Exhibit 10.18
*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
AGENCYPORT INSURANCE SERVICES, INC.
LICENSE AND SERVICES AGREEMENT
KEYONCE(TM) V. 2.0
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This LICENSE AND SERVICES AGREEMENT ("Agreement") for KeyOnce(TM) v. 2.0, is
made and entered into as of this 11th day of June, 2002 ("Effective Date"), by
and between AgencyPort Insurance Services, Inc., a Massachusetts corporation
having offices at 00 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 ("AgencyPort"),
and the company identified below ("Customer" or "Tower").
BACKGROUND
AgencyPort develops and makes available specialized software and related
services for use in the insurance industry. Subject to the terms set forth in
this Agreement, Customer desires to obtain the right to use certain of the
specialized software developed by AgencyPort and to retain AgencyPort to provide
certain related services, and AgencyPort desires to grant Customer such right
and to provide such related services to Customer, as more fully described
herein.
I. DESCRIPTION OF AGREEMENT. This Agreement consists of this Signature Page,
Terms and Conditions, and Exhibits A through G, attached hereto and incorporated
by reference herein.
II. CUSTOMER NOTICE ADDRESS. Notices shall be sent to Customer, pursuant to
Section 16.1 of the Terms and Conditions, as follows:
Customer: Tower Insurance Company of New York
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Address: 000 Xxxxxxxx, 00xx Xxxxx
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Xxxx, Xxxxx Zip: Xxx Xxxx, XX 00000
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Attention: Xxxxxxx Xxx, President and Chief Executive Officer
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Tel. No. 000-000-0000
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Fax No. 000-000-0000
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Email: xxxx@xxxxxx.xxx
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III. CUSTOMER CONTACT. The following contact person of Customer shall be the
primary contact person assigned to AgencyPort and will be available to
AgencyPort pursuant to the terms hereof to facilitate AgencyPort's provision of
the services hereunder:
Contact: Xxxxxxxx Xxxxx
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Customer: Tower Insurance Company of New York
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Address: 000 Xxxxxxxx, 00xx Xxxxx
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Xxxx, Xxxxx Zip: Xxx Xxxx, XX 00000
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Tel. No. 000-000-0000
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Fax No. 000-000-0000
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Email: alopez@twrgrp_com
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AGENCYPORT CONTACT. The following contact person of AgencyPort shall be
the primary contact person assigned to Customer and will be available to
Customer pursuant to the terms hereof to facilitate Customer obtaining the
services hereunder:
Contact: Xxxx Xxxxxxx
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Tel. No. 000-000-0000
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Fax No. 000-000-0000
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Email: xxxxxxxx@xxxxxxxxxx.xxx
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
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IV. AGREEMENT. For good and valuable consideration, the sufficiency of which is
hereby acknowledged, and intending to be legally bound, the parties hereby agree
to all of the terms and conditions in this Agreement. Each of AgencyPort and
Customer further represents and warrants that the information each has provided
is accurate and that this Agreement is executed by its duly authorized
representative.
AGENCYPORT INSURANCE SERVICES, INC. CUSTOMER
By: /s/ Xxxxxxx X. Black By: /s/ Xxxxxxx X. Xxx
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Name: Xxxxxxx X. Xxxxx Xx. Name: Xxxxxxx X. Xxx
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Title: President Title: President & CEO
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Date: Date: 6/11/02
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TERMS AND CONDITIONS
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
1.1. "Acceptance" has the meaning set forth in Section 6.2(a).
1.2. "Acceptance Testing" shall mean testing performed by the Customer
for the purposes of confirming that the Deliverables perform in
accordance with the applicable Specifications in all material respects.
1.3. "Affiliate" shall mean, with respect to either party, any person
or other entity, directly or indirectly through one or more
intermediaries, controlling, controlled by, or under common control
with, such entity.
1.4. "AgencyPort Contingency Plan" means the plan that AgencyPort and
Customer will work together to prepare providing for the continued use
of the Software in the event Customer is entitled to access the
Deposits pursuant to Section 9.7(a).
1.5. "AgencyPort Indemnified Party" has the meaning set forth in
Section 12.2.
1.6. "Agreement" has the meaning set forth on the signature page
hereto.
1.7. "Authorized Users" shall mean individual users, each using a
unique username and password, who are authorized to use the Software
and Tower Modules and for whom the appropriate fees have been paid
pursuant to Addendum 8.1.
1.8. "Consumer Price Index" shall mean the Consumer Price Index for
Education and Communication, Boston, All Urban Consumers (base year
1982-1984=100), published by the United States Bureau of Labor
Statistics of the U.S. Department of Labor.
1.9. "Critical Defect" has the meaning set forth in Exhibit A.
1.10. "Customer Data" has the meaning set forth in Section 7.1.
1.11. "Customer Indemnified Party" has the meaning set forth in Section
12.1.
1.12. "Deliverables" shall mean the Software, Tower Modules and other
deliverables to be provided to Customer in accordance with Exhibit B.
1.13. "Deposits" has the meaning set forth in Section 9.7(a).
1.14. "Development Plan" has the meaning set forth in Exhibit B.
1.15. "Development Environment" means an environment containing the
Software licensed to Tower under this Agreement (for which Tower may
create additional modules through the use of the SDK) and all Tower
Modules.
1.16. "Development Services" means services performed by AgencyPort for
Tower in accordance with Exhibit B.
1.17. "Documentation" shall mean the user, operations and training
manuals for the Software and Tower Modules, as applicable.
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1.18. "Effective Date" has the meaning set forth on the signature page
hereto.
1.19. "Gross Revenue" shall mean, with respect to Section 15, the gross
amount of money received by AgencyPort subject to revenue sharing
pursuant to Section 15, minus any (a) credits for claims and refunds,
(b) sales, excise, use, value-added and other similar taxes (excluding
income taxes), if applicable, and (c) direct costs of proceedings
(including legal counsel) to collect past due invoices.
1.20. "Hosting Environment" shall mean an online, secure hosting
environment hosted by AgencyPort (or a third party retained by
AgencyPort for such purpose) for the purpose of making available to
Authorized Users via the Internet the Software and Tower Modules and
additional modules created by Tower through the use of the SDK.
1.21. "Hosting Equipment" shall mean the server hardware,
server-resident computer software, telecommunications or other network
communications, and other equipment connecting the Hosting Environment
to the World Wide Web, Internet or other suitable communications
services as are commercially reasonable and necessary to provide
Customer with access to the Hosting Environment in accordance with
Exhibit E.
1.22. "Initial Term" shall mean the initial three year period
commencing upon the Effective Date during which AgencyPort shall
provide Support Services to Customer, unless terminated earlier
pursuant to Section 9, as further described in Exhibit A.
1.23. "License" shall mean the license for the Software as further
described in Section 5.1.
1.24. "Major Defect" has the meaning set forth in Exhibit A.
1.25. "Minor Defect" has the meaning set forth in Exhibit A.
1.26. "Professional Services" shall mean services requested by Customer
and rendered by AgencyPort on a time and materials basis (initially $ *
per hour, as may be increased to match any increase in the Consumer
Price Index) which are outside of the scope of Development Services, as
set forth in Exhibit B.
1.27. "Proprietary Information" has the meaning set forth in Section
10.1.
1.28. "Scheduled Maintenance" has the meaning set forth in Exhibit E.
1.29. "SDK" shall mean the AgencyPort's Software Development Kit.
1.30. "Service Interruption" has the meaning set forth in Exhibit E.
1.31. "Software" shall mean the software (in object code form unless
otherwise specified) and products and services constituting the KeyOnce
Software v.2.0, including any Documentation, data and information, the
SDK and related materials, and Updates (collectively, "Software").
1.32. "Specifications" shall mean, (i) with respect to the KeyOnce
Software v. 2.0, the specifications set forth in Exhibit C hereto, (ii)
with respect to any Tower Modules developed hereunder, the
specifications set forth in the applicable Development Plan, and (iii)
with respect to the SDK, the specifications set forth on Exhibit F
hereto.
1.33. "Support Services" has the meaning set forth in Section 3.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
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1.34. "Third Party License Fees" shall mean, for the purposes of
Section 15, any license fee or other compensation paid to AgencyPort
for the development, enhancement, licensing, sublicensing or use of any
product, whether or not hosted by AgencyPort, which incorporates or
uses all or any portion or adaptation of the Tower Modules.
1.35. "Tower Modules" shall mean modules of software jointly developed
and jointly owned by AgencyPort and Customer which can be used with
AgencyPort's Software.
1.36. "Tower Payments" has the meaning set forth in Section 15.1(a).
1.37. "Updates" shall mean revisions to and new versions of the
Software made generally available to all of AgencyPort's customers.
2. HOSTING ENVIRONMENT. Subject to the terms of this Agreement,
AgencyPort, either directly or through the use of third parties
retained by AgencyPort, agrees to provide Customer and Authorized Users
with access to the Hosting Environment in accordance with Exhibit E for
the use of the Software and Tower Modules, unless Hosting services are
otherwise terminated by either party in accordance with Section 9.2.
The parties acknowledge that the Hosting Environment shall initially be
provided by AgencyPort. AgencyPort shall provide Customer with five (5)
days prior written notice in the event that AgencyPort elects to change
the provider of the Hosting Environment, unless the provision of such
written notice is not reasonably practicable.
3. SUPPORT SERVICES. Subject to the terms of this Agreement, AgencyPort
will provide to Customer maintenance and support services ("Support
Services") as expressly set forth in Exhibit A. As a condition to
receiving Support Services, Customer agrees that (i) it shall access
the Software in accordance with the specifications provided by
AgencyPort with respect to client equipment and Internet access; (ii)
if necessary, Customer will allow AgencyPort access to Customer's
facility and equipment at such times as are agreed upon by the parties
to perform diagnosis/problem resolution; (iii) Customer will provide
AgencyPort with all information, documentation, technical assistance
and access reasonably required for AgencyPort to provide Support
Services, including reasonable access to and the assistance of the
contact person set forth on the signature page hereto; and (iv)
Customer will pay all amounts owing hereunder for the Support Services
when due. Customer acknowledges and agrees that AgencyPort shall have
no obligation to perform Support Services with respect to problems
resulting from any module of software developed exclusively by
Customer.
4. DEVELOPMENT SERVICES. Subject to the terms of this Agreement,
AgencyPort will provide to Customer Development Services as expressly
set forth in Exhibit B.
5. GRANT OF LIMITED LICENSE; RESTRICTIONS.
5.1. GRANT OF LICENSE. Subject to the terms of this Agreement
(excluding Customer's obligations with respect to Development Services,
Support Services, Hosting Services and Professional Services), and in
consideration of Customer's obligations hereunder, AgencyPort hereby
grants to Customer a non-exclusive, non-transferable, non-assignable,
royalty-free, license (the "License"), without the right to sublicense
or assign (except to Affiliates, unless such Affiliate is in the
business of developing and licensing software), to use the Software in
the manner set forth in subsections (a) through (e) below. The Software
may incorporate or include certain software, data, information and/or
services developed and licensed to AgencyPort by third parties, in
which case AgencyPort hereby grants to Customer, but only to the extent
necessary, the rights that AgencyPort is permitted to grant under the
license between AgencyPort and the applicable third party, but in no
case more rights or remedies than is granted to AgencyPort pursuant to
such license. Notwithstanding the foregoing, nothing in this Agreement
shall be construed as granting Customer any rights in any software
developed by AgencyPort for a third party or other customer.
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(a) HOSTING. Authorized Users may access the Hosting Environment
for the use of the Software, Tower Modules and other modules created by
Tower through the use of the SDK hosted for the benefit of Customer in
accordance with Exhibit E.
(b) INSTALLATION. If Customer terminates AgencyPort's Hosting
Services in accordance with Exhibit E, during the term of this
Agreement Customer may install a copy of the Software on one or more
servers owned, operated and controlled by it (or by a third party
subject to an agreement containing terms at least as restrictive as the
terms hereof with respect to the confidentiality and use of the
Software and Tower Modules).
(c) REVIEW PURPOSES. Customer may review and study the Software to
advance Customer's understanding of the functionality of the Software
and the degree to which it can be maintained and extended.
(d) JOINTLY DEVELOPED. Customer may use the Tower Modules and SDK
for the purposes of creating additional modules for the Software
consistent with the terms of this Agreement.
(e) ACCESS VIA SDK. Customer agrees that the Software will not be
accessible to Customer for development purposes except through the use
of the SDK. AgencyPort agrees to deliver the SDK to Customer within six
(6) months from the Effective Date of this Agreement and to include
executable code accessed via an application programming interface,
instructions as to how to use such code, and supporting documentation.
The Specifications for the SDK are set forth on Exhibit F hereto.
Customer may use the SDK to create modules for the Software. AgencyPort
agrees to use commercially reasonable efforts to provide additional
functionality to the SDK as reasonably requested by Customer as part of
Professional Services at the rates set forth on Addendum 8.1. Any
modules created exclusively by Customer shall be owned exclusively by
Customer. The SDK will be utilized only in the Development Environment.
5.2. RESERVATION OF RIGHTS. AgencyPort reserves all rights not
expressly granted to Customer herein, and no other rights and licenses
are granted or will be deemed to have been granted hereunder. Except as
expressly set forth in Sections 5.1 and 5.3, Customer does not have the
right to assign, transfer or sublicense to any third party any of the
rights or licenses granted herein provided that Customer shall have the
right to provide access to Authorized Users pursuant to the terms of
this Agreement for use of the Software, Tower Modules and additional
modules created by Tower through the use of the SDK solely in
connection with the distribution of Customer's products.
5.3. RESTRICTIONS ON USE OF SOFTWARE. Customer hereby acknowledges and
agrees that it shall use the Software and Tower Modules solely in
connection with Customer's distribution of Customer's products in
Customer's business operations and shall allow access solely by
Authorized Users. Customer may also allow temporary access to issuing
insurance carriers, reinsurers, government agencies and other entities
that may be evaluating Customer or its Affiliates solely for purposes
of due diligence or required inspection. Customer represents, warrants
and covenants that Customer will not sell, transmit, display, disclose,
divulge, reveal, report, publish or transfer any portion of the
Software to any third party other than employees, agents or
subcontractors of Customer who have obligations of confidentiality and
restrictions consistent with the terms of this Agreement. Customer
shall not reproduce, except as specifically permitted pursuant to this
Agreement, or create derivative works of the Software or any portion
thereof. Customer further represents, warrants and covenants that
neither Customer nor any of its employees, subcontractors or agents nor
Authorized Users will attempt to reverse engineer, reverse assemble,
disassemble, or otherwise attempt to discover the source code of any
element of the Software. To the extent that any source code of the
Software is disclosed to or obtained by the Customer, the Customer
agrees that it shall not use or make any disposition of such source
code in any manner that is not expressly permitted under the terms of
this Agreement, including without limitation, hosting, licensing or
sublicensing software to others in any manner which is competitive with
the business of AgencyPort.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
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5.4. AUTHORIZED USERS. Authorized Users are not permitted to share
usernames/passwords and only one Authorized User may use the
username/password assigned to such user. Customer acknowledges and
agrees further that regardless of the location of the Authorized User
or the method by which said user accesses the Software, the
information, data and materials on the Software and the Software
itself, shall reside only on databases, intranets, wide area networks
and/or local area networks which are controlled and secured by
AgencyPort or Customer, as applicable. Customer shall be responsible
for any damages, costs, or expenses resulting from any breach of this
Agreement by Customer, its employees, officers, subcontractors or
agents and/or by Authorized Users. Customer acknowledges and agrees
that if a person or entity is allowed to use or interact with a program
(including, but not limited to, a marketing web site or a customer
service web site) that is not part of the Software but such use or
interaction of such program involves interacting with the Software,
such use or interaction (i) shall constitute use of the Software and
(ii) shall be subject to the terms and limitations of this Agreement.
5.5. OWNERSHIP. Customer acknowledges and agrees that AgencyPort is and
will at all times remain the exclusive owner of all rights, title and
interests in and to the Software and any and all enhancements and
modifications and derivative works of the Software. The Tower Modules
shall be jointly owned by AgencyPort and Tower, without accounting,
except that (i) Customer agrees that it shall not sell or otherwise
transfer any rights in any of the Tower Modules (except to an Affiliate
that is not in the business of developing and licensing software)
without the prior written consent of AgencyPort; and (ii) AgencyPort
agrees that it shall not sell or otherwise transfer any rights in any
of the Tower Modules without Customer's prior written consent to any
company included in a list of up to twenty (20) competitor companies
which Customer shall be entitled to designate in writing to AgencyPort
annually on the Effective Date, as such list may be amended in writing
by Tower effective after sixty (60) days prior written notice to
AgencyPort, provided however that the restriction set forth in this
Section 5.5(ii) shall not apply to any such company if AgencyPort has
commenced a business relationship with such company prior to the date
of its inclusion on such list. If Tower does not provide such list
AgencyPort agrees that it shall not sell or otherwise transfer any
rights in any of the Tower Modules to any company that is located
within sixty (60) miles of New York City and derives 25% or more of its
gross written premiums from sales to New York City and the following
counties located in greater metropolitan New York City area:
Westchester, Rockland, Duchess, Xxxxxx, Nassau, Suffolk and Orange
County, without the prior written consent of Tower. Notwithstanding the
foregoing, Tower's written consent shall not be required for any sale
or transfer of rights in any of the Tower Modules by AgencyPort which
is the result of an acquisition of substantially all of the assets of
AgencyPort or 51% or more of its capital stock through merger or
otherwise. AgencyPort acknowledges and agrees that Customer is and will
remain the exclusive owner of all Customer Data and any software
modules developed exclusively by Customer. Each party is and will
remain the exclusive owner of its Proprietary Information.
5.6. FURTHER RIGHTS AND OBLIGATIONS. AgencyPort and Customer will have
such further rights and obligations as expressly set forth in the
Exhibits attached hereto and incorporated herein by reference.
6. DELIVERY, INSTALLATION AND ACCEPTANCE TESTING.
6.1. DELIVERY. AgencyPort shall deliver to the Customer the
Deliverables together with related Documentation in accordance with
Exhibit B as such Exhibit B may be modified by any Development Plan.
The Customer may duplicate such Documentation for use solely in
accordance with the terms of this Agreement. In so doing, the Customer
agrees that any copyright and other proprietary notices on such
documentation will be reproduced.
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6.2. ACCEPTANCE TESTING.
(a) The Customer shall, not later than thirty (30) days from
delivery of each Deliverable with respect to a particular development
phase as set forth in Exhibit B or the date set forth in the applicable
Development Plan, complete Acceptance Testing of such Deliverable. Upon
the successful completion of Acceptance Testing, the Customer shall
notify AgencyPort in writing of its acceptance ("Acceptance") of the
Deliverable for the applicable development phase, provided that if
Customer does not so notify AgencyPort within said thirty day period,
Customer shall be deemed to have accepted such Deliverable. The date of
such notification, or the end of the thirty day period, whichever is
earlier, shall be considered the date of Acceptance.
(b) If the Deliverable for any development phase set forth on
Exhibit B, or any portion thereof, fails to pass Acceptance Testing,
the Customer shall notify AgencyPort of such failure. AgencyPort will
consider any such failure a Critical Defect (provided that failure of a
Tower Module to pass Acceptance Testing shall not be deemed a "material
breach" pursuant to Exhibit A) and shall begin work to correct all
deficiencies using the same efforts it would use to correct a Critical
Defect. All corrective work performed by AgencyPort shall be subject to
Acceptance Testing in accordance with this Section 6.2. If a
Deliverable for a development phase still fails Acceptance Testing
after three failures of Acceptance Testing, the Customer may in its
sole discretion: (i) grant AgencyPort additional time to correct the
outstanding deficiencies or (ii) notwithstanding Section 9 and without
prejudice to any of the Customer's other rights and remedies under this
Agreement, any Development Plan or at law or in equity, (A) terminate
this Agreement and/or the relevant Development Plan, as determined by
the Customer in its sole discretion, in which event AgencyPort shall
immediately refund any amounts paid by the Customer to AgencyPort for
Development Services for the six development phases set forth on
Exhibit B, or (B) terminate this Agreement, all Development Plans and
the License granted hereunder, in which event AgencyPort shall
immediately refund all amounts paid for Development Services for the
six development phases set forth on Exhibit B, and refund all amounts
paid as fees for the License upon Tower's termination of its use of the
Software and its transition to alternate software. If a Deliverable
delivered pursuant to any subsequent development phase not set forth on
Exhibit B fails Acceptance Testing as set forth in this Section 6.2(b),
Customer shall be entitled to a refund of amounts paid for Development
Services for such development phase only.
7. CUSTOMER DATA.
7.1. CUSTOMER DATA. In connection with Customer's use of the Hosting
Environment hereunder, Customer and its Authorized Users may provide to
AgencyPort or input into the Software via the Hosting Environment
certain data related to the Customer's business or Authorized User's
business ("Customer Data"). AgencyPort may provide via the Hosting
Environment proprietary reports, data confirmation requests or other
materials to Customer relating to the accuracy of Customer Data in
accordance with the security procedures and directions of Customer.
Customer will be responsible for providing AgencyPort or inputting into
the Software, as mutually agreed upon by the parties, updated and
modified Customer Data as necessary and appropriate, the accuracy of
which will be the sole responsibility of Customer.
7.2. MAINTENANCE OF CUSTOMER DATA. AgencyPort will use diligent efforts
to prevent the loss of or damage to Customer Data in its possession and
will maintain diligent back-up procedures (which provide for Back-up on
at least a daily basis) and copies to facilitate the reconstruction of
any Customer Data that may be lost or damaged by AgencyPort. AgencyPort
will promptly notify Customer of any known loss of or damage to such
Customer Data and shall respond as if such loss of or damage was a
Critical Defect. AgencyPort will use diligent efforts to reconstruct
any Customer Data that is known to have been lost or damaged by
AgencyPort.
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8. FEES; EXPENSES; TERMS OF PAYMENT.
8.1. FEES. In consideration of the rights and licenses granted herein,
Customer agrees to pay the fees set forth in Addendum 8.1, such
payments to be made within 30 days of the date of invoice.
8.2. PAYMENT; LATE FEES. All payments due to AgencyPort hereunder will
be paid in United States dollars. Customer may not withhold any amounts
due hereunder. AgencyPort reserves the right, without limitation, to
(i) deny Customer access to the Hosting Environment upon nonpayment of
fees due for Hosting Services, which nonpayment continues for a period
of 30 days after notice from AgencyPort, (ii) discontinue the provision
of Support Services upon nonpayment of fees due for Support Services,
which nonpayment continues for a period of 30 days after notice from
AgencyPort; (iii) discontinue Development Services upon nonpayment of
fees due for Development Services, which nonpayment continues for a
period of 30 days after notice from AgencyPort; and/or (iv) assert
appropriate liens, for non-payment of any fees then due which
non-payment continues for a period of 30 days after notice from
AgencyPort, until all amounts due are paid in full. AgencyPort further
reserves the right to charge Customer a late payment fee of 1.5% for
each month by which payment is delinquent. Customer agrees to pay any
costs of collection (including reasonable legal and professional fees)
incurred in collecting any amounts due hereunder.
9. TERM AND TERMINATION.
9.1. TERM OF AGREEMENT. This Agreement will be effective as of the
Effective Date and will remain in full force and effect unless
terminated in accordance with Section 9.4.
9.2. TERM OF HOSTING SERVICES. The term of the Hosting services is one
(1) year commencing on the completion of the first phase of
Deliverables at the election of Customer, provided that (i) Customer
may terminate Hosting services upon 30 days advance written notice to
AgencyPort and (ii) AgencyPort may terminate Hosting Services on 120
days advance written notice to Customer. The term for Hosting Services
shall automatically renew for additional one year periods unless
terminated as provided herein.
9.3. TERM FOR SUPPORT SERVICES. AgencyPort shall provide the Support
Services pursuant to this Agreement for the Initial Term of three years
commencing upon the Effective Date, unless terminated earlier as
provided in this Section 9.3. Upon the expiration of the Initial Term,
the term for provision of the Support Services shall automatically
renew but shall be terminable by Customer or AgencyPort upon at least
90 days advance written notice.
9.4. (a) TERMINATION. Notwithstanding any provision herein to the
contrary, each party will have, the right, in addition to any other
rights and remedies available to the party, to immediately terminate
this agreement and the license granted hereunder by written notice to
the other party if (i) the other party breaches any material provision
of this Agreement and, in the case of a breach capable of remedy, fails
to cure such breach within sixty (60) days of the receipt by the
breaching party of written notice specifying the breach and requiring
its remedy; or (ii) the other party (A) becomes insolvent, (B) makes a
general assignment for the benefit of creditors, (C) suffers or permits
the appointment of a receiver for its business and assets, (D) becomes
subject to any proceeding under the bankruptcy or insolvency law,
whether domestic or foreign, and such proceeding is not dismissed
within sixty (60) days, and/or (E) has liquidated, voluntarily or
otherwise.
(b) ADDITIONAL TOWER RIGHT OF TERMINATION. In the event AgencyPort
does not obtain the requisite approval of its stockholders and its
Board of Directors pursuant to Sections 8(e) and 8(f) of the Warrant
Purchase Agreement between AgencyPort and Customer of even date
herewith, Customer shall be entitled to terminate this Agreement and
receive a refund of all amounts paid to AgencyPort hereunder. If
Customer terminates this Agreement as set forth in this Section 9.4(b),
the License and all obligations of the parties hereunder shall
terminate and this Agreement shall be of no further force and effect.
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9.5. EFFECT OF TERMINATION.
(a) Upon any expiration or termination of this Agreement, at a
party's request and option and subject to this Section 9.5, the other
party will either promptly return and provide to the requesting party
all Proprietary Information of the requesting party or destroy all
Proprietary Information of the requesting party. At the option of the
requesting party, an officer of the other party will certify to the
requesting party that the other party has complied with the terms of
the preceding sentence respecting Proprietary Information. AgencyPort
will deliver to Customer the latest version of the Customer Data and
all backups which it has in the Hosting Environment, if any. The
expiration or termination of this Agreement for any reason will not
relieve the parties of any obligation to pay any amount due and owing
prior to the date of expiration or termination and will not affect any
other rights or liabilities of the parties which may have accrued prior
to the date of expiration or termination.
(b) If this Agreement is terminated by AgencyPort for a material
breach by Customer, said termination shall (subject to Section 9.5(d))
terminate the license granted to the Customer hereunder.
(c) If the Customer terminates this Agreement for a material
breach by AgencyPort as described in Section 9.4(a), the termination of
this Agreement by the Customer shall not terminate the license granted
to the Customer hereunder and, notwithstanding Section 9.3(a) and in
addition to all of the Customer's other rights and remedies: (a) the
Customer shall be entitled to retain and use all copies of the Software
in the Customer's possession or control in accordance with the
surviving provisions of this Agreement; and (b) AgencyPort shall
promptly refund to the Customer all prepaid Support Services fees, if
any. In the event Customer terminates this Agreement due to a material
breach by AgencyPort as set forth in this Section 9.5(c), Customer
shall be entitled to use the source code (subject to all surviving
restrictions) of the Software, but only to the extent necessary to
repair any Critical Defect or Major Defect.
(d) If this Agreement is terminated by AgencyPort for a material
breach by the Customer as described in Section 9.5(b), the Customer
shall, subject to using best efforts to cure any such breach, be
entitled to use the Software in the ordinary course of its business for
the period of time, not to exceed six (6) months, required for the
Customer to wind down its current use of the Software or to make a
transition to alternate software or facilities.
(e) With respect to any Development Plan hereunder, the Customer
may terminate any such Development Plan with. or without reason, at any
time immediately upon written notice to AgencyPort. In the event of any
such termination, the Customer shall pay AgencyPort for all work
performed under any such Development Plan in accordance with the terms
and conditions of such Development Plan up to the date of termination,
and AgencyPort shall immediately return or provide to the Customer,
without limitation, copies of all documents, drawings and other items
of whatever nature supplied to AgencyPort by the Customer or developed
by AgencyPort pursuant to such Development Plan.
9.6. SURVIVAL. In addition to such other surviving obligations as are
expressly identified elsewhere in this Agreement, the provisions of
Sections 1, 5.2, 5.3, 5.4, 5.5, 9.5, 9.7(a), 10, 11.4, 12, 13, 15 and
16 will survive any expiration or termination of this Agreement.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
9.7. CONTINGENCY PLANNING.
(a) SOURCE CODE ESCROW. AgencyPort shall deposit with DSI
Technology Escrow Services copies of the source code for the Software
as used by Customer promptly after delivery to Customer (the
"Deposits") pursuant to an escrow agreement substantially in the form
attached hereto as Exhibit G. At Customer's request, AgencyPort shall
provide Customer with written verification from the escrow agent that
all such Deposits have been placed in escrow. In the event (i)
AgencyPort (or its successor in interest with respect to the Software)
(A) becomes insolvent, (B) makes a general assignment for the benefit
of creditors, (C) suffers or permits the appointment of a receiver for
its business and assets, (D) becomes subject to any proceeding under
the bankruptcy or insolvency law, whether domestic or foreign, and such
proceeding is not dismissed within sixty (60) days, and/or (E) has
liquidated, voluntarily or otherwise, or (ii) AgencyPort ceases to
conduct business on an on-going basis leaving no successor in interest
supporting the Software for Customer, Customer shall be entitled to
obtain a copy of the Deposits for the sole purpose and only to the
extent necessary of internally supporting the Software. Customer agrees
that if it receives the Deposits pursuant to this Section, Customer
shall use the same degree of care that it uses to protect its own
similar confidential information, but in no event less than a
reasonable degree of care, and shall use the Deposits solely for its
internal needs to maintain, service, and/or repair the Software.
AgencyPort agrees to promptly update the Deposits, as is commercially
reasonable.
(b) AGENCYPORT CONTINGENCY PLAN. AgencyPort agrees to work with
Customer to help Customer develop an AgencyPort Contingency Plan and to
make reasonably available services requested to assist Customer in the
execution of "dry runs" of the Escrow release process. AgencyPort
agrees to install and set up the Deposits (including source code), and
to allow Tower to install and set up the Deposits, in the Development
Environment for the purposes of testing the AgencyPort Contingency Plan
only. Customer agrees that the source code contained in the Development
Environment shall be used for Contingency Planning purposes only under
the AgencyPort Contingency Plan and such source code shall not be used
during the term of this Agreement to alter or modify the Software in
any way, develop modules for the Software, or in any other manner.
Customer further agrees that it shall not copy or use the Deposits or
any portion thereof outside of the Development Environment without the
previous written consent of AgencyPort. The services to be rendered
under this Section 9.7(b) shall be deemed Professional Services under
Addendum 8.1.
10. CONFIDENTIALITY.
10.1. PROPRIETARY INFORMATION. "Proprietary Information" will mean all
of the information, data and software furnished by one party to the
other in connection with this Agreement including third party
information provided by AgencyPort to the Customer or by the Customer
to AgencyPort. Notwithstanding the foregoing, and excepting any
proprietary financial information, Proprietary Information will not
include information which: (a) is publicly disclosed by the party
disclosing the information either prior to or subsequent to the receipt
of such information by the receiving party; (b) is or becomes generally
known in the trade through no fault of the receiving party; (c) is
lawfully disclosed to the receiving party by a third party who is under
no duty not to disclose such Proprietary Information; (d) is
independently developed by the receiving party or (e) the receiving
party is required to disclose Confidential Information pursuant to a
subpoena, court order or other similar process; provided, however, that
the receiving party hereby stipulates and agrees that, if it seeks to
disclose, deliver, display, divulge, reveal, report, publish or
transfer, for any purpose whatsoever, any Proprietary Information, such
receiving party will bear the burden of proving that any such
information was independently developed or is or became publicly
available without any such breach. Without limiting the generality of
the foregoing, the parties acknowledge and agree that Proprietary
Information will specifically include: (i) the Software; (ii) the
Hosting Environment; (iii) all passwords allowing Customer and its
Authorized Users to access the Hosting Environment and Software; (iv)
any Customer Data; and (v) rate plans. A party's failure to xxxx any
Proprietary Information as confidential, protected or proprietary will
not affect its status as Proprietary Information under this Agreement.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
10.2. TREATMENT OF PROPRIETARY INFORMATION. Each party acknowledges
that, in performing its obligations and exercising its rights
hereunder, a party may acquire the Proprietary Information of the other
party. As a material inducement to the other party to disclose such
Proprietary Information, each party covenants and agrees that it will
not, except with the prior written consent of the other party, at any
time directly by itself or indirectly through any agent or employee:
(i) reproduce, distribute, transmit, publicly display, modify, create
derivative works based upon, or disclose, deliver, display, divulge,
reveal, report, publish or transfer to any person or entity, for any
purpose whatsoever, any Proprietary Information of the other party or
(ii) use Proprietary Information of the other party for any purpose
other than in connection with the performance of its obligations or the
exercise of its rights hereunder. Each party further covenants and
agrees to handle the Proprietary Information of the other party in the
same manner that the party handles its own most confidential
information and, in any event, to take all reasonable steps reasonably
necessary to preserve the confidentiality of Proprietary Information,
including without limitation adopting appropriate confidentiality
policies, inserting appropriate confidentiality terms in agreements
with all employees, subcontractors and Authorized Users, and
maintaining Proprietary Information in a manner designed to assure that
it will not be used or disclosed improperly. AgencyPort further
covenants and agrees to remove from the Tower Modules any of Customer's
Proprietary Information prior to the sale, sublicense or transfer of
any rights to the Tower Modules by AgencyPort.
10.3. REMEDYING UNAUTHORIZED USE. A party will promptly notify the
other party if it becomes aware of any unauthorized use or disclosure
of any Proprietary Information of the other party and will take such
reasonable action as may be reasonably necessary and legally
permissible to terminate or remedy any unauthorized use or disclosure
that results from any act or omission of the party or any of its
employees, subcontractors, Authorized Users or agents.
10.4. INJUNCTIVE RELIEF. Each party acknowledges and agrees that the
disclosing party will suffer irreparable harm in the event of any
breach of the provisions of this Section 10 and that monetary damages
will be inadequate to compensate the disclosing party for such breach.
Accordingly, each party acknowledges and agrees that, in the event of a
breach or threatened breach of any of the provisions of this Section
10, in addition to and not in limitation of any other rights, remedies
or damages available at law or in equity, the disclosing party will be
entitled to a temporary restraining order, preliminary injunction and
permanent injunction in order to prevent or restrain any such breach or
threatened breach.
11. REPRESENTATIONS AND WARRANTIES.
11.1. HOSTING ENVIRONMENT. Notwithstanding any provisions herein to the
contrary, AgencyPort does not warrant that: (i) Customer will at all
times be able to access the Hosting Environment or (ii) Customer's
access to the Hosting Environment will at all times be uninterrupted or
error-free. Customer acknowledges and agrees that data processing and
use of the Hosting Environment entail the likelihood of some human and
machine errors, omissions, delays and losses. In the event that
AgencyPort contracts with a third party to provide or administer the
Hosting Environment, AgencyPort agrees to diligently enforce its rights
with respect to any interruptions or errors with respect to the
provision of such services.
11.2. TITLE AND NON-INFRINGEMENT WARRANTY. AgencyPort warrants that it
has the authority to grant the rights and licenses granted by this
Agreement to Customer. AgencyPort warrants that the use of the Software
and the Tower Modules by the Customer according to the terms of this
Agreement will not infringe any United States patent or United States
copyright of any third party. In the event that a third party alleges
that Customer's access to or use of any portion of the Software or
Tower Modules according to the terms of this Agreement infringes that
third party's United States patent or United States copyright, then
AgencyPort, at its sole option, will either (i) procure for the
Customer the right to continue use of the Software or Tower Module, as
applicable, (ii) replace or modify the Software or Tower Module, as
applicable, so that it is noninfringing without substantially
diminishing its capability as determined by the Customer, or (iii)
replace the same with an equally suitable, functionally equivalent,
compatible non-infringing Software or Tower Module, as applicable. If
AgencyPort determines in its sole discretion that neither (i), (ii) nor
(iii) are economically feasible, AgencyPort may terminate this
Agreement in its entirety upon payment to the Customer of all amounts
paid by the Customer to AgencyPort for the Software, or Tower Module,
as applicable.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
11.3. LIMITED WARRANTY. Customer assumes all responsibility for the
selection of the Software and its appropriate use as intended to
achieve Customer's desired results. AgencyPort warrants that, for a
period of one hundred twenty (120) days after the Acceptance of each
development phase set forth in Exhibit B by Customer, the Software and
Tower Modules will materially conform to the Documentation as published
and operate without a Critical Defect or Major Defect ("Limited
Warranty"). If, at any time during the Limited Warranty period,
Customer discovers a Critical Defect or Major Defect, AgencyPort will
use commercially reasonable efforts to correct such defect and restore
the Software or Tower Module, as applicable, to conformity with the
Limited Warranty. If the alleged defect is not within the scope of the
Limited Warranty, Customer will reimburse AgencyPort for all time
expended in attempting to correct the alleged defect at AgencyPort's
then-prevailing standard labor rates.
11.4. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 11.2 AND
11.3, AGENCYPORT EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE MAXIMUM
EXTENT ALLOWED BY LAW WITH RESPECT TO THE HOSTING ENVIRONMENT, SUPPORT
SERVICES, DEVELOPMENT SERVICES, SOFTWARE, TOWER MODULES, THE LICENSE
GRANTED HEREUNDER, AND ALL OTHER SERVICES AND PRODUCTS PROVIDED
HEREUNDER. AGENCYPORT HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND
(WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY CUSTOM OR TRADE
USAGE), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, DESIGN, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AGENCYPORT
IN PERFORMING ITS OBLIGATIONS HEREUNDER WILL CREATE ANY WARRANTY OR IN
ANY WAY INCREASE THE SCOPE OF THE WARRANTIES MADE BY AGENCYPORT.
12. INDEMNIFICATION.
12.1. AGENCYPORT INDEMNIFICATION. AgencyPort agrees to indemnify and
hold harmless (including reasonable attorney's fees and costs)
Customer, and any employee, director, officer or agent thereof (each of
the foregoing being hereinafter referred to individually as the
"Customer Indemnified Party"), against all liability to third parties
(other than liability solely the fault of the Customer Indemnified
Party) arising from any breach of the express warranty contained in
Section 11.2 hereof, provided, however, that Customer notifies
AgencyPort in writing within ten (10) business days of learning of such
third party claim. AgencyPort, at its sole option, may elect to conduct
the defense of any such third party claim, including without limitation
any settlement thereof, and Customer agrees to cooperate fully with
such defense at AgencyPort's expense.
12.2. CUSTOMER INDEMNIFICATION. Customer agrees to indemnify and hold
harmless (including reasonable attorney's fees and costs) AgencyPort,
and any employee, director, officer or agent thereof (each of the
foregoing being hereinafter referred to individually as the "AgencyPort
Indemnified Party"), against all liability to third parties (other than
liability solely the fault of the AgencyPort Indemnified Party) arising
from Customer's use of the Software, Tower Modules and other modules
created by Tower, other Deliverables or the Hosting Environment,
provided, however, that AgencyPort notifies Customer in writing within
ten (10) business days of learning of such third party claim. Customer,
at its sole option, may elect to conduct the defense of any such third
party claim, including without limitation any settlement thereof, and
AgencyPort agrees to cooperate fully with such defense at Customer's
expense.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
13. LIMITED LIABILITY. NEITHER AGENCYPORT NOR CUSTOMER SHALL BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR
EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION
DAMAGES RESULTING FROM INTERRUPTION OF BUSINESS OR LOSS OF ANTICIPATED
PROFITS, REVENUES, DATA, GOODWILL OR BENEFITS, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM
(E.G., CONTRACT, TORT, WARRANTY OR OTHERWISE) OF ANY LEGAL OR EQUITABLE
ACTION BROUGHT AGAINST AGENCYPORT OR CUSTOMER, AS THE CASE MAY BE. IN
NO EVENT WILL AGENCYPORT'S LIABILITY FOR ANY DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR ANY DEFAULT OF AGENCYPORT HEREUNDER,
REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE AMOUNT OF FEES
ACTUALLY PAID TO AGENCYPORT BY CUSTOMER HEREUNDER. NO LIMITATION OF
AGENCYPORT'S LIABILITY SHALL APPLY WITH RESPECT TO ANY ACTUAL DAMAGES
INCURRED BY CUSTOMER AS A RESULT OF THIRD PARTY CLAIMS BASED ON SECTION
11.2.
14. PUBLICITY. Customer will not use the name or any trademarks, trade
names and service marks of AgencyPort or its licensors, or the name of
any person associated with AgencyPort or its licensors, for any
purpose, including without limitation advertising and marketing,
without the prior written consent of AgencyPort. AgencyPort agrees not
to disclose the identity of the Customer as a customer or prospective
customer of AgencyPort or the existence or nature of the relationship
contemplated by this Agreement; provided, however, that AgencyPort may
use the Customer's name in AgencyPort's business plan and in marketing
materials and in marketing to potential investors, each subject to the
prior written approval from Customer, except as otherwise disclosed
prior to the Effective Date of this Agreement.
15. REVENUE SHARING
15.1. GENERAL.
(a) AgencyPort agrees that it will pay Tower a commission equal to
* % of the Gross Revenue received by AgencyPort from all Third Party
License Fees not subject to 15.1(b) up to a maximum aggregate total of
* % of the aggregate amount of the fees which Tower has paid to
AgencyPort for the License and Development Services (collectively, the
"Tower Payments").
(b) AgencyPort will pay Tower a commission of * % of all Gross
Revenue received by AgencyPort from all Third Party License Fees from
customers introduced by Tower not subject to 15.1 (a) up to a maximum
aggregate total of * % of the Tower Payments. After the commissions
paid to Tower from customers introduced by Tower reaches * % of the
Tower Payments, the rate of commission shall be decreased to * %. Tower
shall also be entitled to a commission of * % of the Gross Revenue
received by AgencyPort from the development, licensing, sublicensing or
use of any Software which does not use or incorporate any Tower Modules
provided that such sales are to customers introduced by Tower. A
customer shall be deemed to have been introduced by Tower if Tower
provides, with the ability to reference Tower as the source of
introduction, a contact name of an individual of such prospective
customer which results in such sales and AgencyPort has not provided
any services to such prospective customer or engaged in any
negotiations with such prospective customer to provide any services
during the 12 months preceding the introduction.
(c) Tower shall be entitled to * % of all revenues derived in the
ordinary course of distributing its products, including, but not
limited to, fees charged by Tower to Authorized Users in connection
with their use of the Software and Tower Modules.
15.2. REVENUE DISTRIBUTION. AgencyPort will distribute any commissions
to which Tower is entitled pursuant to this Section 15 within 30 days
of the end of each calendar quarter, based on the actual receipt of
funds from customers during each such quarter. The amount payable by
AgencyPort for each quarter shall be computed on the basis of Gross
Revenue during such quarter. AgencyPort shall continue to be
responsible for the distribution of commissions to Tower with respect
to contracts executed by customers introduced by Tower within one year
following termination of this Agreement, unless AgencyPort is the
terminating party pursuant to Section 9.4(a).
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
15.3. RESPONSIBILITIES FOR SALES. AgencyPort is responsible for the
fulfillment of orders under this Section 15, including the provision of
all products and services, invoicing and collections. Tower agrees to
provide AgencyPort with reasonable assistance in generating revenues
from the sale or products and services, which incorporate or use the
Tower Modules
15.4. ACCOUNTING; AUDIT.
(a) AgencyPort will provide Tower with a report within 30 days
after the end of each calendar quarter indicating, with respect to each
such quarter: (i) the amount and nature of the products and services
subject to this Section 15 and the identity of the customer; (ii) the
amount of Gross Revenue received from the provision of such products
and services (including amounts deducted from the calculation of Gross
Revenue and (iii) a computation of the distribution of commissions.
Tower will provide AgencyPort with a report within 30 days after the
end of each calendar quarter indicating, with respect to each such
quarter: (i) the amount of the fees charged to Authorized Users; and
(ii) a computation of the distribution of commissions.
(b) Each party shall prepare and maintain complete and accurate
books of accounts and records covering all transactions arising out of
or relating to this Section 15. The other party and its duly authorized
representatives shall have the right to make an examination and audit,
with not less than thirty (30) days written notice, not more frequently
than twice during any twelve (12) month period, of all records and
accounts which could reasonably be expected to contain information
bearing upon the amount of commissions payable under this Agreement.
Each party agrees to retain records containing such information for at
least three (3) years after the submission of the corresponding payment
referenced in this Agreement. Examinations and audits shall be
conducted during regular business hours, shall not unreasonably
interfere with the audited party's normal business and shall last no
longer than three (3) business days. Prior to conducting an
examination, each auditor shall sign any separate confidentiality
agreement reasonably requested by the audited party. The auditors shall
report only to Tower and AgencyPort and only whether there has been any
underpayment or overpayment and, if so, the amount thereof. Prompt
adjustment shall be made by the proper party to compensate for any
errors or omissions disclosed by such examination or audit. Neither
such right to examine and audit nor the right to receive such
adjustment shall be affected by any statement to the contrary appearing
on checks or otherwise unless such statement appears in a letter,
signed by the party having such right, expressly waiving such right and
such letter is delivered to the other appropriate party. The costs of
any such audit shall be borne by the auditing party, unless the results
of the audit shall disclose a deficiency in payments due to the
auditing party of greater than five percent (5%) for the audited
period, in which case the audited party shall bear the costs of the
audit. Except to the extent necessary to establish the auditing party's
right to payment of commissions under this Agreement and then only in a
court of law or other legal proceeding, the auditing party shall hold,
and shall require any third party retained by the auditing party for
the purpose of such audit to hold, all information obtained from the
audited party in the course of any such audit in confidence and shall
not use for its own benefit nor disclose such information to any other
person or entity without the audited party's prior written consent.
16. GENERAL PROVISIONS.
16.1. NOTICES. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed
delivered and received (i) when delivered in person, or (ii) five
business days after being mailed by certified or registered mail,
return receipt requested, (iii) one business day after being sent by a
recognized overnight courier service or (iv) when transmitted by
facsimile, e-mail or other electronic means, provided that the sender
receives confirmation of receipt, addressed as follows:
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
If to Tower, at: Tower Insurance Company of New York
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxx, President and CEO
Tel.: 000-000-0000
Fax: 000-000-0000
Email: xxxx@xxxxxx.xxx
with copy to: Xxxxxx X. Xxxxxxxx, Esq.
XxXxxxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
or, if to AgencyPort, at:
AgencyPort Insurance Services, Inc.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx., President
Tel.: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
with copy to: Eve L. R. Waterfall, Esq.
Peabody & Xxxxxx LLP
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxx@xxxxxxxxxxxxx.xxx
or, in any case, to such other address as the addressee shall
have indicated in a written notice to the other party as
provided herein.
16.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement, together with the
attached Exhibits and Schedules, which are incorporated by this
reference as though fully set forth herein, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior or contemporaneous written or oral
understandings, agreements and communications with respect to such
subject matter. This Agreement may be modified or amended only by a
writing signed by both parties.
16.3. NON-WAIVER. The failure of either party to demand any performance
when due, or to pursue any right or remedy arising from the other
party's non-performance of any obligation, will not waive such party's
right to demand such performance at a later time or stop or otherwise
bar such party from asserting any claims, allegations or causes of
actions, or seeking any remedies that arise from or relate to the other
party's failure to perform.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
16.4. FORCE MAJEURE. AgencyPort will not be liable for any failure of
or delay in performance directly or indirectly caused by acts of
Customer, its agents, employees, or sub-contractors, causes beyond the
control of AgencyPort, including but not limited to acts of God, acts
of the public enemy, acts of the United States, any state or territory
of the United States, or any political subdivision of the foregoing or
the District of Columbia, fire, floods, epidemics, quarantine
restrictions, strikes, civil commotions, freight embargoes, any
unusually severe weather conditions, or defaults of or delays by
Customer's employees, sub-contractors and suppliers.
16.5. GOVERNMENTAL LAWS AND REGULATIONS. To the extent that the
Software and Tower Modules are used for the purpose of complying with
governmental laws, regulations or reporting, Customer will assume all
responsibility for determining that the Software and Tower Modules and
any output from the Software and Tower Modules are accurate and
complete and satisfy any governmental requirements. Customer will place
all applicable copyright notices on any output or reports from the
Software and Tower Modules prior to providing them to any governmental
agency. Customer agrees that it shall not export the Software or Tower
Modules with AgencyPort's prior written consent (which shall not be
unreasonably withheld).
16.6. CHOICE OF LAW; VENUE. This Agreement will be governed by the laws
of The Commonwealth of Massachusetts without regard to its principles
of conflicts of laws. The parties acknowledge and agree that any
litigation arising from or relating to this Agreement will be filed and
prosecuted before a court of competent subject matter jurisdiction in
Boston, Massachusetts. The parties consent to the jurisdiction of such
courts over them, acknowledge to the convenience, efficiency and
fairness of proceeding in such courts, and covenant not to assert any
objection to proceeding in such courts based on the alleged
inconvenience, inefficiency or unfairness of such courts.
16.7. INDEPENDENT CONTRACTORS. Each party and its respective employees
are independent contractors in relation to one another with respect to
all matters arising under this Agreement. Nothing herein will be deemed
to establish a partnership, joint venture, agency, association or
employment relationship between the parties.
16.8. ENFORCEABILITY. If any provision of this Agreement is
unenforceable, the remaining provisions will remain in effect, to be
construed as if the unenforceable provisions were originally deleted.
16.9. HEADINGS. Headings are for reference purposes only and have no
substantive effect.
16.10. ASSIGNMENT. Subject to Section 5.1, neither party shall have the
right to assign this Agreement or any rights, duties or obligations
hereunder to any person, without the prior written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon
the permitted successors, permitted legal representatives, and
permitted assignees of the parties hereto.
16.11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall be one and the same instrument.
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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED Confidential
SEPARATELY WITH THE SEC.
EXHIBIT A
SUPPORT SERVICES
The payment of the Annual Support Services Fee set forth in Addendum 8.1 below
shall entitle Customer to receive AgencyPort Support Services with respect to
the Software consisting of Maintenance (as described below), Defect Correction
(as described below), Training (as described below) and telephone assistance
from AgencyPort via a toll free number for resolution of technical problems and
for operating questions during AgencyPort's normal business hours of 8:30AM to
5:00PM Eastern Time. Response times for all Support Services will vary depending
upon the severity of the problem reported, as determined by AgencyPort in its
reasonable discretion.
MAINTENANCE. AgencyPort agrees to annually provide to Customer, via the Hosting
Environment or otherwise, as applicable, functionality Updates to the Software
to the extent such Updates are provided by AgencyPort to all of its customers
generally for the purpose of maintenance or correction to the Software and
improvements to the Software.
DEFECT CORRECTION. Correction of defects by AgencyPort is conditioned on (i)
Customer's notifying AgencyPort of the claimed defect and furnishing AgencyPort
with adequate supporting documentation and details to substantiate the claim and
assisting AgencyPort in the identification and cause of the defect and (ii) the
problem being capable of reproduction on properly functioning equipment
controlled by AgencyPort and (iii) the problem not being the result of modules
created exclusively by Tower.
AgencyPort will classify and respond to defects as follows:
o A "Critical Defect" is defined as a defect in the Software or a Tower Module,
which causes the Software or such Tower Module, as applicable, to be
inoperable, results in unrecoverable abnormal program termination, or
prevents the Software or such Tower Module, as applicable, from operating
without any commercially reasonable work-around. For Critical Defects, the
AgencyPort support team will begin work within two hours of notification, if
within AgencyPort's regular business hours, or at the beginning of the next
business day, if outside of AgencyPort's regular business hours, and will use
commercially reasonable efforts thereafter during and after regular business
hours until the defect is corrected with a goal of completing all corrections
as quickly as possible after Customer's notice.
o A "Major Defect" is defined as a defect in the Software or a Tower Module
that is identical to a Critical Defect, but for which AgencyPort determines
in its sole discretion that a work-around can be reasonably implemented so
that the Software or such Tower Module, as applicable, materially performs
the principal functions of the Software or such Tower Module, as applicable,
in accordance with the performance description in the user documentation. For
Major Defects, the AgencyPort support team will begin work within one
business day of notification and will use commercially reasonable efforts
thereafter until an acceptable work-around or fix is found with a goal of
completing the work-around as quickly as possible after Customer's notice.
o A "Minor Defect" shall be defined as a defect in the Software or a Tower
Module or user documentation that causes a minor inconvenience to the user,
but that constitutes a deficiency with respect to the applicable user
documentation for the Software or such Tower Module, as applicable. For Minor
Defects, the AgencyPort support team will begin work and use commercially
reasonable efforts to correct the defect within a reasonable period of time
after notification and will keep the customer informed at regular intervals
of the status in remedying Minor Defects.
It shall be deemed a material breach of this Agreement in the event that
AgencyPort shall fail: (a) to correct a Critical Defect or a Major Defect within
five (5) business days three (3) times during any ninety (90) day period;
provided, however, that in the event such Critical Defect or a Major Defect
occurs as a result of an Update, such Critical Defect or a Major Defect in and
of itself shall not be deemed to result in a material breach if AgencyPort,
within a 5-day period, removes such Update and restores the Software to the
state such Software was in immediately prior to such Update; provided, however,
that such restoration shall not relieve AgencyPort of its obligations to provide
such Update subject to and in accordance with this Agreement. Upon the
occurrence of any failure to correct such Critical Defect or a Major Defect in
accordance with the immediately preceding sentence, Customer may in its sole
discretion and without prejudice to any of Customer's other rights and remedies
under this Agreement, any Development Plan, or at law or in equity, terminate
this Agreement and/or the relevant Development Plan, as determined by the
Customer in its sole discretion, in which event AgencyPort shall immediately
refund all amounts paid by the Customer to AgencyPort under the relevant
Development Plan.
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TRAINING SERVICES. AgencyPort agrees to provide seminars at a minimum
semi-annually that will cover systems architecture, the SDK and other topics
related to the Software.
ADDENDUM 8.1: FEES
KEYONCE LICENSE FEE. $ *, due and payable upon execution of this Agreement.
MONTHLY HOSTING FEES. Based on the number of Authorized Users designated by
Tower on the last day of each month as set forth below. Upon delivery of the
Deliverables of phase 1 and election by Tower to have AgencyPort host the
Software, Tower will commence payment of a monthly hosting fee for the number of
Authorized Users for whom usernames and passwords are issued, initially $ * (as
may be adjusted for a greater number of Authorized Users). Tower shall notify
AgencyPort from time to time of the addition or deletion of any Authorized
Users.
----------------- ----------------- ---------------------------------
No. of users Monthly Fee Comments
----------------- ----------------- ---------------------------------
----------------- ----------------- ---------------------------------
0 - 250 $ * Minimum fee
----------------- ----------------- ---------------------------------
250-500 $ *
----------------- ----------------- ---------------------------------
500-1000 $ *
----------------- ----------------- ---------------------------------
1000-2000 $ *
----------------- ----------------- ---------------------------------
2000-3000+ $ * Fees for implementations with
over 3,000 users will vary
----------------- ----------------- ---------------------------------
AgencyPort and Tower agree to work together in good faith to implement a
mutually agreeable resolution in the event Tower's number of Authorized Users
exceeds three thousand (3,000) persons, including, without limitation, payment
by Tower of at-cost amounts necessary for additional hardware and support for
such increased capacity.
AgencyPort agrees to support and assist Tower in implementing hosting in another
environment in the event either party terminates Hosting Services.
ANNUAL SUPPORT SERVICES FEES. There shall be no charge for Support Services
during the first year of this Agreement. Thereafter, an Annual Support Services
Fee shall be due and payable in advance on each annual anniversary of the
Effective date. Such fee shall be $ * on each of the first and second
anniversary of the Effective Date and shall be subject to increase each
anniversary date thereafter by no more than the Consumer Price Index for the
preceding year.
DEVELOPMENT SERVICES FEES. Development Services fees for adding customized
functionality to the Hosting Environment for Customer shall be due and payable
as set forth in Exhibit B.
PROFESSIONAL SERVICES FEES. AgencyPort shall use commercially reasonable efforts
to provide Professional Services, as reasonably requested by Customer, for items
outside the scope of Development Services set forth in Exhibit B. Tower agrees
to pay for Professional Services at $ * /hr. Professional services will be
billed on a time and material basis.
o Anticipated Professional Services may include, without limitation, the
building of the Development Environment, development of the AgencyPort
Contingency Plan, execution of "dry runs" of the Escrow release process,
assistance in the development of a "mock" application in the Development
Environment, and assistance in developing a Tower hosting environment.
Estimated times for the following appear below as a guide only and shall not
be binding.
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o It is estimated that the building of the Development Environment will take 3
days of Professional Services.
o It is estimated that the development of a Contingency Plan will take 3 days
of Professional Services.
o It is estimated that the execution of a dry run of the Escrow release process
will take 5 days of Professional Services.
o It is estimated that assistance in the development of a mock application will
take 5 days of Professional Services.
o It is estimated that assistance in developing a Tower hosting environment
will take 7 days of Professional Services.
o For all other services, AgencyPort and Tower agree to use good faith efforts
to evaluate requests for services as additional statements of work and
determine mutually acceptable fees.
In addition to fees for Professional Services, Tower agrees to pay, reasonable
out-of-pocket expenses such as travel and living expenses incurred by AgencyPort
personnel for required travel, such travel being approved by Customer prior to
the travel occurrence.
ESCROW FEES. Tower agrees to pay $1,000 per year to AgencyPort to cover Escrow
costs, commencing upon the first Deposit with DSI pursuant to Section 9.7(a).
Subject to payment by Tower as set forth in the immediately preceding sentence,
AgencyPort agrees to pay all DSI invoices for the escrow of the Deposits during
the term of this Agreement.
CREDIT FOR WARRANT EXERCISE PRICE. AgencyPort and Tower agree that Tower shall
be entitled to a credit towards fees payable for Development Services and
Support Services in an amount equal to the exercise price of Warrant No. 1
pursuant to Section 2(a)(ii) of the Warrant Purchase Agreement between
AgencyPort and Tower of even date herewith.
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EXHIBIT B
DEVELOPMENT SERVICES
AgencyPort agrees to perform the development services set forth herein
("Development Services") for Customer for no less than an aggregate total of $
*. AgencyPort and the Customer agree to work together to prepare a detailed
description of the Specifications and criteria for Acceptance Testing for each
phase of Development Services outlined below, as the same may be amended by
mutual agreement of the parties, to be set forth in one or more development
plans (each a "Development Plan"). Each Development Plan shall (i) be in writing
signed by duly authorized representatives of each party, (ii) be subject to the
terms and conditions set forth in this Agreement, (iii) include an estimate of
the time, materials and cost associated with completing the Development Plan,
(iv) include Specifications and a detailed description of the work to be
performed by the AgencyPort, and (v) include criteria for Acceptance Testing of
the relevant Tower Modules by the Customer. Additionally, each Development Plan
may provide that the particular Tower Modules at issue may be delivered in
phases.
Tower will make payment of such $ * to AgencyPort according to the fees and
Deliverables schedule set forth below, subject to any relevant Development Plan:
1. AgencyPort agrees to develop and deliver custom Tower Modules. These add-on
modules will include the following functionality to be delivered in phases as
determined by one or more Development Plans.
a. Rating, quoting, and binding for the following lines of business for NY,
NJ & PA:
i. ISO CPP/CFP/CGL (Commercial Package, Mono-Property, & Mono-Liability)
i. ISO HOP/HOS (Homeowners: 1-2 Family & 3-4 Family, & Personal
Liability)
ii. ISO DFP (Dwelling Fire: 1-2 Family & 3-4 Family, & Personal
Liability)
b. AgencyPort will create a custom Tower Module from its ISO BOP, Commercial
Auto (ISO BAP) and WCP modules.
c. Risk clearance with logic using one or more of the following, as mutually
agreed upon by the parties:
i. Insured name
ii. Risk location
iii. FEIN#
iv. SS#
d. Policy administration system interface to Allenbrook Phoenix system
e. Agency management system interface to AMS & Applied Systems
2. AgencyPort agrees to deliver the first Tower Modules as part of phase 1 as
set forth in the Development Plan.
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---------------- -------------- --------------- ---------------------------------- --------------- ---------------
MAJOR EST. START EST. END DATE DELIVERABLES PAYMENT TOTAL
MILESTONES DATE
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 1 (10 6/17/2002 8/30/2002 1. Agency management interface $ * $ *
weeks) to AMS' Sejitta
2. Policy administration $ *
interface to Allenbrook'
Phoenix for CPP
3. Risk clearance
4. Rating quoting and binding $ *
for ISO CPP
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 2 9/2/2002 10/25/2002 1. Agency management interface $ * $ *
(8 weeks) to Applied System.
2. Policy administration $ *
interface to Allenbrook
Phoenix for ISO Homeowners
(HOP/HOS/HOC)
3. Rating and binding for ISO $ *
Homeowners
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 3 10/28/2002 12/6/2002 1. Policy administration $ * $ *
(6 weeks) interface to Allenbrook
Phoenix for ISO Dwelling (DFP)
2. Rating and binding for ISO $ *
Dwelling (DFP)
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 4 12/9/2002 1/17/2003 1. Policy administration $ * $ *
(6 weeks) interface to Allenbrook
Phoenix for ISO Business
Owners (BOP)
2. Rating, quoting and
binding $ * for ISO
Business Owners (BOP)
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 5 1/20/2003 2/14/2003 1. Policy administration $ * $ *
(6 weeks) interface to Allenbrook
Phoenix for Workers
Compensation (WCP)
2. Rating, quoting, and
binding $ * for Workers
Compensation (WCP)
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Phase 6 2/17/2003 3/21/2003 1. Policy administration $ * $ *
(6 weeks) interface to Allenbrook
Phoenix for ISO Commercial
Auto (BAP)
2. Rating, quoting, and
binding $ * for ISO
Commercial Auto (BAP)
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
TOTAL $ *
---------------- -------------- --------------- ---------------------------------- --------------- ---------------
Note: All delivery dates are estimates subject to applicable Development Plans.
* % of Phase 1 Development Services fees ($ * ) is due and payable upon
execution of this Agreement with the balance (no less than $ * ) due upon
delivery and Acceptance of the Phase 1 Deliverables.
3. It is estimated that Phase 2 through Phase 6 will cost an estimated total of
$ * . AgencyPort and Tower mutually agree to re-estimate Phase 2 through
Phase 6 costs at the initiation of each Phase.
4. Tower acknowledges and agrees that Tower shall pay, as incurred, the cost of
any third party consulting services required to deliver the policy
administration system interface to the Allenbrook Phoenix system. Any such
third party consultant shall be subject to Tower's prior written consent.
5. The above estimate is based on the following assumptions and subject to
adjustment as set forth below:
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a. Tower will provide resources to aid in the analysis and testing of the
Software.
b. Tower will provide a project manager to assist AgencyPort throughout the
project. This individual will be the primary contact for the AgencyPort
project manager. He/she will take responsibility for providing support and
resources as needed.
c. The AgencyPort team will report directly to the individual designated as
the Tower Project Manager.
d. A separate 'instance' of the KeyOnce system will be created and dedicated
to Tower Insurance Group.
e. The existing KeyOnce system will be "private-labeled" to create a
Tower-branded version of the Software. AgencyPort's logo will be replaced
by Tower's logo throughout the system, with the exception of "Powered by
KeyOnce" and AgencyPort proprietary notices. Additional look and feel
updates will be discussed during the analysis phases of the project.
f. Duck Creek will be used as the rating engine. The Duck Creek Author will
be deployed at designated Tower desktops.
g. Tower will develop all rate manuscripts using the Duck Creek Author.
h. AgencyPort will work with Tower personnel to finalize requirements. Tower
personnel will be made available within a reasonable time frame to
accomplish. analysis tasks.
i. Tower will provide technical resources to assist AgencyPort throughout the
project, specifically during the definition, development, testing, and
implementation of any interface to Tower systems.
j. The majority of project work will be completed on AgencyPort premises.
Meetings and demonstrations will be conducted at Tower or AgencyPort
offices as mutually determined.
k. AgencyPort is responsible for all hardware and system software
environments for the KeyOnce Hosting Environment including testing and
production. AgencyPort will be responsible for other software, hardware
and development tools, as required and agreed upon by AgencyPort.
l. Timelines outlined above are meant as estimates only.
m. In future phases (after phase 1) Tower will have the option to provide one
developer at any one time to the AgencyPort KeyOnce development team for
Tower specific development projects at Tower's expense. Each such
developer shall be subject to the approval of AgencyPort's Director of
Engineering as a qualified resource. The developer agrees to work in
AgencyPort offices.
n. Tower has the right, consistent with the terms of this Agreement, to
develop separate and distinct, stand-alone, web-based software
applications or components that are independent from the Software which
may be deployed in the same web environment as the Software.
6. If one or more of the above assumptions are incorrect or amended due to a
change by Customer, fees for Development Services will be adjusted.
7. Any development work requested at any time that is outside of the scope
outlined above will be estimated and executed upon after the completion of
the Development Services outlined in this Exhibit B.
8. AgencyPort and Customer agree to use good faith efforts to evaluate requests
submitted as additional statements of work and determine mutually acceptable
increased fees based on such requested revisions.
9. As part of the Development Services with respect to the Tower Modules, prior
to the Acceptance of each such Tower Module, AgencyPort shall provide
training to the Customer according to reasonable terms and conditions to be
mutually agreed upon by the parties hereto prior to the time of any such
training, in the use, operation and maintenance of the Tower Modules
developed hereunder. Each training program, if any, shall be designed and
conducted in a manner so as to enable the Customer's personnel to provide
ongoing training and support for the Customer's employees, agents and
consultants. Training will be conducted at the Customer's offices at times
reasonably requested by the Customer and agreed to by AgencyPort. After
Acceptance of the Tower Modules, training shall be provided in accordance
with Exhibit A.
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EXHIBIT C
KEYONCE FUNCTIONALITY
KeyOnce Software v. 2.0 has the following functionality:
o Offers a web-based, graphical user interface for Tower agents to
electronically quote and submit an application over the internet to Tower
underwriters
o Offers a web-based, graphical user interface for Tower agents to access
product and eligibility information
o Offers a web-based, graphical user interface for Tower agents to bind without
any underwriter intervention
o Provides an integrated, comprehensive rating solution using Duck Creek
Technologies Example Platform
o Offers a web-based, graphical user interface for Tower agents to create
custom proposals and XXXXX forms.
o Provides Tower agents with a Work Queue through a web-based, graphical user
interface to manage submissions and communication with Tower underwriters
o Provides Tower agents with online help and insurance specific information
through a web-based, graphical user interface
o Provides Tower underwriters a web-based, graphical user interface to manage
product information, rates, and eligibility rules.
o Provides Tower underwriters a custom work queue to manage incoming
submissions through a web-based, graphical user interface.
o Provides Tower underwriters a web-based, graphical user interface to automate
follow-up communication with the agent to gather outstanding documentation
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EXHIBIT D
CO-DEVELOPMENT
o Any Tower Modules may be used by either party in any way it deems appropriate
consistent with the terms of this Agreement provided that the confidential
and proprietary information of the other party is not disclosed to a third
party and provided that Tower does not attempt to resell or distribute the
Tower Modules in any way, or use the Tower Modules in any manner which is
competitive with the business of AgencyPort.
o AgencyPort agrees that Tower will-have rights to Tower Modules, for use in
creating additional modules for the Software provided that the enhancements
and modifications are for uses specifically set forth in this Agreement.
o AgencyPort agrees to make reasonably available services requested by Tower to
assist in building a Development Environment that would contain of all
Software licensed to Tower under this Agreement and the Tower Modules, and to
identify the hardware and software components necessary to construct the
Development Environment.
o AgencyPort agrees to grant Tower access to all components in the
Development Environment for review.
o The Development Environment will be built in accordance with AgencyPort
specifications.
o The Development Environment will be accessible only to employees,
subcontractors and agents of Tower on a need-to-know basis.
o Tower agrees to use specific procedures to secure the Development
Environment as put forth by AgencyPort.
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EXHIBIT E
HOSTING SERVICES
1. LIMITATIONS ON USE AND ACCESS. The Software will be accessible only to the
Authorized Users each using an individual username and password set up by
Customer via the Software. AgencyPort will provide to Customer the capability
necessary to set up such passwords and to allow the number of Authorized Users
paid for by Customer to simultaneously access the Software in accordance with
the provisions of this Agreement. Customer represents, warrants and covenants
that Authorized Users will agree to access the Software solely in connection
with Customer's exercise of the rights and licenses granted to it hereunder.
Except as expressly provided in this Agreement and any exhibits attached hereto,
Customer will have no right to access the Software other than through the
Hosting Environment.
2. HOSTING EQUIPMENT; CLIENT COMPUTER. AgencyPort, either directly or through
the use of third parties retained by AgencyPort and at AgencyPort's expense,
will dedicate to Customer such Hosting Equipment connecting the Hosting
Environment to the World Wide Web, Internet or other suitable communications
services as are commercially reasonable and necessary to provide Customer with
access to the Hosting Environment. As between the parties, the Hosting Equipment
will at all times be the property of AgencyPort. Customer, at its sole expense,
will be responsible for providing each Authorized User the equipment, software,
telecommunications connections and any other materials necessary to access the
Internet, except as such materials are provided by Authorized Users.
3. MAINTENANCE OF HOSTING ENVIRONMENT AND SOFTWARE. In order to provide Customer
with commercially reasonable access to the Software, AgencyPort and Customer
will periodically schedule the complete or partial shutdown of the Hosting
Equipment for maintenance, bug fixes, Updates, or other reasons ("Scheduled
Maintenance"), no more than quarterly. AgencyPort will use commercially
reasonable efforts to conduct Scheduled Maintenance during weekends or other off
peak hours. The occurrence of any Scheduled Maintenance will not limit or affect
Customer's obligation to pay AgencyPort the fees due hereunder.
4. SERVICE INTERRUPTIONS. Customer will promptly notify AgencyPort via telephone
or e-mail of any unexpected or unscheduled interruption in the ability of
Authorized Users to access the Hosting Environment ("Service Interruption").
AgencyPort will likewise promptly notify Customer via telephone or e-mail of any
Service Interruption. AgencyPort will respond to any Service Interruption within
two hours of notification if within AgencyPort's normal business hours or at the
beginning of the next business day if outside of AgencyPort's regular business
hours. AgencyPort shall use commercially reasonable efforts thereafter until the
Service Interruption is corrected. The occurrence of any Service Interruption
will not limit or affect Customer's obligation to pay AgencyPort the hosting
fees due hereunder.
5. TOWER HOSTING ENVIRONMENT. Upon termination of the Hosting Services pursuant
to the terms of this Agreement and at the written request of Customer,
AgencyPort shall use commercially reasonable efforts to provide Customer with
the services necessary to design and implement a hosting environment, provided
that such hosting environment shall be for Customer's business operations only
and shall not be used to host the Software in any manner which is competitive
with the business of AgencyPort. Such services shall be deemed Professional
Services under Addendum 8.1, and subject to payment of Professional Services
under Addendum 8.1.
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EXHIBIT F
SDK FUNCTIONALITY
The following functionality and additional functionality as reasonably requested
by Tower and consented to by AgencyPort (which consent shall not be unreasonably
withheld if such additional functionality is commercially reasonable in
AgencyPort's determination) will be included in the AgencyPort SDK:
o A description of the software architecture
o An overview of the AgencyPort Software Framework.
o Descriptions of the different software components
o Descriptions of the interplay/processing of the software components
o Sample source code for all parts of the framework.
o A description of the processing flow
o A description of the source code structure
o A description of the various tools we use in development
o A description of the build and deploy procedure
o Application programming interfaces (API's) for specific parts of the
framework that can be extended for all reasonably requested Tower
functionality that is mutually agreed upon by AgencyPort.
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EXHIBIT G
FORM OF ESCROW AGREEMENT
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