Rxpedite Acorda Marketing Services Agreement

Exhibit 10.17


Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality. Such omitted portions, which are marked with brackets [ ] and an asterisk*, have been separately filed with the Commission.


RXPEDITE ACORDA MARKETING SERVICES AGREEMENT


This Marketing Services Agreement (the "Agreement") is made effective as of September 19, 2003 (the "Effective Date"), by and between Creative Healthcare Solutions, LLC, an Ohio limited liability corporation with offices at 500 Olde Worthington Road, Westerville, Ohio 43082 ("CHS") and Acorda Therapeutics, Inc., a Delaware corporation having its principal place of business at 15 Skyline Drive, Hawthorne, New York 10532 ("Client").


Background Information


A. CHS is a subsidiary of inChord Communications, Inc. ("inChord") specializing in strategic consulting and advertising services (through its "Palio" division). CHS will serve as inChord's lead contact in connection with this Agreement with Client. Certain of the Services to be performed hereunder will be provided by other CHS affiliates, including without limitation Blue Diesel, LLC (interactive applications and website development); Y Brand Outlook, LLC (branding services); and Health Process Management, LLC (data analytics).


B. inChord and Cardinal Health 401, Inc. ("Cardinal Health") have together developed the RxPedite Program, pursuant to which they are able to provide pharmaceutical drug manufacturers with comprehensive outsourced marketing communications, selling and distribution/manufacturing capabilities to facilitate and enhance the commercialization of clients' pharmaceutical products.


C. Client is currently developing a product known as Fampridine SR, a therapy to improve neurological function in spinal cord injuries (the "Product"), and wishes to outsource certain commercialization services available under the RxPedite Program, as set forth in this Agreement.


Statement of Agreement


The parties hereby acknowledge the accuracy of the Background Information and agree as follows:


a71. Appointment/Exclusivity .


(a) CHS will provide marketing communications services to Client with respect to the Product as may be requested from time-to-time by Client and agreed to by CHS (collectively, the "Services"), which may include strategic consulting, advertising, promotion, contract marketing, market research, interactive applications and website development, data analytics, branding, and relationship marketing. For clarity, booking sales of the Product will not be included in the Services to be provided by CHS hereunder, and Client will be solely responsible for booking all sales of the Product. Client hereby appoints CHS as the exclusive "Agency of Record" for marketing communications services relating to the Product and agrees that during the Term (as defined in Section 14(a)) it will not grant any other person or entity


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marketing communications rights to the Product anywhere in the United States; subject, however, to Section 1(b) below.


(b) The parties acknowledge and agree that, notwithstanding any other provision of this Agreement, Client may enter into one or more collaboration or partnership agreements or other similar arrangements with third parties (exclusive of third party marketing services organizations) during the Term with respect to the development and commercialization of the Product (each, a "Partnering Agreement"). In any such event, Client will exercise reasonable efforts to cause CHS to be selected as the vendor of choice for all or substantially all Services with respect to the Product, to the extent that such Services are outsourced. If CHS is selected as the vendor for all or any portion of such Services, the parties will, if necessary, modify any then-current Workplans (as defined in Section 3(a)) including the Budgets therein, to reflect the modified Services as a result of such Partnering Agreement. If, as a result of a Partnering Agreement and despite the exercise by Client of reasonable efforts to cause CHS to be selected as the vendor of choice, CHS is not selected to be the vendor of a substantial portion of the Services with respect to the Product in the United States, then CHS will no longer be the Agency of Record for Services relating to the Product, and either party may terminate this Agreement in accordance with the provisions of Sections 14(d) and 14(f).


a72. Services .


(a) CHS will, from time-to-time and/or upon request by Client during the Term, prepare and provide to Client one or more proposed workplans (each, a "Proposed Workplan") outlining the specific Services that CHS proposes to perform on Client's behalf or that Client requests CHS to perform on its behalf. Such Services may include, but are not limited to, the following: (i) developing and submitting for Client's approval advertising, marketing, and promotional programs for the Product, (ii) after approval by Client, developing advertising and communications materials for the Product for professional, trade, and consumer print, broadcast, and other media, (iii) after approval by Client, creating and preparing sales promotion material such as sales aids, detail aids, point-of-sale, direct mail, leaflets, inserts, catalogs, brochures, sales films, training films, sales manuals, interactive and on-line materials, (iv) checking all media vehicles carrying out communications for the Product for proper placement, reproduction, and rates, (v) purchasing all materials and services necessary for the production of finished advertisements and commercials as approved by Client, and (vi) providing design services including packaging, trademarks, and corporate identity programs.


(b) Each Proposed Workplan provided to Client pursuant to Section 2(a) will include, at a minimum, a detailed summary of the specific Services to be provided by CHS and CHS's good faith estimate of the anticipated fees and costs (a "Budget") associated with all projects ("Projects") to be undertaken by CHS under such Proposed Workplan. Client may request additional information to be included in a Proposed Workplan and CHS will use all reasonable efforts to provide such additional information. Each Proposed Workplan will be submitted for Client's approval under the procedures described in Section 3 below.


(c) Following approval by both parties of a Proposed Workplan for one or more Projects (as provided in Section 3), CHS will, subject to Client's direction and instruction or any amendment of the approved Workplan in accordance with Section 7, perform or


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coordinate the performance of those Services that are included in such Workplan. CHS will exercise reasonable efforts to perform the Services on a timely basis and within the Budget, and Client will exercise reasonable efforts to assist CHS in doing so by making available to CHS all information pertaining to the Product that is necessary for CHS's performance of such Services and cooperating with CHS in expediting its review of all materials submitted by CHS for Client's approval.


(d) During the Term, CHS and those of its affiliates performing Services for Client agree to refrain from providing Services for any product that competes against the Product and has substantially the same indication as the Product, without first obtaining Client's written consent, which consent shall not be unreasonably withheld.


a73. Client Approval .


(a) Each Proposed Workplan submitted to Client by CHS in Section 2 is subject to the review and written approval of Client prior to the time CHS or any of its affiliates incur liability to third parties in connection with the Projects contained in such Proposed Workplan. Once a Proposed Workplan is approved by both parties, such approved workplan shall be referred to as a "Workplan," and it shall govern the performance for Client of the Services covered by such Workplan. For clarity, neither CHS nor its affiliates will perform any Services or incur any expenses with respect to such Services, and Client will not be obligated to pay for any Services, except in accordance with a Workplan that has been approved by Client.


(b) All drafts of any proposed journal advertisements, training materials, media copy, advertisements or other promotional material used to promote the Product (collectively, the "Promotional Material") will be submitted to Client for review at least two (2) weeks prior to publication or use, whenever practicable, provided, however, that the parties understand and agree that such two (2) week period will necessarily be shortened from time-to-time to reflect special deadlines and circumstances not within the reasonable control of CHS. Client will be solely responsible for reviewing and approving the content of all Promotional Material and related Services prior to use of such Promotional Material and performance of related Services to make certain that all content in such Promotional Material and any and all related Services comply with all federal, state and local laws and all applicable industry standards and practices generally applicable to CHS's and Client's industry, including, without limitation, any applicable research guidelines, ethics and standards established by the American Medical Association, the Food and Drug Administration ("FDA"), the standards and guidelines outlined in the PhRMA Code, the standards and guidelines outlined in the Office of Inspector General (OIG) Guidance, and the Federal Food, Drug and Cosmetic Act and the regulations promulgated pursuant thereto (collectively, "Laws"). Client hereby acknowledges that CHS will not conduct a legal review of the content of Promotional Material and/or related Services and that CHS is relying solely on Client to make certain that the content of Promotional Material and related Services comply with all Laws. CHS will ensure that the content of the final copy of Promotional Material and related Services is identical to the draft content of such Promotional Material and related Services as approved by Client.


(c) Client will have the right to make any editorial changes it desires prior to publication or use, with any charge for such change to be consistent with the Budget procedures


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Certain portions of this Exhibit have been omitted pursuant to a request for confidentiality.

Such omitted portions, which are marked with brackets [ ] and an asterisk *, have been separately filed with the Commission.


outlined in Section 3(d), below; provided, however, that Client must notify CHS in writing of either its approval or disapproval and/or required editing of Promotional Material as promptly as practicable, but in no event less than forty-eight (48) hours prior to the planned publication or use.


(d) The initial Budget for a specific Project included in a Workplan will necessarily include fee and cost estimates based upon initial concepts and preliminary estimates, and CHS will be authorized to commence work and incur expenses on that particular Project based upon Client's approval of the Workplan containing such initial Budget and up to an amount not to exceed [* * *] of the fees and costs in such approved Budget. CHS will submit a revised Budget to Client at any time during performance of a Project if fees and costs for such Project are anticipated to exceed the initial Budget by more than [* * *], and this revised estimate must be approved by Client in writing before work on such Project continues. Once final concepts for a Project are approved and final fee and cost estimates can be obtained, CHS will submit a final Budget for Client's written approval if the initial Budget needs to be increased by more than [* * *] as a result of such final cost estimates. CHS will use all reasonable efforts to complete the Services within the approved Budget. In the case where, despite such efforts, cost estimates to complete the Services exceed the initial Budget by more than [* * *], CHS agrees to negotiate with Client in good faith a revised Budget that is acceptable to both parties. In any event, Client's written approval is required prior to any increase of the Budget for a Project by more than [* * *] from the initial Budget and for any further increases thereafter.


a74. Joint Commercialization Committee . Promptly following the Effective Date, a joint commercialization committee (the "Committee") will be formed consisting of an equal number of representatives, such number to be mutually agreed by the parties, from each of Client, CHS, and Cardinal Health. Each party may replace any of its representatives at any time, and from time to time, by giving written notice to the other party. The Committee will be chaired by a Client representative, and the Committee will meet at such locations as reasonably determined by the chair to discuss and coordinate the overall marketing and sales strategy for the Product, relevant Workplans and Budgets therein associated with the Product, and any other relevant topics relating to the commercialization of the Product. The Committee will convene at least four (4) times annually or more frequently as the parties deem necessary and meetings may be held by audio or video teleconference, with the consent of each party; provided that at least one (1) meeting per calendar year shall be held in person. The parties agree that the purpose of the Committee is solely to provide a forum for the parties to discuss, monitor and coordinate activities and communications relating to the performance of the Services and provide recommendations relating thereto to the parties. The Committee does not have the authority to approve or modify Workplans or Budgets, or to amend this Agreement.


a75. CHS Compensation . In consideration for the Services that are rendered to Client under this Agreement, CHS will invoice Client and Client will pay CHS as follows:


(a) As compensation for performance by CHS and its affiliates of the Services, Client will pay a fee (the "Agency Fee") for each Project as specified in the approved Budget for such Project, whether relating to advertising and promotional, strategic consulting, interactive applications and website development, data analytics, branding, relationship


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marketing, or other similar services. Such Agency Fee for the Services performed in a particular month will be determined as follows:


(i) Total fees for such Services shall be calculated based on the applicable CHS and its affiliates' rates as set forth in the applicable Budget;


(ii) Such total fees then shall be reduced by the amount (if any) of the pre-determined discount amount to which Client is entitled (any such discount, a "Discount Amount"), where such Discount Amount will be determined as described in the Discount Matrix attached as Exhibit A, and such discounted fees shall be the "Agency Fee" for such Project for such month.


(b) The Agency Fee for each Project will be invoiced to Client by CHS on a monthly basis promptly after the beginning of each month as specified in the approved Budget, and Client will pay each such invoice within thirty (30) days of receipt thereof. Each such invoice will specify with reasonable detail all the charges for Services, and the basis for any Discount Amount used in arriving at the Agency Fee.


(c) All Discount Amounts actually allowed will be aggregated and, if applicable, paid to CHS by Client in accordance with the terms and conditions contained in the Discount Payment Matrix attached as Exhibit B.


(d) Client will reimburse CHS for actual, verifiable costs incurred for obtaining from third parties any printing, photography, market research, selling aids, direct mail, reference material, color graphic reproductions, exhibit panels, honoraria, conference/meeting expenses and other products, services and supplies purchased by CHS on behalf of Client for a Project under this Agreement ("Client Reimbursable Expenses") plus CHS' standard mark-up of 4%; provided, however, that the aggregate costs for such Client Reimbursable Expenses are included in the Budget of the relevant Workplan approved in advance by Client and is subject to the provisions of Section 3(d) with respect to any increase in such costs. Fifty percent (50%) of the estimated Client Reimbursable Expenses for each Workplan (as set forth in the applicable Budget) will be invoiced by CHS upon Client's approval of the Workplan, and the balance of the Client Reimbursable Expenses will be invoiced on a monthly basis after such initial advance payment has been fully credited against actual costs incurred (as shown by invoices provided and credits shown), as such expenses are incurred by CHS, or as otherwise agreed to by the Parties as specified in the Budget. Client will pay each such invoice within thirty (30) days of receipt thereof.


(e) Client will reimburse CHS for its reasonable, verifiable travel expenses (including, without limitation, transportation, lodging and meals), fax, photocopying, telephone, overnight or other delivery, postage, shipping and other expenses associated with the performance of Services under this Agreement ("Out-of-Pocket Expenses"), without any CHS mark-up. An estimate of the Out-of-Pocket Expenses for each Project shall be included in the Budget of the relevant Workplan approved in advance by Client and is subject to the provisions of Section 3(d) with respect to any increase in such expenses. Out-of-Pocket Expenses will be invoiced by CHS on a monthly basis, as incurred, and Client will pay each such invoice within thirty (30) days of receipt thereof.


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(f) When CHS contracts with broadcast or print media for Services performed under this Agreement ("Media Buys"), CHS will, wherever practicable, contract on behalf of Client in a format substantially similar to that promulgated by the American Association of Advertising Agencies ("AAAA"). CHS will use all reasonable efforts to guard against loss to Client through failure of media suppliers to properly execute their commitments. However, notwithstanding anything to the contrary contained elsewhere in this Agreement, CHS will not be responsible for any failure on the part of media suppliers to perform. Estimated costs for Media Buys will be included in the Budget of the relevant Workplan, subject to CHS's standard mark-up, and will be invoiced by CHS upon issuance of the insertion order. Client will pay each such invoice for Media Buys within thirty (30) days of receipt thereof. For clarity, CHS will not place any advertising in any media for Client without Client's prior written approval.


(g) Sales, use and other taxes will be included in the Budget and reimbursed by Client in a similar manner to other expenses associated with each Project; provided, however, that CHS will be responsible for all federal, state and local taxes imposed on CHS's income or in connection with the employment of CHS's full or part-time employees.


a76. Payment Terms . CHS will submit invoices to Client on a monthly basis or as otherwise agreed by the parties in writing. Payment terms will be net thirty (30) days from the date of the receipt, with interest accruing on any late payment at the rate of one and one-half percent (1.5%) per month until paid. CHS will provide, upon the request of Client, appropriate supporting detail to allocate expenses by Project and the specific activities undertaken in such Project. All payments due under Section 5 will be made payable to: Creative Healthcare Solutions, LLC and mailed to the address as set forth for notices in Section 19, unless otherwise specified by CHS in writing. Client and CHS will meet quarterly to review projected fees and costs compared to actual fees and costs on all Projects, and appropriate adjustments will be made to Workplans as necessary from time to time to reflect mutually approved changes in the scope of the work to be performed.


a77. Amending Workplans . Subject to the terms of this Section 7, Client reserves the right to modify or cancel any previously approved Workplan. In such event, CHS will promptly take all reasonable steps necessary or appropriate to carry out Client's instructions; provided, however, that Client will continue to be responsible for paying CHS for (a) all work performed and expenses incurred prior to CHS's receipt of notification of such change, provided that such work and expenses were incurred by CHS on Client's behalf in accordance with the relevant Workplan approved by Client, (b) all non-cancelable commitments incurred by CHS prior to its receipt of notification of such change, provided that such commitments were incurred by CHS on Client's behalf in accordance with the relevant Workplan approved by Client, (c) all expenses incurred by CHS in carrying out Client's revised instructions, and (d) any other cancellation or other similar fees specifically agreed to by the parties in a Workplan, if any. Notwithstanding the foregoing, Client may not modify or cancel Projects in a fashion that would be inconsistent with Agency's role as the exclusive "Agency of Record" under Section 1.


a78. Ownership of Technology; Work Made For Hire . Client will maintain ownership and maintenance of the NDA, all clinical/scientific data and any other information related to the Product.


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(a) Work Product. CHS agrees and acknowledges that, unless otherwise agreed to by the parties in a Workplan, Client will own all right, title and interest in and to all ideas, artwork, illustrations, audiovisual works, audio recordings, images, photographs, video, graphics, multimedia works, on-line products, sounds, text, notes, sketches, drawings, reports, inventions and Promotional Material, whether patentable or copyrightable, or other copyrightable works conceived or created by CHS or CHS's affiliates or third party subcontractors in the course of performing the Services pursuant to this Agreement and which are accepted and paid for by Client (collectively, the "Work Product"). Such Work Product will be deemed "works made for hire," and CHS hereby assigns and shall assign to Client, and shall cause its affiliates and subcontractors (as applicable) to assign to Client, all right, title and interest in and to such Work Product and all intellectual property rights related thereto. If Work Product is lost, damaged, or destroyed while in CHS's custody or control, CHS will be liable to Client for the replacement cost of such Work Product. Upon Client's request at any time during the Term or thereafter, CHS will promptly transfer all Work Product to Client.


(b) Brand Features. Subject to retained third party rights disclosed to Client in advance in accordance with Section 9, all trademark(s), trade name(s), logo(s), slogan(s), and advertising plan(s) that are created by CHS and/or its affiliates for Client and which are accepted and paid for by Client under this Agreement (the "Brand Features") will be the property of Client and regarded as "works made for hire." CHS will not adopt, suggest or recommend the use of any Promotional Material or Brand Feature of which CHS knows, or in the exercise of reasonable diligence, should know, is identical to or confusingly similar to that being used by a third party. CHS hereby assigns to Client, and shall cause its affiliates and subcontractors (as ...