Agreement Relating to the Issue of an Operating Licence for the Creation and Operation of a Health Sector Database - Minister for Health and Social Security and Islensk Erfdagreining ehf.
AGREEMENT
BETWEEN
THE MINISTER FOR HEALTH AND SOCIAL SECURITY
AND
ISLENSK ERFDAGREINING EHF.
RELATING TO THE ISSUE
OF AN OPERATING LICENCE
FOR THE CREATION AND OPERATION
OF A HEALTH SECTOR DATABASE
The Minister for Health and Social Security, representing the Icelandic
Government, hereinafter referred to as "the Issuer" and Islensk erfdagreining
ehf., State Reg. No. 691295-3549, of Lynghals 1, Reykjavik, hereinafter referred
to as "the Licensee", both parties hereinafter referred to as "the Parties",
hereby enter into the following
AGREEMENT
ARTICLE 1
BASIS
The Issuer will, on Saturday 22 January 2000, issue to the Licensee a temporary
Operating Licence for the creation and operation of a Centralised Health Sector
Database, hereinafter referred to as the "OPERATING LICENCE". With reference,
i.a. to Paragraph 5 of Article 4 and Sub-Paragraph 11 of Paragraph 2 of Article
5 in Act No. 139/1998 on a Health Sector Database, and Sections 9.5 and 10.6 of
the Operating Licence, the Parties have come to a consensus on conclusion of the
present Agreement and the provisions thereof.
ARTICLE 2
ACTIVITIES OUTSIDE THE REYKJAVIK METROPOLITAN AREA
The Licensee declares that in the operation of the Database during the term of
the Operating Licence, he will seek, and take measures, to ensure that part of
his activities, the activities of his subsidiaries, and/or partner companies
will be conducted outside the Reykjavik Metropolitan Area. This refers, i.a., to
software programming, data transfer and other related activities. On the part of
the Licensee, measures will be taken to establish working facilities outside the
Reykjavik Metropolitan Area where such measures are in the interests of the
Company and/or seek co-operation or collaboration with service providers outside
the Reykjavik Metropolitan Area who are capable of performing such a role in a
comparable manner.
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ARTICLE 3
ANNUAL FIXED PAYMENT
In addition to the payments stipulated in Act No. 139/1998, the Government
Regulation on the Health Sector Database and the Operating Licence itself, the
Licensee shall pay a separate annual fee to the Icelandic Government as further
stipulated hereinafter in Articles 4, 5, and 6. The fee shall be used by the
Issuer to promote health care and for research and development pursuant to
Paragraph 5 of Article 4 of Act No. 139/1998.
ARTICLE 4
AMOUNT OF THE ANNUAL FEE
During the term of the Licence, over the years 2000 through 2011, the Licensee
shall pay an annual fee to the Icelandic Government in the amount of ISK
70,000,000 - seventy million Icelandic kronur -. The fee shall from the start
and throughout the term of the Licence be adjusted based on changes in the
consumer price index for the indexation of savings and loans, based initially on
the base index of the month of January, 2000, i.e. 194.0 points.
ARTICLE 5
REVISION OF THE ANNUAL FEE
As of the time that 6 years have passed from the issue of the Operating Licence,
the Licensee may request a review of the Annual Fee pursuant to Article 4 for
the remainder of the licence term, provided that the basis of operations and
business plans of the Licensee have changed substantially and it is foreseeable
that the company will not return a profit over the next 2 to 3 years. Such a
review shall, however, at no time have the effect that the licence fee pursuant
to Article 4 falls below the amount of ISK 50,000,000 -fifty million Icelandic
kronur -, indexed as stipulated in Article 4, for the remainder of the Licence
term. If and when such a review is conducted pursuant to the provisions of this
Article 5, any payments due shall not be subjected to review.
ARTICLE 6
PROFIT SHARE
In addition to the Annual Fee pursuant to Article 4, cf. Article 5, the Licensee
shall, in respect of the years 2000-2011, inclusive, pay an additional fee to
the Icelandic Government amounting to 6% of the profits of Islensk erfdagreining
ehf before taxes for the year in question. Profit in this context refers to the
income tax base of the Licensee pursuant to Sub-Paragraph 2 of Article 62 on
Income Tax and Net Worth Tax No. 75/1981. Notwithstanding the above, the
additional fee pursuant to this Article 6 shall never exceed the amount of ISK
70,000,000 - seventy million Icelandic kronur - index-adjusted pursuant to the
provisions of Article 4.
ARTICLE 7
PAYMENT OF FEES
Payment of the Annual Fee pursuant to Article 4, cf. Article 5, shall take place
in a single payment on 1 July of each year for the year in question, first on 1
July 2000 for that year, cf., however, Paragraph 2 of Article 9.
Payment of the additional fee pursuant to Article 4, cf. Articles 5 and 6
hereof, shall never exceed the amount of ISK 140,000,000 - one hundred and forty
million Icelandic kronur - index-adjusted pursuant to the provisions of Article
4.
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ARTICLE 8
PLACE OF PAYMENT
The Licensee shall make all his payments to the Icelandic Government pursuant to
this Agreement in the office of the State Treasury.
ARTICLE 9
AGREEMENTS WITH HEALTH INSTITUTIONS
On the initiative of the Licensee, the Parties will make joint efforts to ensure
that agreements of the Licensee with health institutions and self-employed
health service workers on access to data from medical records and the handling
of such data can be concluded as soon as possible. The intention is for the
conclusion and signature of such agreements to be accomplished at the end of the
year 2000.
Notwithstanding the provisions of Paragraph 1 of Article 7, the first payment of
the Annual Fee shall not take place until the Licensee has succeeded in
concluding agreements with the Reykjavik Hospitals and/or the Icelandic State
Hospital, the Regional Hospital in Akureyri and two other health institutions in
other districts of Iceland pursuant to the terms of the Operating Licence, in
particular Article 4, cf. Article 5 thereof, regarding agreements of the
Licensee with health institutions and self-employed health service workers on
access to data from medical records and the handling of such data. In the event
of a delay in the conclusion of such agreements, the Annual Fee pursuant to
Article 4, cf. Article 5 hereof, as accrued and index adjusted pursuant to the
guidelines of Article 4, shall be paid as a lump sum when the agreements with
the said institutions have been reached. In the event that it proves impossible
for unforeseeable reasons to conclude agreements with more institutions than the
institutions referred to above within two years from the issue of the Operating
Licence, the Parties agree to subject the Annual Fee pursuant to Article 4 to
review.
ARTICLE 10
OPERATION FOR MAXIMUM PERIOD OF 9 MONTHS
For a period of a maximum of 9 months following the expiration of the Operating
Licence or its termination for other reasons, the Licensee is under obligation,
without special remuneration, to provide the Issuer or the Monitoring Committee
pursuant to Article 6 of Act No. 139/1998, with access to all hardware necessary
for the creation and operation of the Health Sector Database and "Software" and
"Intellectual Property Rights" as such terms are defined in Section 8.1 of the
Operating Licence. The Issuer shall during the course of this period pay service
fees and other comparable fees for the necessary rights provided by the Licensee
to the Issuer, including any licence fees for patents and registration fees
relating to the necessary rights of the Licensee which may be payable during the
period.
ARTICLE 11
OPERATION FOR NON-BUSINESS PURPOSES
In the event that the Issuer or the Monitoring Committee or any party in their
place continues the operation and creation of the Database after the expiration
of the Operating Licence and/or in continuation of the maximum 9-month period
pursuant to Article 10 of this Agreement, and if the Database is operated only
in the service of the health care system, the general public and public
entities, for non-business purposes, the Licensee shall not be entitled to
remuneration for "Software" and "Intellectual Property Rights" as such terms are
defined in Section 8.1 of the Operating Licence, which are delivered to the
Issuer and which he has at his future disposal. The Issuer, Monitoring Committee
or any party in their place shall, following the end of the maximum
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9-month period, pay service fees and other comparable fees for the necessary
rights provided by the Licensee to the Issuer, including any licence fees for
patents and registration fees relating to the necessary rights.
ARTICLE 12
OPERATION FOR BUSINESS PURPOSES
In the event that the Issuer or the Monitoring Committee or any party in their
place continues the operation and creation of the Database for business purposes
after the expiration of the Operating Licence in continuation of the maximum
9-month period pursuant to Article 10 of this Agreement, or if the operation of
the Database for business purposes is recommenced within 5 years of the end of
the term of the Licence pursuant to Section 15.1 of the Operating Licence, the
Licensee shall be entitled to remuneration for "Software" and "Intellectual
Property Rights" as such terms are defined in Section 8.1 of the Operating
Licence, and which are delivered to the Issuer and which he has at his future
disposal. The Issuer, Monitoring Committee or any party in their place shall,
following the end of the maximum 9-month period pay service fees and other
comparable fees for the necessary rights provided by the Licensee to the Issuer,
including any licence fees for patents and registration fees relating to the
necessary rights.
ARTICLE 13
ASSESSMENT OF REMUNERATION
The assessment of the remuneration for the software and/or rights delivered by
the Licensee and in respect of which the Licensee is entitled to remuneration
for pursuant to Article 12 shall be based on the future use of the Issuer, the
Monitoring Committee or any party in their place of the software and/or rights
for business purposes. Furthermore, account shall be taken of the future
usefulness of the software and rights and their market price on the date of
delivery. Each of the Parties shall appoint one party to assess the financial
value and payment arrangements. There shall be no further payment to the
Licensee for the future use of the items which are delivered and which are of
permanent future use.
ARTICLE 14
ARBITRATION
In the event that an agreement cannot be reached between the Parties regarding
the review of the Annual Fee pursuant to Article 5 or the amount of remuneration
pursuant to Article 13, the decision shall be referred to an arbitration
tribunal which shall conduct its activities pursuant to Act No. 53/1989 on
Contractual Arbitration. Each of the Parties shall then appoint one arbitrator
and the Parties then jointly request the court appointment of a neutral third
arbitrator by the District Court of Reykjavik to participate in the process of
the dispute, such arbitrators to form an arbitration tribunal of three
arbitrators. The arbitration tribunal shall conclude its conduct of proceedings
within three months from the time that the tribunal has been fully constituted.
The decision of the arbitration shall be final as regards the dispute of the
Parties and cannot be referred to the public courts.
ARTICLE 15
INDEMNITY
The Licensee declares that he will not during the effective term of the
Operating Licence, or later with reference thereto, make any claims of any kind
against the Issuer, representing the Icelandic Government, in respect of any
amendments made to legislation or rules relating to the Database on the grounds
that such legislation or rules are regarded as inconsistent with the rules of
the European Economic Area or other international rules and agreements to which
Iceland is a party
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or to which Iceland may later accede. The Issuer declares, furthermore, that in
the event that the Issuer or the Icelandic State by final judgement for any
reason, alone or together with the Licensee, is regarded as liable or subject to
payment to any third party as a result of legislation and/or the issue of the
Operating Licence, the Licensee undertakes to assume all the obligations of the
Issuer and the Icelandic Government, to the extent possible, and furthermore to
reimburse the Icelandic Government for any compensation for which the Icelandic
Government may be required to pay in respect of such liability together with all
interest and all cost of the Icelandic Government rising from such liability and
obligation to pay, provided always that the Icelandic Government has maintained
a full defence in the issues in question. In the event that the Icelandic
Government enters into negotiations with a third party regarding payment of
compensation on the basis of the liability of the Icelandic Government arising
from legislation on the Database and its operation and/or the issue of the
Operating Licence, the Licensee undertakes to pay such compensation and to
reimburse the Icelandic Government for any compensation which the Icelandic
Government may have paid for such reasons together with accrued costs, provided
that the Icelandic Government demonstrates that the Icelandic Government was
justified and under obligation to make the payments or pay the compensation in
question.
ARTICLE 16
PROVISIONS OF CONTRACTUAL LAW
The Parties have agreed and approved the provisions of Articles 3, 4, 5, 6, 10,
11, 12, 13, 14 and 15 above in full knowledge of the termination provisions of
Chapter III, particularly Article 36, of Act No. 7/1936 on contracts,
authorisation and invalid legal instruments, as amended by Act No. 11/1986 and
Act No. 14/1995.
ARTICLE 17
TERM OF EFFECT
This Agreement shall remain in effect during the term of the Operating Licence.
However, the Agreement may be subjected to review and amended during the term of
the Operating Licence by an Annex provided that both Parties so agree.
ARTICLE 18
DISCUSSIONS ON AN OPERATING LICENCE
The Parties declare that during the course of the review of the Operating
Licence pursuant to Section 15.3 of the Operating Licence, the Parties will
enter into discussions on the renewal of the Operating Licence, provided that
the Licensee at that time meets all the general requirements of current
legislation on the Health Sector Database, regulation on the Health Sector
Database and the Operating Licence. Such discussion shall be based on objective
principles and conform to current law, rules and international agreements to
which Iceland is a party. The renewal of the Operating Licence is furthermore
subject to a new or supplementary agreement being reached in place of this
Agreement.
ARTICLE 19
CONDITIONS AND REVOCATION OF LICENCE
Since this Agreement is one of the conditions for the issue of an Operating
Licence to the Licensee, cf. Sections 9.5 and 10.6 of the Operating Licence, as
well as its performance by the Licensee during the term of the Operating
Licence, the Licensee is fully aware that any non-performance of the provisions
of this Agreement and delays in payment on his part could result in revocation
of the Operating Licence.
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This Agreement is signed by the Parties in the presence of witnesses confirming
the correct signatures and date.
Reykjavik, 21 January 2000
For the Government of Iceland For Islensk erfdagreining ehf.
Ingibjorg Palmadottir Kari Stefansson
Minister for Health and Social Security Managing Director
Witnesses:
David B. Gunnarsson, Id. No. 090744-3219
Baldur Gudlaugsson, Id. No. 081246-2629
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