Exhibit 10.36
Software License Agreement
This computer software license agreement ("Agreement") is entered into as of the
21st day of November, 2003, by and between OneShield, Inc. ("Licensor"), a
Delaware corporation with its principal place of business at 000 Xxxxxxxxx Xxxx,
Xxxxxx, XX, and Darwin Professional Underwriters, Inc. a Delaware corporation,
whose principal address is 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx,
00000 ("Licensee").
RECITALS
A. Licensor develops and markets computer software applications for the
insurance industry, including a product known as Dragon; and
B. Licensee desires to acquire a license to use the Software and Documentation
for its own internal use in processing professional D&O, E&O, Medical
Malpractice, Fidelity and Crime, Fiduciary, EPLI, and related professional
liability insurance policies underwritten by Licensee (the "Intended Use") and
Licensor desires to grant Licensee such a license.
THEREFORE, the parties agree as set forth herein.
1. DEFINITIONS
1.1 AUTHORIZED PLATFORM
"Authorized Platform" means the computer or operating system, or both, on
which Licensee is authorized to use the Software pursuant to this
Agreement. A list of the Authorized Platforms is set forth in Schedule A,
attached to this Agreement and incorporated by this reference. As used
herein, the term "Authorized Platform" refers to all Authorized Platforms
included on the aforementioned list.
1.2 DOCUMENTATION
"Documentation," means the user manuals, specifications and other material
listed in Schedule B, attached to this Agreement and incorporated by this
reference, which describe the functionality and use of the Software.
1.3 SOFTWARE
"Software," means the computer program or programs marketed and sold as
Dragon, in object code form only, and the Documentation. Software includes
any Updates and Upgrades and excludes any version of the Software or other
software developed or marketed by Licensor that constitutes a separate
product because of differences in function or features.
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2. LICENSOR'S OBLIGATIONS
2.1 DELIVERABLES
Promptly following the execution of this Agreement, Licensor shall make the
Software available to Licensee in a format appropriate for the Authorized
Platform together with the Documentation (the "Delivery Date").
2.2 IMPLEMENTATION SERVICES
Licensor shall provide Licensee with implementation services in connection
with Licensee's use of the Software according to the Implementation
Services Agreement executed on or about the date of this Agreement.
2.3 SUPPORT AND MAINTENANCE
Licensor shall provide Licensee with technical support in connection with
Licensee's use of the Software according to the Maintenance and Support
Agreement executed on or about the date of this Agreement.
3. GRANT OF LICENSE
3.1 GRANT
Subject to the terms and conditions set forth in this Agreement, Licensor
hereby grants to Licensee, and Licensee accepts, a nonexclusive,
royalty-bearing, nontransferable, perpetual license in the Software, to use
and reproduce the Software exclusively for the Intended Use on the
Authorized Platform and to use the Documentation solely in connection with
Licensee's use of the Software.
3.2 LICENSE RESTRICTIONS
Except as specifically granted in this Agreement, Licensor owns and retains
all right, title, and interest in the Software, Documentation, and any and
all related materials. This Agreement does not transfer ownership rights of
any description in the Software, Documentation, or any related materials to
Licensee or any third party. Licensee shall reproduce, install, and render
the Software operational only on the Authorized Platform and for the
Intended Use. Licensee shall not distribute the Software to any persons or
entities nor shall Licensee sell the Software to any person or make any
other commercial use of the software, provided that, Licensee may allow
access to the Software to other persons and entities for the sole purpose
of facilitating Customer's Intended Use. Licensor shall retain all
copyright and trademark notices on the Software and Documentation and shall
take other necessary steps to protect Licensor's intellectual property
rights.
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4. LICENSE FEES
4.1 LICENSE FEES
In consideration for the License granted to Licensee under this Agreement
the Licensee shall pay Licensor $175,000 (the "License Fee"). Licensee
shall be responsible for all fees, and compliance with terms and conditions
associated with third party software whether such fees are paid directly by
Licensee or indirectly through Licensor. The License Fee shall be due and
payable upon Licensee's acceptance under the Deployment Plan as defined in
the Implementation Services Agreement. Amounts not paid within 10 days of
their due date shall bear interest at the lesser of 1.5% per month or the
highest amount allowed by law.
4.2 TAXES
In addition to other amounts payable under this Agreement, Licensee shall
pay any and all federal, state, municipal, or other taxes, duties, fees, or
withholding currently or subsequently imposed on Licensee's use of the
Software or the payment of the License Fee to Licensor, other than taxes
assessed against Licensor's net income. Such taxes, duties, fees,
withholding, or other charges shall be paid by Licensee or Licensee shall
provide the appropriate authority with evidence of exemption from such tax,
duty, fee, withholding, or charge. If Licensor is required to pay any such
tax, duty, fee, or charge, or to withhold any amount from monies due to
Licensor from Licensee pursuant to this Agreement, Licensee shall promptly
reimburse Licensor any such amounts.
5. TERM AND TERMINATION
5.1 TERM
This Agreement becomes effective on the date first set forth above. Unless
sooner terminated as set forth in Section 5.2, below, the Agreement shall
continue in effect until the expiration of Licensor's rights in the
Software.
5.2 TERMINATION FOR CAUSE
Either party, as applicable, shall have the right, in addition, and without
prejudice to any other rights or remedies, to terminate this Agreement as
follows:
(a) By Licensor, upon 10 days' written notice, if Licensee fails to
pay the amounts due to Licensor pursuant to this Agreement that is not
cured within such 10 days;
(b) By either party, upon 60 days' written notice, if the other party
has committed a material breach of this Agreement, other than failure
to make payments under Section 4, that is not cured within such 60
days; or
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(d) By either party, immediately upon written notice, if (a) all or a
substantial portion of the assets of the other party are transferred
to an assignee for the benefit of creditors, to a receiver, or to a
trustee in bankruptcy, (b) a proceeding is commenced by or against the
other party for relief under bankruptcy or similar laws and such
proceeding is not dismissed within 60 days, or (c) the other party is
adjudged bankrupt.
5.3 RIGHTS ON TERMINATION
Licensor has and reserves all rights and remedies that it has by operation
of law or otherwise to enjoin the unlawful or unauthorized use of Software
or Documentation. On termination, (a) all rights granted to Licensee under
this Agreement cease and Licensee will promptly cease all use and
reproduction of the Software and Documentation and (b) Licensee will
promptly return all copies of the Software to Licensor or destroy all of
Licensee's copies of the Software and so certify to Licensor in writing
within fourteen (14) days of termination. Sections 4.1, 6, 7, and 8 will
survive termination or expiration of this Agreement as will any cause of
action or claim of either party, whether in law or in equity, arising out
of any breach or default.
6. WARRANTIES, DISCLAIMER AND LIMITATIONS
6.1 WARRANTIES
Licensor hereby warrants to Licensee that (a) Licensor is the owner of the
Software and the Documentation or has the right to grant to Licensee the
license to use the Software and Documentation in the manner and for the
purposes set forth in this Agreement without violating any rights of a
third party, (b) that the software is free from material deviations from
the Documentation which significantly impair the Software's Intended Use,
(c) the media containing the Software is free from defects, and (d) the
Software does not contain any program, routine, device, code or
instructions (including any code or instructions provided by third parties)
or other undisclosed feature, including, without limitation, a time bomb,
virus, software lock, drop-dead device, malicious logic, worm, Trojan
horse, that is capable of accessing, modifying, deleting, damaging,
disabling, deactivating, interfering with, or otherwise harming the
Software, any computers, networks, data or other electronically stored
information, or computer programs or systems. OneShield does not warrant
that the Software is free of immaterial bugs or errors.
6.2 DISCLAIMER
THE WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE IN LIEU OF, AND THIS
AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT THE
SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT
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INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE
CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND
(c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
6.3 REMEDIES ON BREACH OF WARRANTY
In the event of any breach of the warranty set forth in Section 6.1,
Licensee's exclusive remedy shall be for Licensor, at licensor's option, to
promptly replace the defective Software or media; or, if Licensor is unable
to replace the defective Software or media within 90 days of notification
by Licensee of a defect, Licensee's sole remedy is to terminate this
Agreement, at which time Licensor will refund the un-amortized portion of
the previously paid License Fee assuming an amortization period equal to
five (5) years.
6.4 LIMITATION OF LIABILITY
LICENSOR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE
OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY
THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A
WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, LICENSOR'S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE
TOTAL AMOUNTS ACTUALLY RECEIVED BY LICENSOR UNDER THIS AGREEMENT, THE
IMPLEMENTATION SERVICES AGREEMENT AND THE SUPPORT AND MAINTENANCE AGREEMENT
FOR THE ONE YEAR PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING
RISE TO SUCH LIABILITY.
7. INDEMNITY
7.1 INFRINGEMENT INDEMNITY
Licensor indemnifies, defends, and holds Licensee harmless from and against
any claims, actions, or demands alleging that the Software infringes any
patent, copyright, or other intellectual property right of a third party.
If use of the Software is permanently enjoined for any reason, Licensor, at
Licensor's option, and in its sole discretion, may (a) modify the Software
so as to avoid infringement; (b) procure the right for Licensee to continue
to use and reproduce the Software and Documentation; or (c) terminate this
Agreement and refund to Licensee the un-amortized portion of the previously
paid License Fees assuming an amortization period equal ten (10) years.
Licensor shall have no obligation under this Section 7.1 for or with
respect to claims, actions, or demands alleging infringement that arise as
a result of (a) the combination of noninfringing items
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supplied by Licensor with any items not supplied by Licensor; (b)
modification of the Software or Documentation by Licensee or by Licensor in
compliance with Licensee's designs, specifications, or instructions; (c)
the direct or contributory infringement of any process patent by Licensee
through the use of the Software; and (d) continued allegedly infringing
activity by Licensee after Licensee has been notified of the possible
infringement.
7.2 OTHER INDEMNITY
Licensee is responsible and indemnifies and holds Licensor harmless for any
and all losses, liability, or damages arising out of, or incurred in
connection with, Licensee's use of the Software pursuant to this Agreement.
Customer's liability under this indemnity shall be capped at the greater of
(i) the limit of any Licensee insurance policy which may apply to such
indemnity and (ii) OneShield's liability cap under this Agreement. Customer
agrees to carry insurance which is customary in its industry.
7.3 CONDITION TO INDEMNIFICATION
Should any claim subject to indemnity be made against Licensor or Licensee,
the party against whom the claim is made agrees to provide the other party
with prompt written notice of the claim. Licensor will control the defense
and settlement of any claim under Section 7.1 and Licensee will control the
defense and settlement of any claim under Section 7.2. The indemnified
party agrees to cooperate with the indemnifying party and provide
reasonable assistance in the defense and settlement of such claim. The
indemnifying party is not responsible for any costs incurred or compromise
made by the indemnified party unless the indemnifying party has given prior
written consent to the cost or compromise.
8. CONFIDENTIALITY
8.1 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation, and all
information relating to the business and operations of the Licensor that
Licensee learns or has learned during or prior to the term of this
Agreement, may be the valuable, confidential, and proprietary information
of the Licensor. Licensor acknowledges that the data and information
relating to the business and operations of the Licensee that Licensor
learns or has learned during or prior to the term of this Agreement, may be
the valuable, confidential, and proprietary information of the Licensee.
During the period this Agreement is in effect, and at all times afterwards,
each party, and its employees, contractors, consultants, and agents, will
(a) safeguard the confidential information of the other party with the same
degree of care that it uses to protect its own confidential information;
(b) maintain the confidentiality of this information; (c) not use the
information except as permitted under this Agreement; and (d) not
disseminate, disclose, sell, publish,
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or otherwise make available the information to any third party without the
prior written consent of the other party.
8.2 LIMITATIONS ON CONFIDENTIALITY RESTRICTIONS
Section 8.1 does not apply to any information that (a) is already lawfully
in the receiving party's possession (unless received pursuant to a
nondisclosure agreement); (b) is or becomes generally available to the
public through no fault of the receiving party; (c) is disclosed to the
receiving party by a third party who may transfer or disclose such
information without restriction; (d) is required to be disclosed by the
receiving party as a matter of law (provided that the receiving party will
use all reasonable efforts to provide the disclosing party with prior
notice of such disclosure and to obtain a protective order therefor); (e)
is disclosed by the receiving party with the disclosing party's approval;
and (f) is independently developed by the receiving party without any use
of confidential information. In all cases, the receiving party will use all
reasonable efforts to give the disclosing party 30 days' prior written
notice of any disclosure of information under this agreement. The parties
will maintain the confidentiality of all confidential and proprietary
information learned pursuant to this Agreement for a period of 5 years from
the date of termination of this Agreement.
8.3 INJUNCTIVE RELIEF FOR BREACH
Licensor and Licensee acknowledge that any breach of Section 8.1 by a
receiving party will irreparably harm the disclosing party. Accordingly, in
the event of a breach, the disclosing party is entitled to promptly seek
injunctive relief in addition to any other remedies that the disclosing
party may have at law or in equity.
9. EXPORT CONTROLS AND RESTRICTED RIGHTS
9.1 EXPORT CONTROLS
The Software, the Documentation, and all underlying information or
technology may not be exported or re-exported into any country to which the
U.S. has embargoed goods, or to anyone on the U.S. Treasury Department's
list of Specially Designated Nationals or the U.S. Commerce Department's
Table of Deny Orders. Licensee shall not export the Software or
Documentation or any underlying information or technology to any facility
in violation of these or other applicable laws and regulations. Licensee
represents and warrants that it is not a national or resident of, or
located in or under the control of, any country subject to such export
controls.
9.2 RESTRICTED RIGHTS
The Software and Documentation are provided with Restricted Rights. Use,
duplication, or disclosure by the U.S. Government is subject to
restrictions as set forth in subparagraph (c)(1) of the Commercial Computer
Software - Restricted
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Rights clause at FAR 52.227-19, subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013, or
subparagraph (d) of the Commercial Computer Software - Licensing at NASA
FAR supplement 16-52.227-86, or their equivalent, as applicable.
10. GENERAL
10.1 ASSIGNMENT
Licensee may not assign, sublicense, or transfer Licensee's rights or
delegate its obligations under this Agreement without Licensor's prior
written consent, which will not be unreasonably withheld. Licensor may not
assign its rights or delegate its obligations under this Agreement without
Licensee's prior written consent, which will not be unreasonably withheld,
provided that Licensor may assign its rights and delegate its obligations
hereunder to an acquirer of all or substantially all of the assets of the
Licensor or to the surviving entity into which Licensor is merged, provided
further, that Licensee may assign its rights and delegate its obligations
hereunder to an acquirer of all or substantially all of the assets of
Licensee or to the surviving entity into which Licensee is merged, unless
such acquirer or surviving entity is, or is an affiliate of, an entity
which is in the top 10 of entities (measured by premium volume or policy
count) for underwriting or servicing insurance policies within the Intended
Use.
This Agreement shall be binding upon the successors and assigns of the
parties to this Agreement.
10.2 ENTIRE AGREEMENT
This Agreement, including all documents expressly incorporated into this
Agreement, constitutes the entire agreement between the parties with
respect to the subject matter contained herein, superseding all previous
agreements pertaining to such subject matter, and may be modified only by
an amendment executed in writing by authorized representatives of both
parties hereto. All prior agreements, representations, statements,
negotiations, understandings and undertakings, whether oral or in writing,
are superseded hereby. Licensee acknowledges that it has not been induced
to enter this Agreement by any representations or statements, oral or
written, not contained in this Agreement. Both parties hereto represent
that they have read this Agreement, understand it, agree to be bound by all
terms and conditions stated herein, and acknowledge receipt of a signed,
true and exact copy of this Agreement.
10.3 WAIVER
Amendments, modifications or supplements to this Agreement shall be
permitted, provided: (1) changes shall be in writing signed by the
authorized representatives of both parties; and (2) changes shall reference
this Agreement and identify the specific articles or sections contained
herein which are amended, modified or supplemented. The failure of either
party to enforce any provision of this
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Agreement shall not be deemed a waiver of the provisions or of the right of
such party thereafter to enforce that or any other provision.
10.4 NOTICES
With the exception of invoices, shipping papers and periodic reports, all
notices, demands, or other communications permitted or required hereunder
shall be deemed to have been sufficient and duly given if in writing,
hand-delivered, sent by facsimile with confirmation of receipt, sent by
First Class Mail, return receipt requested (for all types of
correspondence), postage prepaid, or sent by overnight courier service and
addressed as follows:
To Licensor: OneShield, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Chief Executive Officer
Fax no.: 000-000-0000
To Licensee: Darwin Professional Underwriters, Inc.
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Chief Technology Officer
Fax no.: 000-000-0000
or to such address as the parties may provide to each other in writing from
time to time.
10.5 PUBLICITY
Without the prior written consent of the other party, neither party shall
disclose the terms and conditions of this Agreement, except disclosure may
be made as is reasonably necessary to the disclosing party's bankers,
attorneys, or accountants or except as may be required by law.
10.6 INDEPENDENT CONTRACTOR
Nothing in this Agreement shall be deemed to create an employer/employee,
principal/agent, or joint venture relationship. Neither party shall have
the authority to enter into any contracts on behalf of the other party.
10.7 GOVERNING LAW AND JURISDICTION
The validity, construction, interpretation and performance of this
Agreement shall be governed by and construed in accordance with the laws of
the State of Massachusetts without giving effect to its principles of
conflicts of laws.
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10.8 SEVERABILITY
If any of the provisions of this Agreement shall be invalid or
unenforceability shall not invalidity or unenforceability shall not
invalidate or render unenforceable the entire Agreement but rather the
entire Agreement shall be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of Licensor and Licensee shall be construed and enforced
accordingly.
10.9 ARBITRATION
In the event of any dispute between the parties arising out of this
Agreement, the dispute shall be resolved by arbitration in Boston,
Massachusetts under the rules of the American Arbitration Association by an
arbitrator agreed upon in writing by the parties. In the event the parties
cannot agree upon the choice of an arbitrator, each party shall appoint one
individual representative and the two party representatives shall, between
themselves, chose an arbitrator.
10.10 ATTORNEY FEES
In the event of any dispute between the parties arising out of this
Agreement, the prevailing party shall be entitled, in addition to any other
rights and remedies it may have, to recover its reasonable attorney fees
and costs.
10.11 EFFECTIVE DATE
The effective date of this Agreement shall be date first written above.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date written above.
ONESHIELD, INC.
/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: CEO
---------------------------------
Date: November 21, 2003
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DARWIN PROFESSIONAL UNDERWRITERS, INC.
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: CEO
---------------------------------
Date: November 21, 2003
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