase Forward's invoices
submitted hereunder shall separately state
the amount of any taxes Phase Forward is
collecting from GSK, if any. For
services subject to Pennsylvania state
sales or use tax, Phase Forward shall
separately state the taxable amount of such
Services, if any, on each invoice.
Phase Forward shall bear all responsibility
and liability for all sales, use,
excise, services, consumption, and other
taxes and duties payable by Phase
Forward on any goods or services used or
consumed by Phase Forward in providing
the Support or Services hereunder where the
tax is imposed on Phase Forward's
acquisition or use of such goods or
services. Phase Forward shall bear all
responsibility and liability for the
payment of all federal, state and local
income taxes due on money received from GSK
hereunder and filing all appropriate
tax returns and other forms with respect
thereto. Phase Forward agrees to
indemnify and hold GSK harmless from and
against any and all such liabilities or
claims relating to the taxes and duties for
which it is responsible hereunder
including, but not limited to, interest
assessed or penalty and reasonable
attorney's fees incurred, arising from
Phase Forward's failure to pay such taxes
or duties, or pay such taxes or duties in a
timely manner.
5.7
COMPENSATION OF EMPLOYEES. Phase Forward shall bear sole
responsibility for payment of compensation
to its personnel providing Support
and Services hereunder. Phase Forward shall
bear sole responsibility for the
payment and reporting of all federal and
state income tax withholding, social
security taxes and unemployment insurance
applicable to such personnel as
employees of Phase Forward. Phase Forward
shall bear sole responsibility for any
health or disability insurance, retirement
benefits or other welfare or pension
benefits, if any, to which such personnel
may be entitled.
6.0 PHASE
FORWARD'S INTELLECTUAL PROPERTY
6.1
ACKNOWLEDGMENT OF RIGHTS. GSK acknowledges that: (i) as
between Phase Forward and GSK, all right,
title and interest in and to the
Deliverables (including any and all
patents, copyrights, trade secret rights,
trademarks, trade names and other
intellectual property rights embodied therein
or associated therewith) are and shall
remain the property of Phase Forward and
its licensors (if any); (ii) this Agreement
in no way conveys any right or
interest in the Deliverables other than the
rights and license to use them set
forth herein; (iii) Phase Forward asserts
that Deliverables are works protected
by the patent and copyright laws of the
United States and by international
treaties; and (iv) Phase Forward asserts
that the Deliverables embody valuable
confidential and secret information of
Phase Forward or its licensors (if any),
the development of which required the
expenditure of considerable time and
money.
6.2 GSK'S
OBLIGATIONS. Except as may be otherwise expressly
authorized herein, GSK shall; (i) not
disclose or provide any Software or
Documentation to any other party; (ii) not
disclose the results of any
benchmarking activity to a third party
other than consultants or others working
for GSK under appropriate confidentiality
agreements; (iii) not alter, reverse
engineer, disassemble, decompile or copy
any Software; (iv) limit access to the
Software to its employees, Contractors and
Investigators who require access in
connection with GSK's use of the Software
as authorized hereunder and who have
agreed in writing or are otherwise legally
bound to observe obligations of
confidentiality with respect to
confidential information belonging to party's
with whom GSK deals; (v) take the same
precautions, including secure storage of
all media containing copies of the
Software, to prevent unauthorized or improper
use or disclosure of the Deliverables that
GSK takes to protect its own
confidential
Phase Forward SLSA 8.7
7
<PAGE>
information of a similar nature; and (v)
not remove from, and reproduce on any
authorized copies of, the Deliverables all
titles, trademarks, trade names, and
copyright, patent and other proprietary or
restrictive legends or notices.
6.3 PHASE
FORWARD'S OBLIGATIONS. Phase Forward acknowledges that
Phase Forward or Phase Forward's authorized
employees and subcontractors may
receive or have access to "GSK Specific
Information" (defined below). Phase
Forward and Phase Forward's authorized
employees and subcontractors shall use
GSK Specific Information solely for the
purposes of this Agreement and for no
other purpose whatsoever. Phase Forward
shall also comply with all applicable
laws, governmental regulations, rules,
requirements, ordinances, and other
requirements of local and state authorities
and the Federal government regarding
GSK Specific Information. For the purposes
of this Agreement, "GSK Specific
Information" means the following
information obtained from or disclosed by GSK:
Information related to Drugs and Healthcare Products and Services.
This
is information that relates to (a) the research, development,
chemical
composition, manufacture, analysis, testing, and utility of
chemicals
being developed or under consideration for use as a
pharmaceutical
drug, and (b) the development and delivery of other (non-drug)
healthcare products and services, including, without
limitation,
technical descriptions of such products and/or services.
(a) Healthcare
Information. This is information, data,
facts, and materials which are used to:
(i)
maintain, facilitate,
cure, improve, or
document a human or animal physiological
condition or state;
(ii)
deliver a service to maintain, facilitate,
cure, improve, or document a human or animal
physiological condition or state; or
(iii)
insure or underwrite the maintenance,
facilitation, cure, improvement, or
documentation of a human or animal
physiological condition or state, and which
uses the information, data, facts, or
materials described in (i) or (ii) above.
(b) Financial
Information of any sort, including, without
limitation, financial information of GSK Entities,
their customers, suppliers, and strategic partners,
including, without limitation, cost information,
sales forecasts, profits or financial results, and
tax audits or reports.
(c) Personnel
Information of any sort; including, without
limitation, human resource, payroll, and benefits
information.
(d)
Statistical Information of any sort.
(e) Business
Plans of any sort, including, business plans
of the GSK Entities, their customers, suppliers, and
strategic partners, including, without limitation,
marketing, operating, organizational, and business
strategic plans, and merger and acquisition
information.
(f) Computer
Software Developed and Used Internally by
GSK.
(g) Computer
Software Licensed from Third Parties.
(h) Corporate
Governance Information, including, without
limitation, board of director meeting minutes and
senior executive correspondence.
(i)
Information Concerning Litigation with a
Third Party, including, without limitation,
product liability information.
(j) Medical
and Personal Information of Third
Parties.
Phase Forward SLSA 8.7
8
<PAGE>
6.4 INJUNCTIVE
RELIEF. Each Party specifically agrees that a
breach by the other Party of its
obligations under this Section 6 may cause the
non-breaching Party irreparable damage for
which remedies other than injunctive
relief may not be adequate, and that in the
event of any such breach
non-breaching Party shall be entitled to
seek an injunction or similar equitable
relief immediately upon request to a court
of competent jurisdiction. Nothing
contained in this Paragraph 6.3 shall be
construed as agreement by either Party
that the other Party is entitled to damages
or to any remedy other than that
expressly provided for by the foregoing, or
by the non-breaching Party that it
is not entitled to damages or to any other
remedies in addition to injunctive
relief.
7.
CONFIDENTIALITY
7.1 GENERAL.
The Parties each acknowledge and agree that in the
course of performance of this Agreement,
they may be exposed to or acquire
information which is proprietary to or
confidential to the other Party, its
Affiliates, and their clients and customers
(including, without limitation, any
information relating to technology,
marketing, product development or business
plans, customers or prospects, trade
secrets and any other information not
generally known to the public). Any and all
of the foregoing information in any
form obtained by the other Party or its,
agents, employees, consultants or
representatives in the performance of this
Agreement shall be deemed to be the
confidential and proprietary information of
such party. The Parties agree to use
reasonable efforts to hold such information
in confidence but not less than
those efforts that the Party receiving such
information uses to protect the
confidentiality of its own confidential
information of a similar nature, and
(except as permitted hereunder) not to
copy, reproduce, sell, assign, license,
market, transfer, give or otherwise
disclose such information to third parties
or to use such information for any purposes
whatsoever, without the express
written permission of the other Party,
other than for the performance of this
Agreement, and to advise each of their
employees, agents and representatives of
their obligations to keep such information
confidential. All such confidential
and proprietary information described
herein and any Deliverable provided
hereunder, in whatever form, are
hereinafter collectively referred to as
"Confidential Information." The Parties
shall use commercially reasonable best
efforts to assist each other in identifying
and preventing any unauthorized use
or disclosure of any Confidential
Information. Without limitation of the
foregoing, the Parties shall use
commercially reasonable best efforts to advise
each other promptly in the event that
either learns or has reason to believe
that any person who has had access to
Confidential Information has violated the
terms of this Agreement, and to cooperate
in seeking injunctive relief against
any such person.
7.2
NON-CONFIDENTIAL INFORMATION. Notwithstanding the obligations
set forth in Paragraph 7.1 above, the
confidentiality obligations of the Parties
shall not extend to information that (i)
is, as of the time of its disclosure,
or thereafter becomes part of the public
domain through no fault of the
receiving party; (ii) was already in the
receiving Party's possession without
restriction on disclosure at the time of
disclosure; (iii) is independently
developed by the receiving party without
use of the other Party's Confidential
Information; (iv) is rightfully obtained
from a third party without restriction
on disclosure; or (v) is required by law to
be disclosed, including but not
limited to disclosures required by the Food
and Drug Administration.
7.3 USE OF
GSK'S NAME. Except for announcements intended solely
for internal distribution within Phase
Forward, or disclosures required by law
or government regulation (including,
without limitation, disclosures required by
the U.S. Securities & Exchange
Commission in connection with Phase Forward's
initial public stock offering, and
thereafter, by Phase Forward as a publicly
traded company), Phase Forward shall not
directly or indirectly publish, approve
or issue any advertising, sales promotion,
press release or public statement
relating to this Agreement or any products
furnished or services performed by
Phase Forward for GSK wherein GSK's name,
trade name, trademark and/or logo is
expressly mentioned or language is used
from which GSK's identity may, in GSK's
reasonable judgment, be inferred or implied
(a "Prohibited Publication"),
without the prior written approval of GSK's
authorized representative, which
approval may be withheld in GSK's absolute
discretion. If, during the term of
this Agreement, Phase Forward makes any
Prohibited Publication available to
third parties without first obtaining GSK's
approval as required hereinabove,
Phase Forward agrees that GSK may
immediately (i) issue at Phase Forward's sole
expense, or have Phase Forward issue with
GSK's prior written approval, a
retraction or correction of such Prohibited
Publication; or (ii) obtain an
injunction or other appropriate equitable
remedy to prevent Phase Forward from
issuing additional Prohibited Publications;
and/or (iii) notwithstanding other
provisions of this Agreement to the
contrary, terminate this Agreement, but not
any licenses granted pursuant to this
Agreement. The remedies set out herein
shall be cumulative with respect to any
other remedies which GSK may have under
this Agreement or otherwise.
Notwithstanding the foregoing, following execution
of this Agreement the parties agree to
issue joint press release, the content of
which is to be approved by both
parties.
Phase Forward SLSA 8.7
9
<PAGE>
8.
LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES
8.1
INTELLECTUAL PROPERTY WARRANTY. Phase Forward represents and
warrants that it owns all intellectual
property rights in the Deliverables, or
has such rights by license from the owner
thereof, necessary for it to grant the
rights and licenses granted to GSK
hereunder, free from and clear of all liens,
encumbrances or other restrictions that are
inconsistent with such grant, and
has the right to enter into this Agreement.
Phase Forward shall indemnify GSK as
provided in Paragraph 9.1(a) against any
claim of a breach of the limited
intellectual property warranty set forth in
this Paragraph 8.1.
8.2 *
WARRANTY. Phase Forward represents and warrants that none of
the Deliverables * . Further, except for
the *, no claim of *. Phase Forward
shall indemnify *.
8.3 WARRANTY
OF CONFORMITY. Phase Forward represents and warrants
for the benefit solely of GSK, that for a
period of ninety (90) days after
Acceptance of the initial Delivery of the
Software (or after Delivery of the
Software, if the Acceptance provisions do
not apply) specified on an Order
Schedule ("Warranty Period"), the Software
shall conform to the Specifications
applicable thereto. Phase Forward makes no
warranty that any Software will
operate uninterrupted or be Error-free. The
warranty set forth in this
Paragraph 8.3 shall not apply to Errors
attributable to (i) use of a Software
other than in accordance its Documentation,
or (ii) which result from
modifications to the Software not done or
authorized by Phase Forward. GSK
acknowledges that Errors may exist or occur
in the Software. Phase Forward shall
promptly either correct such deficiency or
provide GSK with a plan acceptable to
GSK for correcting the deficiency within a
reasonable period of time. If Phase
Forward cannot make a Software operate as
warranted, then Phase Forward shall
refund to GSK all license fees paid for
such Software upon GSK's return of such
non-conforming Software.
8.4 WARRANTY
AGAINST DISABLING DEVICES. Phase Forward represents
and warrants that no "lockout", restraint
or disabling code or devices are
incorporated or present within any Software
at the time the Software is licensed
by Phase Forward to GSK. In no event will
Phase Forward remove, alter, change or
interfere with any Software for purposes of
preventing GSK other parties so
permitted under this Agreement from using a
Software, as the result of any
dispute under this Agreement. Phase Forward
will not, prior to such licensing or
thereafter during the term of this license
or any license for an upgraded or
modified version of any Software, modify
any Software to restrict its use by GSK
or other parties so permitted under this
Agreement to, without limitation,
particular CPU's, required passwords,
periods of time, or other restrictions,
without the prior written agreement of GSK.
Notwithstanding the foregoing, GSK
acknowledges that Phase Forward may be
compelled to implement security or
similar measures in response to a
regulation or directive of a governmental body
having regulatory authority over the
Software or Services and agrees to accept
and cooperate with any such required
measures. Phase Forward agrees to provide
GSK with written notice of its obligation
in respect of such measures prior to
their implementation.
8.5 PHASE
FORWARD FURTHER REPRESENTS AND WARRANTS THAT:
8.5.1 It
has no outstanding agreement or obligation which
is in conflict with any of the provisions
of this Agreement, or that would
preclude Phase Forward and its
subcontractors from complying with the provisions
hereof and further certifies that it will
not enter into any such conflicting
agreement during the term of this
Agreement.
8.5.2 All
Services shall be performed under this Agreement
in a workmanlike manner and with
professional diligence and skill and shall
conform in all material respects with the
performance specifications set forth
herein or in an Order Schedule.
8.5.3 To
the best of its knowledge, (i) there are no GSK
employees with significant fiduciary
interest in it or its affiliates, (ii) no
GSK employees serve as officers,
shareholders, directors, consultants or
employees of Phase Forward and/or its
affiliates, and (iii) no GSK employees are
compensated by or act on Phase Forward's or
its affiliates' behalf, nor are
related by blood or marriage to any of
Phase Forward's and/or its affiliates'
officers which have contractual authority
to legally bind Phase Forward and/or
its affiliates. In the event that such
conflict exists or arises, Phase Forward
agrees to make full and effective
disclosure to GSK.
Phase Forward SLSA 8.7
10
<PAGE>
8.5.4 It
has not provided any form of compensation or
remuneration to any GSK employee regarding
the issuance of this Agreement, Order
Schedules related thereto and/or GSK's
commercial relationship with Phase
Forward and/or its affiliates.
8.5.5 It
is not currently debarred, suspended or otherwise
excluded by the U.S. Government or an
agency thereof from receiving federal
contracts. Phase Forward certifies by
accepting this Agreement or any part
thereof that any subcontractor assigned to
perform services under this Agreement
is not debarred, suspended or proposed for
debarment by the U.S. Government.
Debarment, suspension or proposed debarment
by the U.S. Government will
constitute grounds for automatic
termination of this Agreement by GSK.
8.6 DISCLAIMER
OF OTHER WARRANTIES. THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT ARE
IN LIEU OF ALL OTHER REPRESENTATIONS
AND WARRANTIES AND PHASE FORWARD HEREBY
DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW OR
OTHERWISE, REGARDING OR RELATING TO THE
SERVICES OR DELIVERABLES FURNISHED TO
GSK HEREUNDER OR IN CONNECTION HEREWITH.
PHASE FORWARD SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES INCLUDING, WITHOUT
LIMITATION, THOSE OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. THERE
IS NO REPRESENTATION OR OTHER
AFFIRMATION OF FACT BY PHASE FORWARD WHICH
IS NOT CONTAINED IN THIS AGREEMENT.
9.
INDEMNIFICATION
9.1
INDEMNIFICATION BY PHASE FORWARD
9.1.1
BREACH OF INTELLECTUAL PROPERTY WARRANTY. Phase
Forward agrees, at its sole expense, to
defend, indemnify, and hold GSK and its
directors, officers, employees and agents
(including successors and assigns)
harmless from and against any and all costs
and liabilities in connection with
any third party claim, suit or action
(collectively, a "Claim") for infringement
of patents, copyrights or other proprietary
rights associated with any
Deliverable, Support or Service, or its
intended use. Phase Forward's
obligations under this Paragraph 9.1.1 are
conditioned upon GSK's agreement that
if any Deliverable, or the use or operation
thereof, becomes, or in Phase
Forward's reasonable opinion is likely to
become the subject of a Claim, Phase
Forward may, at its sole expense, (i)
procure for GSK the right to continue
using the infringing Deliverable, Support,
or Service, or at its option, (ii)
modify the infringing Deliverable, Support
or Service so that the same becomes
non-infringing (provided such replacement
or modification does not materially or
adversely affect GSK's intended use of such
Deliverable, Support or Service as
contemplated hereunder), or (iii) replace
the infringing Deliverable, Support or
Service with software, support or service,
as applicable, that is non-infringing
and functionally equivalent to the
infringing Deliverable, Support or Service.
Any such replacement Deliverable, Support
or Services shall be subject to all of
the acceptance, warranties and the other
terms and conditions of this Agreement
including, without limitation, the
foregoing indemnification provisions and the
representations and warranties set forth in
Paragraph 8 above. If none of the
foregoing alternatives is available on
commercially reasonable terms, GSK will
return such Deliverable or discontinue
using the Support or Service on written
request by Phase Forward and Phase Forward
will, at GSK's option, either credit
or refund to GSK that portion of the
license fees paid for such Deliverable or
Service under the applicable Order Schedule
as follows:
<TABLE>
<S>
<C>
(a) In the * of the applicable Order
Schedule or Statement of Work:
*% of total fees paid.
(b) In the * of the applicable Order
Schedule or Statement of Work:
*% of total fees paid.
(c) In the * of the applicable Order
Schedule or Statement of Work:
*% of total fees paid.
(d) In the * of the applicable Order
Schedule or Statement or Work:
*% total fees paid.
(e) In the * of the applicable Order
Schedule or Statement of Work:
*% of total fees paid.
</TABLE>
In the event there is an Order Schedule or
Statement of Work for a term longer
than *, and the claim occurs after the * of
the contract term (and the
infringement cannot be resolved or
eliminated using one of the remedies set
forth in clauses (i) through (iii) above)
or , GSK will return the infringing
Deliverable or discontinue using the
infringing Support or Service upon the
written request by Phase Forward and there
will be no refund of fees previously
paid.
Phase Forward SLSA 8.7
11
<PAGE>
If, as a result of GSK being required to
cease using the infringing Deliverables
or discontinue using the infringing Support
or Service on written request by
Phase Forward under this Paragraph 9.1, GSK
is required to transfer clinical
data from computer systems that used such
Deliverables, Product or Service,
Phase Forward will promptly cooperate with
and provide reasonable assistance to
GSK in connection with such transfer.
In the event that * obtains * against Phase
Forward or GSK * in accordance with
this Agreement, then GSK may, as an
alternative to the remedies set forth in
clauses (i) through (iii) above, at its
option, * in accordance with this
Agreement. In such event, GSK will receive
a credit equal to * for the right to
* in accordance with this Agreement against
license fees due to Phase Forward *
under this Agreement. Notwithstanding the
foregoing, GSK may not * that would
result in Phase Forward being liable for
any costs, liabilities or damages as a
result of *. The foregoing provision in
this paragraph sets forth Phase
Forward's entire liability to GSK for * in
accordance with this paragraph.
Phase Forward shall have no liability for
any claim or action based upon (i) the
combination, operation or use of any
Deliverable, Support or Service with
equipment, software or data not supplied or
specified as being compatible with
or approved in writing by Phase Forward, or
(ii) a modification of any
Deliverable that is not performed or
authorized by Phase Forward. The foregoing
states the entire liability of Phase
Forward with respect to any claim of
infringement.
9.1.2
INCOME TAXES, COMPENSATION AND INSURANCE. Phase
Forward shall indemnify and hold GSK and
its directors, officers, employees,
agents and administrators of GSK's benefit
plans (including successors and
assigns) harmless against from and against
any third party claims, liabilities
or expenses (collectively, a "Claim")
arising out of or related to Phase
Forward's failure to meet its obligations
under Paragraphs 5.6 and 5.7.
9.1.3
PERSONAL INJURY AND PROPERTY DAMAGES. Phase Forward
shall indemnify and hold GSK and its
directors, officers, employees and agents
(including successors and assigns) harmless
from and against all claims,
demands, proceedings, damages, costs,
charges and expenses (including without
limitation reasonable attorney's fees)
whatsoever (collectively, a "Claim") in
respect of injury (including death) to any
persons or loss or damage to any real
or tangible property which may arise out of
the negligent act or omission or
intentional wrongdoing of Phase Forward,
its subcontractors, employees or agents
in the performance of its obligations under
this Agreement, provided that Phase
Forward shall not be liable for nor be
required to indemnify GSK in regard to
any injury, loss or damage to the extent
that such injury, loss or damage is
caused by any negligent act or omission or
intentional wrongdoing on the part of
GSK, its employees or agents.
9.1.4
FRAUD. Phase Forward shall indemnify and hold GSK and
its directors, officers, employees and
agents (including successors and assigns)
harmless from and against all loss (a
"Claim") resulting from any acts of fraud
or, embezzlement committed by Phase
Forward, its employees, subcontractors or
agents, acting alone or in collusion with
another party, in the performance of
Phase Forward's obligations hereunder. The
absence of insurance shall not
diminish Phase Forward's responsibility to
indemnify GSK.
9.2
INDEMNIFICATION BY GSK REGARDING INVESTIGATIONAL PRODUCTS. GSK
shall indemnify and hold Phase Forward and
its directors, officers, employees
and agents (including successors and
assigns) harmless against any claim or
action by any third party and resulting
costs, damages, expenses (including
reasonable attorneys' fees) and liabilities
(collectively, a "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 an Investigational
Product for which any Software was used and
(ii) any product derived from or
based on such clinical trial or
Investigational Product.
9.3 CONDITIONS
OF INDEMNIFICATION. The indemnification provisions
of Paragraphs 9.1 and 9.2 above shall be
conditioned upon the indemnified party
providing written notice to the
indemnifying party of any Claim within a
reasonable period of time after becoming
aware of such Claim, furnishing such
information and cooperation as the
indemnifying party may reasonably require in
the investigation, defense and/or
resolution of such Claim at the indemnifying
party's sole expense,
Phase Forward SLSA 8.7
12
<PAGE>
and giving complete control of the defense
and all related settlement
negotiations to the indemnifying party,
although the indemnified party may be
represented by separate advisory counsel at
its own expense.
10. LIMITATION
OF LIABILITY
10.1
LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION
OBLIGATIONS OF THE PARTIES SET FORTH IN
THIS AGREEMENT AND CLAIMS FOR LOSSES AND
DAMAGES ARISING OUT OF EITHER PARTY'S
BREACH OF ITS OBLIGATIONS OF
CONFIDENTIALITY UNDER PARAGRAPH 7.1 ABOVE,
NEITHER OF WHICH SHALL BE LIMITED BY
THIS SECTION 10, AND REGARDLESS OF THE FORM
OF ACTION (WHETHER IN CONTRACT,
TORT, BREACH OF WARRANTY OR OTHERWISE),
PHASE FORWARD'S LIABILITY FOR DAMAGES
HEREUNDER SHALL BE LIMITED TO ACTUAL DIRECT
MONEY DAMAGES CAUSED BY THE SERVICE
OR DELIVERABLE COMPLAINED OF AND SHALL NOT
EXCEED THE AMOUNTS DUE AND PAYABLE,
OR PAID, TO PHASE FORWARD UNDER THE TERMS
OF THE APPLICABLE ORDER SCHEDULE OR
STATEMENT OF WORK AS OF THE DATE THE CLAIM
AROSE. NEITHER PARTY SHALL BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
SPECIAL OR INDIRECT DAMAGES (INCLUDING
BUT NOT LIMITED TO LOST BUSINESS PROFITS,
REVENUE, GOODWILL, SHAREHOLDER
CONFIDENCE AND LOSS, DAMAGE OR DESTRUCTION
OF DATA) EVEN IF THE PARTY SOUGHT TO
BE HELD LIABLE FOR SUCH DAMAGES HAS BEEN
ADVISED OF THE POSSIBILITY OF THE SAME.
NO LIMITATION AS TO DAMAGES FOR PERSONAL
INJURY IS HEREBY INTENDED. SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES
UNDER CERTAIN CIRCUMSTANCES AND THE ABOVE
EXCLUSION OR LIMITATION MAY NOT APPLY.
10.2
EFFECT OF PROVISIONS. Each provision of this Agreement which
provides for a limitation of liability,
disclaimer of warranties or exclusion of
damages, is intended by the Parties to be
severable and independent of any other
such provision and to be enforced as such.
If any limited remedy provided herein
is determined to have failed of its
essential purpose, all limitations of
liability and exclusions of damages set
forth herein shall nonetheless remain in
effect.
11.
INSURANCE
11.1
INSURANCE. Without limiting its responsibilities under
Sections 8 and 9 (Limited Warranties and
Disclaimers of Warranties;
Indemnification), Phase Forward shall
maintain in force at all times during the
Term of this Agreement with insurance
companies having an A.M. Best rating of A
or better, the following insurance and
shall, prior to signing this Agreement,
provide to GSK certificates of insurance
for each type of insurance specifying
that GSK will receive no less than (30)
days' prior written notice of
cancellation, non-renewal or material
change, except where 30 days' notice is
impractical, in which case notice will be
provided as promptly as reasonably
practicable prior to cancellation,
non-renewal or material change.
11.1.1
EMPLOYER'S LIABILITY INSURANCE AND WORKERS'
COMPENSATION INSURANCE, in accordance with
the laws of the country, state or
territory exercising jurisdiction over the
employee with minimum limits per
employee and per event of $1,000,000.
11.1.2
COMMERCIAL GENERAL LIABILITY: Commercial General
Liability Insurance for the sum of not less
than $1,000,000 for any one
occurrence and $2,000,000 in the aggregate
annually.
11.1.3 PROPERTY
INSURANCE coverage, for all risks of
physical loss of or damage to buildings
property that is owned by Phase Forward.
11.1.4
AUTOMOTIVE LIABILITY INSURANCE with a minimum
combined single limit per accident of
$1,000,000,
coverage for Employee Dishonesty for loss
or damage arising out of or in
connection with any fraudulent or dishonest
acts committed by the employees of
Phase Forward, acting alone or in collusion
with others, including the property
and funds of others in their possession,
care, custody or control, with a
minimum limit per event of $75,000.
Phase Forward SLSA 8.7
13
<PAGE>
11.1.6 ERRORS
AND OMISSIONS LIABILITY INSURANCE with a
minimum limit per event of $10,000,000.
11.1.7 UMBRELLA
LIABILITY INSURANCE with a minimum limit of
$10,000,000 in excess of the insurance
coverage described in Paragraphs 11.1.1
and 11.1.2.
11.1.8 TERMS OF
COVERAGE. The insurance coverage required
under Paragraphs 11.1.1 through 11.1.6
shall be primary, and all such coverage
shall be non-contributing with respect to
any other insurance or self insurance
which may be maintained by GSK. All
coverage required by this Section 11 shall
include a waiver of subrogation and a
waiver of any insured-versus-insured
exclusion regarding GSK. To the extent any
coverage is written on a claims-made
basis, it shall have a retroactive date
prior to the Effective Date and shall
allow for reporting of claims for at least
one (1) year after the Term. The
maintenance of such insurance is the sole
responsibility of Phase Forward, and
GSK will not be required to bear any of the
cost thereof. Phase Forward shall
submit Certificates of Insurance evidencing
the coverage required herein upon
execution of the Agr
