Terms and Conditions to the Master Subscription and Services Agreement
These TERMS AND CONDITIONS are incorporated by reference into the MASTER SUBSCRIPTION AND SERVICES AGREEMENT (“Agreement”) executed between your company (“Customer”) and IQVIA Inc., formerly Pilgrim Quality Solutions, Inc. (“Pilgrim” or "IQVIA") or Pilgrim Quality Solutions EMEA BV, as listed on the Agreement. Pilgrim and Customer, intending to be legally bound, hereby agree as follows:
1.1. "Customer Data" means all electronic data or information submitted by Customer to the Pilgrim Servers.
1.2. “Managed IT Service” means the IT administration of Pilgrim’s Software and database including User administration at the Operating System level, patches and upgrades.
1.3. “Pilgrim Servers” means the computer hardware servers controlled and/or owned by Pilgrim.
1.4. “Schedule” shall mean and refer to mutually executed document(s) referencing this Agreement and setting forth and specifying any Software to be furnished and/or Service(s) to be performed by Pilgrim and to be paid for by Customer.
1.5. “Software” means the SmartSolve® software, help files, user manuals, and any other software or materials related to the SmartSolve software package, as listed on an applicable Schedule.
1.6. “Environment” means a copy of the application and its related database, (production, QA and test are examples of environment), provided to the Customer under this Agreement.
1.7. “Service” means the on-line Software application provided by Pilgrim as set forth in the applicable Schedule.
2. PROVISION OF SERVICES.
2.1. Additional Users. If Customer desires to acquire additional Users, unless otherwise specified in the relevant Schedule (i) the term of the additional User subscriptions, as applicable, shall be coterminous with the expiration of the then current Subscription Period; and (ii) pricing for the additional User subscriptions shall be at Pilgrim’s then current User prices, prorated for the remainder of the then current Subscription Period.
2.2. Restrictions. During the Subscription Period, Customer shall be entitled to use the Service for Customer's internal business needs only as contemplated by this Agreement and shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party, other than as contemplated by this Agreement; (ii) modify, copy or create derivative works based on the Service, Managed IT Service or Software; (iii) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Software, other than on Customer's own intranets or otherwise for its own internal business purposes; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) disassemble, reverse engineer, or decompile the Software for any reason whatsoever. In addition, Customer may only use the software (for example, SmartSolve Business Intelligence) with SmartSolve quality data only.
2.3. Pilgrim Responsibilities. Pilgrim shall use commercially reason-able efforts to: (i) maintain the security and integrity of the Service and the Customer Data; (ii) provide standard support as set forth in Exhibit A; and (iii) make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Pilgrim shall use commercially reasonable efforts to give at least 8 hours’ notice and which Pilgrim shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST Friday to 3:00 a.m. EST Monday); or (b) any unavailability caused by circumstances beyond Pilgrim's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Pilgrim's possession or reasonable control, and net-work intrusions or denial of service attacks.
2.4. Services Levels. If Customer is unable to transmit or receive in-formation from Pilgrim Servers to other portions of the Internet because Pilgrim failed to maintain as operational the Pilgrim Servers for less than a cumulative of (a) 99.50% for any calendar month (based on an average 30-day month), Pilgrim will add one (1) additional day of service to Customer’s access. Pilgrim’s scheduled maintenance of the Pilgrim Servers shall not be deemed to be a failure of Pilgrim to provide Pilgrim Servers; or (b) 99.00% for any calendar month (based on an average 30-day month), Pilgrim will add two (2) additional days of service to Customer’s access; or (c) 98.50% for any calendar month (based on an average 30-day month), Pilgrim will add three (3) additional day of service to Customer’s access. Pilgrim’s scheduled maintenance of the Pilgrim Servers shall not be deemed to be a failure of Pilgrim to provide Pilgrim Servers. The credits described in this Section shall be Customer's exclusive remedy and Pilgrim sole liability for any unavailability of the Pilgrim Servers. Customer shall be entitled to receive only the maximum single credit available for such event.
2.5. Client’s Obligations. To the extent (if any) that Client provides to IQVIA personally identifiable information (“PII”) in the course of receiving Services, Client will comply with the data privacy laws applicable to its provision or receipt of such PII. In providing PII, Client is responsible for providing, obtaining and maintaining any notices, consents or approvals necessary to make such information available to IQVIA for processing and use. Client acknowledges that IQVIA has no control over the type, quantity or origin of the data to be entered into the system by Client. As between IQVIA and Client, all Client Data is owned exclusively by Client. IQVIA may access Client's User accounts, including Client Data, solely to respond to service or technical problems or at Client's request. Client agrees that IQVIA will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Client data. Client acknowledges that IQVIA has no control over Client's Data, the operation of that Data, or the effect such Data will have on Client's systems. Client acknowledges that it is solely responsible for any consequences of the operation and use of Client Data and assumes all risk associated with such operation, and furthermore Client agrees that IQVIA shall have no responsibility and no liability to Client for any loss or damage in any way caused or associated with the operation of Client Data. Client is responsible for all activities that occur under Client's User accounts. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; and (iii) comply with all applicable local, state, federal, and foreign laws (if accessing the Service from outside of the United States) and not use the Service in a manner that would violate any federal or state laws of the United States if conducted therein. Client shall identify all users who will receive passwords to access the Service (“Permitted Users”), shall provide to IQVIA a list of such Permitted Users, and shall provide periodic updates as necessary. Client will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, each password, including entering into appropriate agreements with its Permitted Users. Client will immediately notify IQVIA in writing if Client determines, or has reason to believe, that an unauthorized party has gained access to a password. Use of the assigned password or key, whether or not authorized by Client, shall be solely the responsibility of and the risk of Client. Client shall indemnify, defend, and hold harmless IQVIA from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of Client's passwords and keys or Client’s violation of any applicable law. Client expressly permits IQVIA to subcontract and / or sub-delegate certain services related to the SaaS Service (ie. hosting facility and managed IT services) to third parties or third party affiliates. In addition, Client may only use the software (for example, SmartSolve Business Intelligence) with SmartSolve quality data only.
2.6. Validation. Pilgrim will provide Customer with the following validation services:
2.6.1. Installation Qualification (IQ): Pilgrim will provide Customer access to an installed environment that has been set up using previously validated templates. These templates have been validated using Pilgrim’s standard installation qualification (IQ) process. Pilgrim maintains the IQ documentation using its standard IQ templates in its archives. On request, Pilgrim will provide Customer a letter/certificate that Pilgrim has installed an application template that has been IQ’d by Pilgrim. Any detailed IQ validation documentation that Pilgrim maintains can be reviewed by customer as required. If Customer requires additional IQ services, Pilgrim will use commercially reasonable judgment to review and approve such requests. If such a request is approved, Customer will pay for such services at Pilgrim’s then current standard rates. If Customer must produce to any third party auditor a copy of Pilgrim-produced detailed IQ documentation, Pilgrim will, upon reasonable advance written notice, provide a copy of such documentation with certain portions redacted. The IQ documentation in Pilgrim’s hosted environment contains information that is private, confidential and/or proprietary, the disclosure of which would compromise the security of the infrastructure and thus such portions of the documentation will be redacted by Pilgrim prior to submission to Customer. Customer agrees that such supplied documentation will be used for the sole purpose of fulfilling the audit related obligations. Once such obligations are completed, Customer will promptly destroy the documentation. Furthermore, Customer may, upon reasonable notice to Pilgrim, audit Pilgrim’s protocol and methodology, including documentation, regarding the Pilgrim IQ in its Environment. Customer understands that if changes are made to the Environment either by Customer or Pilgrim at Customer’s request, the IQ certificate may no longer be valid.
2.6.3. Performance Qualification (PQ): This activity will be performed by the Customer, at its sole expense and shall be its sole responsibility unless the parties mutually agree that Pilgrim will perform such services at Pilgrim’s then current rates.
2.6.2. Operational Qualification (OQ): Pilgrim will provide Customer access to an installed environment that has been set up using previously validated templates. These templates have been validated using Pilgrim’s standard operational qualification (OQ) process. Pilgrim maintains the OQ documentation using its standard OQ templates in its archives. On request, Pilgrim will provide Customer a letter/certificate that Pilgrim has installed a database template that has been OQ’d by Pilgrim. Any detailed OQ validation documentation that Pilgrim maintains can be reviewed by customer as required. If Customer requires additional OQ services or changes to the standard Pilgrim OQ templates and protocol, Pilgrim will use commercially reasonable judgment to review and approve such requests. If such a request is approved, Customer will pay for such services at Pilgrim’s then current standard rates. If Customer must produce to any third party auditor a copy of Pilgrim-produced detailed OQ documentation, Pilgrim will, upon reasonable advance written notice, provide a copy of such documentation. Customer agrees that such supplied documentation will be used for the sole purpose of fulfilling the audit related obligations. Once such obligations are completed, Customer will promptly destroy the documentation. Furthermore, Customer may, upon reasonable notice to Pilgrim, audit Pilgrim’s protocol and methodology, including documentation, regarding the Pilgrim OQ in its Environment.
2.7. Use. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
2.8. Data Backup and Restoration. Client will receive storage space set forth on the applicable Schedule. IQVIA will use commercially reasonable efforts to create and protect back-up copies of Client Data. IQVIA will set up a disaster recovery site where it will back up data in IQVIA’s preset time increments. IQVIA will also update periodically the application server residing at the disaster recovery site with the latest configurations as present in the production environment. If the primary site experiences catastrophic failure, the disaster recovery site will be activated as quickly as commercially practicable (IQVIA Recovery Point Objective (RPO) – 4 hours and IQVIA Recovery Time Objective (RTO) – 8 hours). Client understands that the disaster recovery site may not be relied upon as a production class environment but should permit Client to operate in a limited capacity while the primary production environment is undergoing investigation and repair. IQVIA shall have no liability or duty of indemnification related to lost or corrupt data, except to the extent that such loss or corruption is caused by IQVIA, in which case IQVIA shall restore Client’s data to the last viable backup at no cost to Client. This limitation of liability eliminates any duty or liability on the part of IQVIA related to lost or corrupt Client Data resulting in part or in whole from third-party software or networking goods or services or from actions or events outside of its control. IQVIA’s liability to Client under this Section is to provide Client with the last viable backup at no additional charge to Client. IQVIA will back up the files within a predetermined eight (8) hour window during each seven (7) day period (the “Backup Period”). Snapshots of the backup will be retained for at least fourteen (14) days after which, IQVIA may, at its option, destroy the stored backup files. Unless otherwise designated, stored backup files will be retained in a geographically separate location from the primary hosting facility. IQVIA will conduct monthly test restore procedures in its hosted environment. IQVIA will conduct at least one (1) backup restore test on the Client environment each year. Client may acquire copies of such stored files upon request, and at IQVIA’s then current standard charges. Client agrees that IQVIA will not be in breach of this Agreement if its failure to provide the Services is due to scheduled down-time scheduled seven (7) days in advance for backup and restore utility maintenance, network and utility outages, and other force majeure events set forth in this Agreement. Client expressly grants IQVIA and IQVIA’s third party service providers, for the purpose of providing data backup and restoration services, other service and maintenance under this Agreement, the right to access, reproduce and use the Client data. In the event that IQVIA’s relationship with its current hosting facility terminates, IQVIA will use commercially reasonable efforts to move Client’s solution and Client Data to a reasonably similar hosting facility with the least amount of interruption to the Client. Unless otherwise expressly set forth in an SOW, IQVIA’s hosting facilities, maintenance, support and managed services staff are located in the United States or other countries. The data backup and restoration services herein are not intended by IQVIA to be Client’s comprehensive disaster recovery solution.
3.1. During the Subscription Period and subject to Customer’s compliance with the terms of this Agreement, Pilgrim will use commercially reasonable efforts to provide Customer the Service in accordance with Exhibit A, attached hereto. Pilgrim retains the right to create for-charge add-ons, which shall not be included in the Support herein. The maintenance and technical assistance provided hereunder are provided “AS IS” and are without warranty of any kind. Pilgrim will endeavor to provide resolutions to questions within a reasonable time. Customer acknowledges and understands that no software is perfect or error free, and that despite its commercially reasonable efforts, Pilgrim may be unable to provide answers to or resolve some or all requests for Support. If Pilgrim agrees to remedy any errors or problems not covered by the terms of this Agreement, Pilgrim may perform such work at its then-current standard time and material rates. Pilgrim has the right to use and treat as non-confidential any information Customer may give Pilgrim during its use of Pilgrim’s support program unless Customer specifies in writing the fact that certain material should be treated as being confidential.
4. CONSULTING SERVICES.
4.1. Consulting Services. If Consulting Services are to be performed, Pilgrim will perform the Consulting Services and Customer will pay Pilgrim the Consulting Services fees set forth on the attached Schedule(s).
4.2. Limited Services Warranty. Pilgrim represents and warrants to Customer that all Consulting Services provided hereunder will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer acknowledges that Pilgrim is relying upon information and assistance furnished by Customer; and, as a result, the accuracy and results of such Consulting Services will be dependent upon the accuracy and completeness of the information and assistance furnished by Customer.
5. INVOICING AND PAYMENT.
5.1. Consulting Services. Pilgrim shall be compensated for all Consulting Services performed and expenses incurred by Pilgrim, it’s employees, agents or subcontractors, net thirty (30) days from date of invoice at the rates set forth in each such Schedule. Terms regarding Consulting Services and Pilgrim’s travel and living expenses, are set forth in Exhibit B,, attached hereto and made a part hereof.
EXHIBIT A SOFTWARE SUPPORTS
Customer understands and consents to Pilgrim access from the United States to perform certain maintenance and services under this Agreement.
1. Unlimited Contact with the Technical Support Department is available for Customer through telephone, email for status updates only, Internet during the following times: Monday through Friday 8:30 a.m. to 7:30 p.m. (EST) (except for Pilgrim holidays) (The “Standard Support Hours”). Pilgrim holidays are, as observed in the United States, New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, Christmas Eve Day and Christmas Day.
2. Infrastructure Support. The infrastructure will be supported and monitored on a 24 x7 basis.
3. Upgrades/New Release, Service Packs and Patches of the Software. Pilgrim will perform the technical (platform) upgrade by applying any upgrades, service packs, patches, and hot fixes to correct functionality or enhance performance (“Updates”) to Service. This Support does not include implementation of new features/functionality, which Pilgrim may provide at then current Consulting Services rates. Pilgrim will notify Customer of update availability and scheduled down-time maintenance. Pilgrim will support and maintain the software in accordance with its then current life cycle support policy. Upon request by Customer to delay application of certain Updates, Pilgrim may, at its sole option, agree to delay such application for a limited time for additional charges as mutually agreed.
4. Web Access On-Line Support System allows Customer to access its existing technical support records that are being maintained by Pilgrim, including all open calls, and the current status of calls. Customer may also submit new problem statements to the Technical Support Department.
B. TECHNICAL SUPPORT:
1. Addresses Software and Managed IT Services related technical issues such as user login problems, error messages, report problems, database errors, system errors, corrupted files, system functionality, bugs and feature requests.
2. Does not answer questions resulting from a lack of training and/or implementation knowledge, including how the system can be implemented and used, how to create a document, and how to create an initial setup.
3. Does not address questions related to third-party products such as Crystal Reports.
4. The Technical Support Department allows each Customer to select two (2) primary designated Points of Contact (POC) per site for requesting assistance. All questions generated by Customer must be routed through the appropriate POC before being sent to Pilgrim. The Technical Support Department will only respond to the POC on issues, whether new or existing. When requesting Technical Support by telephone, Customer should be located at the PC workstation where the problem has occurred; if the problem is network-wide, Customer may be at any PC.
5. The Technical Support Department will make commercially reasonable efforts to respond to telephone inquiries as follows:
"Response Time" is the time from which Licensee places the telephone call until Licensor's Technical Support personnel calls back.
EXHIBIT B CONSULTING SERVICES TERMS AND CONDITIONS
Time and Materials (“T&M”) Services:
a. Unless expressly set forth in a relevant Schedule, all Services quoted are estimates and will be invoiced on a time and materials basis.
b. Pilgrim shall submit invoices iteratively for Services rendered.
c. A “Man-Day” is an eight (8) hour per person workday, Monday through Friday, on or off-site, excluding Pilgrim holidays.
d. All services are billed at the actual hours incurred based on the consultant service level rates as set forth in the relevant Schedule, subject to subsections (e) through (i) below.
e. Customer shall pay fifty percent (50%) of Pilgrim’s travel time at Pilgrim’s standard daily rate for travel time when a Pilgrim consultants travel to and from Customer’s site.
f. Customer will be billed travel time when a Pilgrim consultant travels to and from Customer’s site; Billing rates are determined by travel time based on regional location and level of consultant as set forth in the relevant Schedule.
g. Customer will be billed for a minimum of eight (8) hours per day for services performed at Customer’s site and such services in excess of eight (8) hours per day will be billed in increments of one (1) hour.
h. Services performed off Customer’s site (including but not limited to the preparation of e-mails and research related to responses to customer requirements) will be billed in increments of fifteen (15) minutes. The Parties agree to work together to permit Pilgrim to schedule and perform multiple consecutive days of service at the Customer’s site.
i. When Pilgrim consultants must travel to Customer’s site to perform services, Customer will be billed for a minimum of two (2) 8-hour Man-Days of service, except when services are to be performed at a Customer site reasonably local to Pilgrim’s facilities.
j. If service is requested by Customer and approved by Pilgrim for performance during a weekend, such service will be billed at one and one half (1 ½) times Pilgrim’s then-standard rate. If service is requested by Customer and approved by Pilgrim for performance during a Pilgrim holiday, such service will be billed at two (2) times the then-standard Pilgrim service rate.
Travel and Living Expenses:
a. Services costs do not include out-of-pocket costs for actual reasonable travel (including but not limited to air and cab fare, lodging, auto rental and per diem).
b. Pilgrim shall use commercially reasonable efforts to obtain transportation, hotel costs and meals at reasonable rates and shall only bill at actual costs.
c. If Customer cancels or causes a change in travel plans for a Pilgrim employee less than seven (7) days prior to the scheduled date, then Customer shall be assessed for the daily billing rate of the scheduled employee if the employee cannot be re-scheduled for another assignment for the same time period.
d. If Customer cancels or causes a change in travel plans for a Pilgrim employee and tickets have already been purchased, Customer shall be assessed the cancellation charges by the transportation company, and all non-refundable expenditures will be billed to the Customer.
e. Customer shall reimburse Pilgrim for all travel expenses incurred net thirty (30) days from date of invoice.