Consulting And Prof. Services Agreement

CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION - ASTERISKS DENOTE OMISSIONS.


CONSULTING AND [LILLY LOGO] PROFESSIONAL SERVICES
AGREEMENT


ELI LILLY AND COMPANY ("Lilly") and the consultant signing below (the "Consultant") hereby agree as follows:


1. SCOPE OF SERVICE. The scope of services to be performed by Consultant shall
be mutually agreed to on an individual work order basis. Lilly may, from
time to time, request Consultant to submit at no cost to Lilly a written
proposal for the provision of consulting and professional services.
Consultant may thereupon submit to Lilly a written proposal regarding such
services, specifying in detail the services to be rendered, including: (a)
a description of the work product to be delivered, including, if
applicable, acceptance criteria and detailed design and functional
specifications for the deliverables thereunder; (b) the proposed
performance schedule; and (c) an estimate of Lilly's cost for such services
based on time and materials required (collectively, the "Proposal").
Consultant's stated fee may not be increased prior to acceptance by Lilly
for a period of three (3) months from the date of receipt of the Proposal
by Lilly. The parties may create a binding agreement subject to the terms
and conditions of this Agreement by adapting the contents of the Proposal,
as amended by the parties, into a written Work Order signed by both parties
which refers to this Agreement and which is substantially in the form of
the Attached Exhibit A ("Work Order"). A signed Work Order may be modified
only by a written Change Order signed by both parties which refers both to
this Agreement and to the associated Work Order, and which is substantially
in the form of the Attached Exhibit B ("Change Order"). NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, NO WORK ORDER OR CHANGE ORDER SHALL BE
EFFECTIVE UNLESS SIGNED BY THE LICENSOR'S CHIEF FINANCIAL OFFICER OR
GENERAL COUNSEL.


2. INVOICES AND COMPENSATION. Lilly shall pay to Consultant all invoiced
amounts for accepted services rendered by Consultant in accordance with
this Agreement, and for reimbursement of reasonable out-of-pocket expenses
necessarily and actually incurred by Consultant in connection with
providing such services, provided that: (i) all expenses related to travel
and lodging shall comply with Lilly's corporate travel policies; and (ii)
for all non-travel related expenses, the expenses are itemized on the Work
Order or pre-approved in writing by Lilly. Consultant shall not invoice
Lilly with respect to any particular Work Order for services or expenses in
excess of the maximum ("not-to-exceed") compensation amount set forth in
the applicable Work Order or Change Order. Unless otherwise specified in
the Work Order, Consultant shall invoice Lilly for services and expenses
chargeable hereunder monthly in arrears for all Work Orders which specify
that the work is to be performed on a time and materials basis. For Work
Orders specifying a fixed fee, Consultant shall invoice Lilly in accordance
with the payment schedule listed on the applicable Work Order. All invoices
shall be itemized and shall substantiate all charges therein set forth.
Consultant shall maintain complete and accurate accounting records, in a
form in accordance with generally accepted accounting practices, to
substantiate Consultant's charges and expenses hereunder. Consultant shall
retain such records for a period of one (1) year from the date of final
payment under any Work Order. Lilly shall pay all valid invoices, except
for any amounts disputed by Lilly, within thirty (30) days after the date
of the invoice.


3. PERSONNEL. Consultant shall make available for each Work Order qualified
personnel necessary to fulfill its obligations hereunder. Consultant is not
permitted to utilize subcontractors for performance of any Work Order
unless prior written consent is first obtained from Lilly, and unless such
subcontractors have executed a written agreement with Consultant which
obligates any such subcontractor to protect Confidential Information and to
* to the same extent as is required of Consultant by this Agreement.
Further, Consultant agrees to be fully responsible for all acts and
omissions of any subcontractor used by consultant and permitted under this
Agreement. Lilly may, in its discretion, request that * under this
Agreement * to Lilly * which * effective upon written notice from Lilly *.
During the course of each Work Order, Consultant shall permit Lilly to be
present, when reasonable, as observers while various tasks are being
conducted and to consult with Consultant personnel regarding the Work
Order. Consultant shall, at Lilly's sole discretion, perform the services
at Consultant's offices, Lilly's offices, or elsewhere, and the times
during which services are rendered shall be at Lilly's discretion when
required to be performed at Lilly's offices. Consultant shall be fully and
solely responsible for the compensation and performance of all of its
employees hereunder and the filing of any and all returns and reports and
the withholding and/or payment of all applicable federal, state and local
wage tax, or employment related taxes, including, but not limited to,
income taxes, gross receipt taxes, taxes measured by gross income,


THE SECTIONS ON THE FOLLOWING PAGES ALSO ARE PART OF THIS AGREEMENT


IN WITNESS WHEREOF, Lilly and Consultant have caused duly authorized representatives of the respective parties to execute this Agreement on the date(s) set forth below.


Phase Forward Incorporated ELI LILLY AND COMPANY --------------------------------- "LILLY" "CONSULTANT"


By: /s/ John J. Schlicking By: /s/ Julian Martinez
------------------------------ ---------------------------------
Signature Signature


John J. Schlicking Julian Martinez --------------------------------- ------------------------------------ Printed Name Printed Name


Senior Vice President & CFO 3/7/01 Global Sourcing Manager 3-29-01 ---------------------------------- ------------------------------------ Title Date Title Date


Social Security taxes, and unemployment taxes for Consultant and Consultant's employees. The status of Consultant and its employees shall be that of independent contractor and no such personnel shall, at any time or for any purpose, be deemed employees or agents of Lilly. Neither Consultant nor any employee of Consultant shall be entitled to participate in any Lilly employee benefit plan. Consultant warrants that it has enforceable written agreements with all of its employees and all subcontractors permitted hereunder to be involved in any project under this Agreement (i) assigning to Consultant ownership of all patents, copyrights and other proprietary rights created in the course of their employment or engagement; and (ii) obligating such employees upon terms and conditions no less restrictive than contained herein, not to use or disclose any proprietary rights or information learned or acquired during the course of such employment or engagement, including, without limitation, any Work Product (defined in Section 8 below) hereunder, and any other information pursuant to Section 7 hereof.


4. * OF SERVICES. If specified in a Work Order, each deliverable for such Work Order shall be subject to * by Lilly to * of the Work Order and * by Lilly to Consultant. If Lilly * within * following * and Lilly *, Consultant shall * in a * or, * by Lilly for the services *.


5. EXCHANGE OF INFORMATION AND TECHNICAL ASSISTANCE.


5.1 Upon completion of Services that include * identified as * as defined in
Section 8, Consultant shall deliver to Lilly the Work Product, including
related documentation and Consultant Property (defined in this Section
5), to the extent necessary for Lilly to * the subject matter of the
individual Work Order. Consultant warrants that the technical assistance
to be rendered under the Work Order shall be adequate to familiarize
Lilly with the Work Product and documentation under such Work Order, and
to enable Lilly to use the same.


5.2 Upon completion of Services that include * identified as * as defined in
Section 8, Consultant shall disclose and deliver to Lilly the Work
Product and related documentation and all Consultant Property, to the
extent necessary or useful to *.


5.3 As used herein, "Consultant Property" means * under a particular Work
Order, which Consultant uses to satisfy its obligations under that Work
Order.


5.4 Notwithstanding anything herein, nothing in this Agreement shall require
Consultant to provide Lilly with any source code for any * or *, and
Lilly shall not alter, reverse engineer, disassemble, decompile or copy
any * or *.


6. LILLY'S COVENANTS AND OBLIGATIONS


6.1 PROHIBITION OF DIAGNOSTIC OR THERAPEUTIC USE. Lilly acknowledges that it understands, and undertakes to ensure that all users of the services will understand, that (i) the services any deliverables associated therewith are designed to expedite and improve the collection, management and analysis of specific and limited data in clinical trials; (ii) such data do not comprise complete patient medical record; (iii) such data may be incorrect because of transcription or other errors; (iv) the services and any deliverables are not a diagnostic or therapeutic aid and must be used only for research purposes, and (v) data collected using, or analyses performed using, the services or any deliverable must not be used for patient diagnosis or therapy decisions.


6.2 COMPLIANCE WITH CLINICAL TRIAL AND PRIVACY LAWS. Lilly represents and covenants, with respect to all clinical which it conducts using the services or any deliverable, 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 all language necessary, and such consent forms will be implemented and obtained from subjects under all procedures necessary, to ensure compliance with the foregoing.


6.3 NO TRANSFER. No obligations pursuant to 21 CFR 312.52 shall be transferred by Lilly to Consultant under any this Agreement or any Work Order.


7. CONFIDENTIAL INFORMATION. Each party acknowledges that the other is the owner of valuable trade secrets and other confidential information, as well as other like information which is licensed from third parties. Each party shall treat as strictly confidential and shall not use for its own purposes or for third parties, or divulge or permit to be divulged to or examined or copied by others, all information and data obtained by it, or to which it is otherwise exposed, in connection with this Agreement or otherwise (i) which are confidential or proprietary to the other party or his customers, including, without limitation, the Work Product (defined in Section 8 below) pursuant to this Agreement; (ii) which relate to the research, products, operations, policies, procedures, techniques, accounts or personnel of the other party; or (iii) which are confidential or proprietary to a third party and which are in the possession, custody or control of the other party. In the event of a breach or threatened breach of the provisions of this Section, each party shall be entitled to an injunction restraining such breach or threatened breach without having to prove actual damages or threatened irreparable harm. Such injunctive relief as a party may obtain shall be in addition to all of the rights and remedies available at law and in equity.


This section shall not apply to any information that: (i) is in or comes into the public domain through no breach by the recipient of the information of its obligations under this Agreement; (ii) the recipient acquires from a third party who owes no obligations of confidence to the other party to this Agreement in respect thereof; (iii) was already known to the recipient at the time it received such information from the other party to this Agreement as shown by the recipient's prior written records; or (iv) is independently developed by the receiving party without use of the other party's confidential information.


If either party is requested or required by any legal or investigative process to disclose any information that it is not permitted to disclose, that party shall provide the other with prompt notice of each such request and the


Eli Lilly and Company Consulting and Professional Services Agreement -- December, 2000, Edition 1.0


Page 2 of 7


information requested so that the other party may seek to prevent disclosure or the entry of protective order. If disclosure is required and a protective order is not obtained, the party from whom disclosure is required shall disclose only such information that it is advised by its counsel is legally required to be disclosed.


8. PROPERTY AND PROPRIETARY RIGHTS. Consultant agrees that all material
delivered pursuant to a Work Order or Change Order must be specified in the
Statement of Work as *. As used herein, "Work Product" means * (the "Work
Product"). Lilly and Consultant will mutually identify the Work Product as
being "*" "*" "*". * Materials will be considered *.


Each of us agrees to reproduce the copyright notice and any other legend of ownership on any copies made under the licenses grant in this Section.


8.1 * are those Work Product created or delivered pursuant to a Work Order
or Change Order in which Consultant * and that Consultant will, during the
term of this Agreement *. Upon termination of this Agreement or a Work
Order, Consultant will provide to Lilly all copies of * and Lilly will *,
excluding *. Consultant agrees that if any * it shall be deemed to be a *,
as such term is defined in the *. If, * of * Consultant hereby *.
Consultant shall cooperate with Lilly or its designees and *, and take
other necessary actions as reasonably directed by Lilly, to *. Such
cooperation * shall be performed *; provided, however, Lilly shall *.
Consultant shall cause each of Consultant's employees charged with
performance of a Work Order *. Consultant hereby grants Lilly *.


8.2 * are those * created or delivered pursuant to a Work Order or
Change Order, in which *.


8.3 * are Work Product created or delivered pursuant to a Work Order,
in which *. Consultant will deliver one copy of the specified * to
Lilly and *.


9. INFRINGEMENT WARRANTY. Consultant warrants that any Work Product produced under this Agreement and all Consultant Property (except for any Products as that term is defined in the Software License Agreement between the parties of even date herewith) shall be of original development or licensable by Consultant, as the case may be, and all Work Product and property licensed or owned by Consultant and used in the performance of any Work Order shall not infringe or violate any patent, copyright, trade secret, trademark, or other third party intellectual property right. Further, Consultant represents and warrants that the Work Product is not the subject of a lien, a security interest, claim, cause of action, or otherwise hypothecated to a third party.


Consultant warrants that it has the right to grant to Lilly the license to use Work Product as set forth in this Agreement without violating the rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by Consultant. To the extent Consultant incorporates third party rights into the Work Product, Consultant warrants that it shall have obtained the rights from those third parties to * under this Agreement.


* FOR * OF *. Consultant shall * provided for in * against any claim of a breach of the warranty set forth in Section 9 above. * AND THE ENTIRE OBLIGATION * WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.


10. WORK PRODUCT WARRANTIES.


10.1 PERFORMANCE. For a period of *, Consultant represents and warrants
that the Work Product shall substantially conform to and will ...