1
EXHIBIT 8(g)
CONSULTING SERVICES AGREEMENT
This agreement (the "Agreement") is entered into this ___ day of
______, 1999 (the "Effective date"), by and between XxXxxxxx Systems, L.L.C.
("XxXxxxxx"), a Georgia limited liability company with its principal place of
business at 0000 Xxxxxx Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000, and
Farmers New World Life Insurance Company ("Farmers"), a Washington corporation
with its principal place of business at 0000 00xx Xxxxxx XX, Xxxxxx Xxxxxx, XX
00000.
WHEREAS the parties plan to enter into a Master Administration
Agreement for the provision by XxXxxxxx, as an independent contractor, of policy
administration services to Farmers with the understanding that, in order to do
so, the VPAS(R) Life Insurance System will be enhanced by XxXxxxxx, working with
Farmers and at Farmers' cost, to incorporate changes required to support
Farmers' operations, systems and objectives; and
WHEREAS, XxXxxxxx agrees to provide certain services and resources as a
condition precedent to the execution of the aforementioned Master Administration
Agreement,
NOW, THEREFORE, Farmers and XxXxxxxx hereby agree as follows:
1. CONSULTING SERVICES:
1.1 Work Orders. "Work Orders" shall mean and refer to documents
referencing this Agreement and specifying work to be accomplished by XxXxxxxx
and to be paid for by Farmers. Work Orders shall, once executed, become a part
of this Agreement and shall define the scope of work to be accomplished in
conjunction with a specific project and shall estimate the cost for
accomplishment of this work. Project details, including, without limitation,
methodologies, deliverables, staffing (including the identified project
manager), project plans, acceptance standards, payment amounts and terms shall
be provided in the Work Order.
1.2 Services. Subject to all of the terms and conditions of this
Agreement, XxXxxxxx will perform services for Farmers as the parties may from
time to time agree to and set forth in the Work Orders (the "Services") and will
develop the materials, products, computer programs (both in source code and
object code form), documentation and other deliverables set forth in such Work
Orders (the "Work Product"), according to the specifications and schedules
contained therein (the "Specifications"). Farmers agrees that XxXxxxxx is not
responsible for providing any Services not set forth in a Work Order, unless
otherwise agreed in a Change Request as set forth in Section 5.
1.3 Work Order No. 1. As of the Effective Date, the parties have
agreed upon and set forth in Work Order No. 1 the Specifications for the initial
project to be undertaken hereunder.
2
2. FARMERS AND XXXXXXXX RESPONSIBILITIES:
2.1 Perform and Provide Materials. Farmers shall perform the tasks set
forth in the Work Orders, as a condition to XxXxxxxx'x obligations to perform
thereunder. In addition, if requested by XxXxxxxx, Farmers shall use its best
efforts to provide XxXxxxxx, at no charge, with accurate and reliable versions
of all necessary information, data, files, documents and other records requested
by XxXxxxxx to perform the Services, and with such other resources as may be
specified in the Work Order.
2.2 Access to Facilities. XxXxxxxx shall provide Farmers and its
authorized agents full and free access, during ordinary business hours, to all
software, products, computer programs (both in source code and object code
form), documents, records, reports, books, files, procedures for safekeeping,
and other materials relative to this Agreement that are maintained by XxXxxxxx.
Farmers or its duly authorized agents including, but not limited to Farmers'
independent auditors, have the right under this Agreement to perform on-site
audits of all such material at XxXxxxxx'x facilities in accordance with
reasonable procedures and at reasonable frequencies. At the request of Farmers,
XxXxxxxx will make available to Farmers, or its duly authorized agents, all
reasonably requested records and documents.
2.3 Back-Up Copies of Work Product. XxXxxxxx shall generate back-up
copies of all Work Product (including, but not limited to, back-up computer tape
files of all computer programs, software and value tables) created or modified
by XxXxxxxx pursuant to this Agreement, on a daily basis and maintain and store
such back-up copies in an off-premises location. The purpose of these back-up
procedures is to permit recovery in the event of destruction of any of the Work
Product. Farmers may review the procedures in effect and inspect the storage
facility upon demand.
2.4 Promotion of Farmers' Interests. XxXxxxxx shall endeavor to
promote the interests of Farmers as contemplated by this Agreement and shall at
all times conduct itself so as not to affect adversely the business, good
standing or reputation of itself or Farmers.
2.5 Correction of Malfunctions and Errors. In the event a malfunction
of any Work Product or any part of any Work Product causes an error or mistake
in any record, report data, information or output under the terms of any Work
Order, XxXxxxxx shall at its expense correct and reprocess such record, report,
data, information or output provided that Farmers notifies XxXxxxxx in writing
of such error or mistake as soon as practical after discovery.
2.6 Best Efforts to Meet Schedules. XxXxxxxx acknowledges that it is
of the utmost importance to Farmers that the Phase One and Phase Two Releases of
Project One be completed as of the dates stated in the "Billing and Fee
Schedules" section of Work Order No. 1. XxXxxxxx also acknowledges that Farmers
will suffer significant irreparable harm if the deliveries of Phase One or Phase
Two are not distributed to Farmers as of the dates specified therein.
Accordingly, XxXxxxxx agrees to use its best efforts to complete the Phase One
and Phase Two Releases of Project One within the month of January 2000 and April
2000
-2-
3
respectively (collectively, the "Completion Dates").
2.7 Communication of Delays and Good Faith Negotiation. XxXxxxxx
agrees that if, at any time and for any reason, it appears that it will be
unable to meet either of the Completion Dates, it will immediately communicate
such information, and the reason for the delay, to Farmers. Farmers agrees to
immediately communicate any changes in the scope of Work Order No. 1, its
variable insurance products, systems, operations or software development needs
that may affect the ability of XxXxxxxx to complete the Phase One and Phase Two
Releases of Project One by the Completion Dates. If either party communicates to
the other information which makes it evident that there may be a delay in
meeting either Completion Date, both XxXxxxxx and Farmers agree to negotiate in
good faith to take whatever action(s) the parties deem appropriate to fulfill
the purposes and spirit of this Agreement and Work Order No. 1.
3. SERVICE FEE:
3.1 Charges. In consideration of the Work Product and Services
provided to Farmers hereunder, Farmers shall pay to XxXxxxxx, at the rate and
under the terms set forth in the applicable Work Order, fees for the Services
and Work Product in U.S. dollars in immediately available funds (the "Service
Fee") in accordance with the payment schedule set forth in Section 4.1.
3.2 Taxes. Farmers shall also be responsible for the payment of all
applicable sales, use and other like taxes payable in connection with the
Service Fees, with the exception of income taxes incurred by XxXxxxxx in
connection with this Agreement.
3.3 Expenses. Farmers shall pay, or reimburse XxXxxxxx, for those
out-of-pocket expenses, including, but not limited to, travel and travel-related
expenses, lodging, meals, car rental, telephone, shipping and insurance, that
are actually incurred by XxXxxxxx at the request of, and with the approval of,
Farmers in connection with the performance of this Agreement. When on site
travel outside of Georgia is requested by Farmers and travel is conducted on a
normal workday, XxXxxxxx will xxxx Farmers for actual hours worked. When on site
travel outside of Georgia is requested by Farmers and travel is not conducted on
a normal workday (weekends, holidays) Farmers is to be billed for one hundred
fifty percent (150%) of actual travel hours for travel on holidays and one
hundred (100%) of actual travel hours for travel on weekends. Reasonable and
customary travel expenses incurred by XxXxxxxx will be billed to Farmers. Travel
expenses incurred by XxXxxxxx personnel on behalf of Farmers shall be consistent
with Farmers travel policy. Such travel policy is available upon request.
4. TIME OF PAYMENT:
The Service Fees will be billed to Farmers on a monthly basis in
accordance with the terms of the Work Order. Properly-invoiced Service Fees will
be due and payable within thirty (30) days after receipt of the invoice.
-3-
4
5. CHANGE SERVICES PROCEDURE:
In the event that Farmers wishes to change the scope of the Services
provided pursuant to a Work Order, Farmers shall specify such changes to
XxXxxxxx. XxXxxxxx will determine if any changes in resources are required and
the effect on schedules and prices, and shall complete a form in the format set
forth in the attached Change Request. No action will be taken by XxXxxxxx, and
XxXxxxxx shall have no responsibility for performing any work contemplated by
such Change Request, until execution of the Change Request by an authorized
representative of Farmers, and the return of such Change Request to XxXxxxxx.
Upon such execution, the completed Change Request shall be deemed an amendment
to the applicable Work Order and the services covered under the Change Request
will be performed according to the terms of this Agreement and the Work Order,
to the extent such terms are not changed in the text of the Change Request.
6. DEFAULT AND TERMINATION:
6.1 Term. This Agreement is effective when signed by both parties and
thereafter shall remain in effect until completion of the Services and delivery
of the Work Product or upon termination of this Agreement.
6.2 Termination for Default. In the event a party fails to perform
and/or observe any term, covenant or condition of this Agreement and fails to
cure such default within a period of thirty (30) days following notice of such
default from the non-defaulting party, the non-defaulting party, at its option,
shall have the right to terminate this Agreement at the end of such thirty (30)
day period upon an additional written notice to the defaulting party.
6.3 Termination for Convenience. Farmers may terminate this Agreement
at any time upon forty-five (45) days prior written notice to XxXxxxxx. In the
event that such termination occurs during a period in which Services under a
Work Order are continuing, Farmers shall be obligated to pay XxXxxxxx for
Services rendered through the date of termination, and any other amounts due
upon termination as may be specified in such Work Order.
7. NONSOLICITATION:
Each party hereto hereby agrees that so long as this Agreement is in
full force and effect and for a period of two (2) years thereafter, it will not
solicit for employment or endeavor to entice away from the other, any person who
is then in the employ of such other party hereto. Each party acknowledges that
in the event that it breaches this section of this Agreement, the other party
will suffer irreparable harm for which no adequate remedy at law exists and that
the other party may apply for a permanent injunction against the breaching party
restraining and enjoining such conduct.
-4-
5
8. REPRESENTATIONS AND WARRANTIES:
8.1 Power of Authority. Farmers and XxXxxxxx each represents and
warrants to the other that it has the right, power and authority to enter into
and be bound by this Agreement and that the individual who has executed this
Agreement on its behalf is duly authorized to do so.
8.2 Proprietary Rights. XxXxxxxx represents and warrants to Farmers
that XxXxxxxx has the right to develop and provide the Work Product and Services
to Farmers pursuant to this Agreement and that the Work Product will not
infringe any United States patent which has issued as of the Effective Date, or
any copyright or trade secret of another third party.
8.3 Indemnification. Notwithstanding any indemnification liability
XxXxxxxx may have other than under this Agreement (e.g., any indemnification
arising under statute or regulation applicable to the activities conducted
hereunder), XxXxxxxx shall indemnify and hold harmless Farmers and its
affiliates, and any partner, officer, director, employee, or agent of any of the
foregoing, against any and all losses, claims, damages, expenses or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of or
defending, any action, suit or proceeding or any claim asserted or any alleged
loss, liability, damage or expense and reasonable legal counsel fees incurred in
connection therewith), to which Farmers and its affiliates, and any partner,
officer, director, employee, or agent of the foregoing may become subject under
any statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, expenses or liabilities result: (1) because of a claim that the
Work Product, or Farmers' use thereof pursuant to this Agreement, infringes upon
any United States patent, or any copyright or trade secret of another party; (2)
because of the non-performance or breach by XxXxxxxx or any of its officers,
directors, employees, agents, or subcontractors, of any provision of this
Agreement including, but not limited to, any covenant, representation or
warranty herein; (3) from any acts or omissions of XxXxxxxx or any of its
officers, directors, employees, agents, or subcontractors, that are not in
accordance with this Agreement, including, but not limited to, any violation of
applicable law; (4) from XxXxxxxx'x failure to perform the Services and/or
develop the Work Product set forth in the Work Orders in accordance with the
specifications and schedules contained therein; or (5) from the failure of any
Work Product to be completed at a level commensurate with industry standards,
provided that (a) Farmers promptly provides to XxXxxxxx written notice of any
such claim, and (b) if the claim falls under (1) above, Farmers reasonably
cooperates with XxXxxxxx in the defense or settlement of any such claim or
action. In the event Farmers' use of the Work Product is enjoined by any court
of competent jurisdiction, then XxXxxxxx'x sole liability and Farmers' exclusive
remedy pursuant to this Section 8.3 shall be, at XxXxxxxx'x option, to: (i)
obtain the right to continue the use of the items so enjoined, or (ii) provide
Farmers with substitute items that do not infringe any third party intellectual
property rights and are functionally the equivalent of the enjoined items.
8.4 Services and Work Product. XxXxxxxx represents and warrants that
all Services and the Work Product shall be provided in a workmanlike manner and
in accordance with the Specifications as set forth in the Work Order. XxXxxxxx
shall, at no additional cost to Farmers:
-5-
6
(i) identify the cause of any failure of the Work Product to conform in all
respects to the Specifications (an "Error"); and (ii) make programming changes
to correct the Error.
8.5 Year 2000. XxXxxxxx represents and warrants that the Work Product
delivered under this Agreement is designed to be used prior to, during and after
the calendar year 2000 A.D., and that any software, systems or programs that are
part of the Work Product, including any software, systems or programs created or
modified by third-party vendors of XxXxxxxx, will operate during each such time
period without material error relating to date data including, but not limited
to, any error relating to, or the product of, date data which represents or
references different centuries or more than one century. Without limiting the
foregoing, XxXxxxxx further represents and warrants that: (i) such software,
systems or programs that are part of the Work Product, including any software,
systems or programs created or modified by third-party vendors of XxXxxxxx, will
not abnormally end or provide invalid or incorrect results as a result of date
data, including, but not limited to, date data which represents or references
different centuries or more than one century; (ii) the software, systems, or
programs that are part of the Work Product, including any software, systems or
programs created or modified by third-party vendors of XxXxxxxx, have been
designed to ensure year 2000 compatibility, including, but not limited to, date
data century recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface values that
reflect the century; and (iii) the software, systems or programs that are part
of the Work Product, including any software, systems or programs created or
modified by third-party vendors of XxXxxxxx, include "Year 2000 Capabilities."
For the purposes of this paragraph, "Year 2000 Capabilities" means that such
software, systems or programs:
(i) will manage and manipulate data involving dates, including
single century formulas and multi-century formulas, and will not cause any
abnormally ending scenario within the application or generate incorrect values
or invalid results involving such dates; and
(ii) provide that all date-related user interface
functionalities and data fields include the indication of century; and
(iii) provide that all date-related data interface functionalities
include the indication of century.
XxXxxxxx also represents and warrants that its internal processes and
computer systems including, but not limited to, its software design, shipping,
invoicing, accounts receivable, and internal support systems, are year 2000
compliant to the extent that such processes and/or systems could impact the
performance of XxXxxxxx'x obligations to Farmers under this Agreement.
8.6 Additional Representations and Warranties.
(i) Organization and Good Standing. Each party hereto represents
and warrants that it is a corporation duly organized, validly existing and in
good standing under the
-6-
7
laws of the jurisdiction in which it was formed, has all requisite power to
carry on its businesses as it is now being conducted and is qualified to be do
business in each jurisdiction in which it is required to be so qualified, and is
in good standing in each jurisdiction in which such qualification is necessary
under applicable law.
(ii) Authorization. Each party represents and warrants that
when executed and delivered this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
(iii) No Conflicts. Each party hereto represents and warrants
that the consummation of the transactions contemplated herein, and the
fulfillment of the terms of this Agreement, do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice of lapse of time) a default under, the articles of incorporation or
by-laws of such party, or any indenture, agreement, mortgage, deed of trust, or
other instrument to which such party is a party or by which it is bound, or
violate any law, order, rule or regulation applicable to such party.
(iv) Systems and Personnel. XxXxxxxx represents and warrants
that it has allotted adequate facilities, systems, controls, processes,
computers, programs, software, hardware, plans, policies, procedures, personnel
and other resources to perform the Services and develop the Work Product under
this Agreement in accordance with those standards prevailing in the variable
insurance products industry and in compliance with applicable law.
(v) Litigation. Each party represents and warrants that it is
not subject to any current or pending litigation which would impair its ability
to carry out its responsibilities and obligations under this Agreement.
8.7 DISCLAIMER OF WARRANTY. EXCEPT FOR THE LIMITED WARRANTIES
EXPRESSLY PROVIDED UNDER THIS SECTION, XXXXXXXX EXPRESSLY DISCLAIMS, AND FARMERS
HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9. LIMITATION OF LIABILITY:
NEITHER XXXXXXXX NOR FARMERS SHALL HAVE ANY LIABILITY OF ANY KIND
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL EITHER PARTY'S LIABILITY FOR ANY REASON AND UPON ANY
CAUSE OF ACTION WHATSOEVER EXCEED THREE TIMES THE AMOUNT FARMERS HAS PAID TO
XXXXXXXX WITH RESPECT TO THE SPECIFIC WORK PRODUCT FOR WHICH
-7-
8
SUCH CLAIM IS MADE.
10. PROPRIETARY, CONFIDENTIAL AND TRADE SECRET INFORMATION:
10.1 Ownership of Work Product.
All Work Product, including, but not limited to all software, programs,
models, documentation, source code, and object code, and all rights, title and
interest in and to the Work Product, including, but not limited to, all patent
rights, copyrights, trade secrets, trademarks, service marks and other
proprietary rights inherent therein or appurtenant thereto, created in the
course of performance of services hereunder, shall be the exclusive property of
XxXxxxxx. However, if Farmers purchases from XxXxxxxx a license to use the
VPAS(R) Life Insurance System in the future, XxXxxxxx hereby grants Farmers and
all of its affiliates and exchanges a fully paid, royalty-free, non-exclusive,
and worldwide perpetual license to use the Work Product. If Farmers purchases a
license to use the VPAS(R) Life Insurance System, it agrees that it shall not
sell or disclose the Work Product to any third parties other than its affiliates
and exchanges. XxXxxxxx shall acquire no rights to Farmers' Confidential
Information, all of which is, and shall remain, proprietary to Farmers.
10.2 XxXxxxxx Proprietary Materials. Farmers acknowledges that XxXxxxxx
may use pre-existing XxXxxxxx Proprietary Materials (as defined herein) in the
performance of the Services and in developing the Work Product. XxXxxxxx shall
exclusively retain all title to XxXxxxxx Proprietary Materials, including all
copies thereof and all patent rights, copyrights, trade secrets, trademarks,
service marks and other proprietary rights inherent therein and appurtenant
thereto, and related goodwill and confidential and proprietary information.
Farmers shall not, by virtue of this Agreement, acquire any proprietary rights
whatsoever in XxXxxxxx Property Materials, which shall be the sole and exclusive
property of XxXxxxxx. The "XxXxxxxx Proprietary Materials" shall mean all
proprietary information, data and knowledge furnished or made available by
XxXxxxxx to Farmers and copies thereof, whether in oral, written, graphic
electronic or machine-readable form, including without limitation, source code,
file layouts, report layouts, designs, plans, specifications, flow charts,
techniques, methods, processes, procedures, formulas, discoveries, inventions,
improvements, charts, diagrams, graphs, models, sketches, writings or other
technical data, research or information, and all trade secrets and other
proprietary ideas, concepts, know-how and methodologies.
10.3 XxXxxxxx Confidential and Trade Secret Information. Farmers
acknowledges that the VPAS(R) Life Insurance System (specifically including, but
not limited to, the design, programming techniques, source code and
documentation thereof) are commercially valuable proprietary products of
XxXxxxxx, the design and development of which involved the expenditure by
XxXxxxxx of substantial amounts of money and the use of skilled development
experts over a long period of time. Farmers further acknowledges that the Work
Product (specifically including, but not limited to, the design, programming
techniques, source code and documentation thereof) constitute CONFIDENTIAL
INFORMATION AND TRADE SECRETS which are disclosed to Farmers on a confidential
basis pursuant to this Agreement and are to be
-8-
9
used only for purposes of fulfilling its obligations under this Agreement,
unless Farmers purchases a license to use the VPAS(R) Life Insurance System in
the future as discussed in Section 10.1 above. Farmers shall use all reasonable
precautions to prevent the VPAS(R) Life Insurance System or Work Product from
being acquired by, or disclosed to, unauthorized persons to the same extent that
it protects its own confidential information and trade secrets. Except as
necessary to fulfill the purposes of this Agreement, Farmers shall not make the
Work Product available in any form, to any other party, including, without
limitation, third-party consultants, without the prior written consent to
XxXxxxxx; notwithstanding the foregoing, however, if Farmers purchases a license
to use the VPAS(R) Life Insurance System in the future as discussed in Section
10.1 above, Farmers, its affiliates and its exchanges may use the Work Product.
10.4 Farmers' Confidential and Trade Secret Information. All
information relating to prospects, leads or current variable insurance product
contract owners or policy owners of Farmers acquired by XxXxxxxx shall be the
exclusive property of Farmers. XxXxxxxx acknowledges that it and its employees
may, in the course of performing their responsibilities under this Agreement be
exposed to or acquire information which is proprietary to or confidential to
Farmers or its affiliates or their clients or to third parties to whom Farmers
owes a duty of confidentiality. ANY AND ALL INFORMATION OF ANY FORM OBTAINED BY
XXXXXXXX OR ITS EMPLOYEES IN THE PERFORMANCE OF THIS AGREEMENT SHALL BE DEEMED
TO BE FARMERS CONFIDENTIAL AND PROPRIETARY INFORMATION including, but not
limited to, (i) Farmers' business methods, policies, products, personnel,
operations, systems, financial records, procedures, processes, practices, and
strategies; (ii) all compilation of data, information, or other documents
provided to XxXxxxxx by Farmers; (iii) all information regarding Farmers'
customers and the nature of Farmers' relationship with its customers (iv)
confidential, proprietary or trade secret information submitted by Farmers'
suppliers, consultants or co-venturers or other agents to Farmers for study,
evaluation or use; and (v) any other information concerning Farmers not
generally known to the public. XxXxxxxx agrees to hold such information in
strict confidence and not to copy, reproduce, sell, assign, license, market,
transfer or otherwise dispose of, give or disclose such information to third
parties or to use such information for any purposes whatsoever other than the
provision of services to Farmers as contemplated by this Agreement and to advise
each of its employees who may be exposed to such proprietary and confidential
information of their obligations to keep such information confidential. XxXxxxxx
shall not utilize, or permit to be utilized, its knowledge of Farmers or its
knowledge of Farmers' clients, which is derived as a result of any relationship
created through this Agreement, except to the extent necessary to fulfill the
purposes of this Agreement or except as expressly permitted by the prior written
consent of Farmers.
Confidential information shall not be deemed to include information
which is (1) in or becomes part of the public domain other than by disclosure by
XxXxxxxx in violation of this Agreement, (2) demonstrably known to XxXxxxxx
previously, (3) independently developed by XxXxxxxx outside of this Agreement or
(4) rightfully obtained by XxXxxxxx from third parties. It is understood and
agreed that in the event of a breach of this Section Farmers shall be entitled
to injunctive relief to restrain any such breach, threatened or actual.
-9-
10
10.5 Assistance and Injunctive Relief. In the event Farmers or XxXxxxxx
is made aware of any actual or potential violation of this Section 10, it shall
notify the other immediately and will provide any assistance reasonably
requested by the other in investigating or remedying any actual or potential
violations of this Section 10. The parties acknowledge that in the event of a
breach of this Section 10, the aggrieved party will suffer irreparable harm for
which no adequate remedy at law exists and shall be entitled to injunctive
relief to restrain any such breach, threatened or actual.
11. ASSIGNMENT AND DELEGATION:
Neither party shall assign this Agreement or its rights hereunder other
than to companies controlling, controlled by or under common control with such
party. Nor shall Farmers or XxXxxxxx delegate any of its duties under this
Agreement, without in each instance first obtaining the written consent of the
other party. Any attempt to so assign or delegate without such consent shall be
void and of no force and effect and shall constitute a material breach of this
Agreement. This Agreement shall be binding upon the parties and their permitted
respective assigns or successors in interests.
12. FORCE MAJEURE:
Neither party shall be in default of this Agreement to the extent that
the performance of its obligations under this Agreement is delayed or prevented
by reason of any act of God, fire, natural disaster, accident, act of
government, strike, riot, act of war, restricting legislation, embargo,
blockade, work stoppage, or any other like cause beyond the control of such
party, provided that such causes shall not relieve Farmers of its payment
obligations as set forth in Sections 3 and 4 (except that Farmers shall not be
required to make payments for services not rendered by reason of such a force
majeure condition).
13. ENTIRE AGREEMENT:
This Agreement, together with the Work Orders and Change Requests
attached hereto, constitutes the entire agreement of the parties hereto with
respect to the subject matter herein and supersedes all previous proposals,
communications, writings, advertisements, agreements and understandings, written
or oral, between the parties.
14. MODIFICATIONS:
This Agreement, together with the Work Orders and Change Requests
attached hereto, may not be modified or amended, in whole or in part, except by
written amendment signed by both parties.
-10-
11
15. SEVERABILITY:
In the event that any one or more of the provisions contained in this
Agreement or in any document, instrument or agreement relating hereto, should be
declared invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall not in any way be affected or impaired thereby.
16. COUNTERPARTS:
The Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, and all of which, taken together, shall
constitute one and the same instrument.
17. WAIVER:
The waiver or failure of either party to insist upon strict compliance
with any of the provisions of this Agreement or to exercise any right, in any
respect, provided for herein shall not be deemed a waiver of any provision or
right hereunder. Waiver by a party of any obligation owed to it by the other
party shall not constitute a waiver of any other obligations owed to such party.
18. CHOICE OF LAW AND JURISDICTION:
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of Georgia. Farmers hereby consents to the
sole and exclusive jurisdiction of the appropriate federal or state court in
Atlanta, Xxxxxx County, Georgia.
19. NOTICES:
All notices and other communication provided for under this Agreement
shall be in writing and mailed by United States Certified Mail, Return Receipt
Requested or by a nationally recognized overnight delivery service, delivery
charges paid, to the parties hereto at the addresses set forth above or at such
other address as shall be designated by a party in a written notice to the other
party. Except as expressly stated in this Agreement, all such notices and
communications shall be effective when deposited in the U.S. mail or delivered
to the nationally recognized delivery service, addressed as aforesaid, except
that notices of change of address shall not be effective until received.
20. REMEDIES:
Unless otherwise specified herein, the rights and remedies of both
parties set forth in this Agreement are not exclusive and are in addition to any
other rights and remedies available to the parties at law or in equity.
-11-
12
21. HEADINGS:
The headings of the Sections of this Agreement are inserted for
convenience only and shall not constitute a part hereof or affect in any way the
meaning or interpretation of this Agreement.
22. NO THIRD-PARTY BENEFICIARIES:
The parties agree that this Agreement is for the benefit of the parties
hereto and is not intended to confer any rights or benefits on any third party,
and that there are no third-party beneficiaries as to this Agreement or any part
or specific provision of this Agreement.
23. SURVIVAL:
The obligation of the parties under Sections 2.5, 2.6, 2.7, 3, 4, 8.2,
8.3, 8.4, 8.5, 9, 10.1, 10.2, 10.3, 10.4, 10.5, 11, 13, 17, 18, 20, 22, and 23
of this Agreement shall survive termination of this Agreement.
Farmers New World Life Insurance Company XxXxxxxx Systems, L.L.C.
-----------------------------------
---------------------------------
(Authorized Signature) (Authorized Signature)
-----------------------------------
---------------------------------
(Printed Name and Title) J. Xxxxxx Xxxxxxx, Jr., Vice
Chairman
-----------------------------------
---------------------------------
(Date) (Date)
