Exhibit 10.37
SOFTWARE AND SERVICES AGREEMENT BETWEEN
DARWIN PROFESSIONAL UNDERWRITERS, INC.
AND
VALLEY OAK SYSTEMS, INC.
This Software and Services Agreement ("Agreement") is dated for convenience the
9th day of November 2004 (the "Effective Date") is made between Darwin
Professional Underwriters, Inc., hereinafter referred to as "Licensee," a
Delaware corporation, located at 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000,
and Valley Oak Systems, Inc, hereinafter referred to as "Contractor" or "VOS," a
California corporation, located at Xxxxxx Ranch 8, 0000 Xxxxxxxxx Xxxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, Licensee wishes to obtain a new claims management system; and,
WHEREAS, Licensee wishes to license certain software from Contractor; and,
WHEREAS, Contractor represents and warrants that it is qualified to provide such
software and services required by Licensee as set forth under this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. TERM OF THE AGREEMENT
Subject to Section 1, the term of this Agreement shall be from the
Effective Date stated above and continue so long as Licensee utilizes a
Maintenance and Support Agreement in accordance with this Agreement. Licensee
shall enjoy a license for the licensed software, as set forth in this License
Grant:
a. Contractor hereby grants Licensee, a nonexclusive, royalty-free, right
and license (the "License") to access and use the Software Product (defined as
including the computer software, and electronic documentation as listed in
Appendix A, and as referenced in the Response to Request For Information dated
June 1, 2004) and the documentation solely for its own internal business
operations. Subject to the terms and conditions of this Agreement, as part of
the License, (i) the Software Product may be accessed and used by the number of
user licenses acquired, and (ii) the Software Product may be accessed and used
for backup, failover, disaster recovery, development, staging, technology
integration and testing.
b. Except as authorized by the Escrow Agreement, Licensee will not permit
any employee or other third party to copy, use, analyze, reverse engineer,
decompile, disassemble, translate, convert, or apply any procedure or process to
the Software Product in order to ascertain, derive, and/or appropriate for any
reason or purpose, the source code or source listings for the Software Product
or any trade secret information or process contained in the Software Product or
remove any product identification, copyright or other notices.
c. Pricing Detail and Payment Terms shall be as set forth in Appendix A.
d. Maintenance and support agreement shall be as set forth in Appendix B,
"Maintenance and Support Agreement."
e. The escrow agreement shall be as set forth in Appendix C, "Escrow
Agreement."
f. The policy interface specifications shall be as set forth in Appendix D,
"Darwin Policy System Interface Specification"
2. LICENSE AND SERVICE FEES
a. Licensee agrees to pay Contractor the License Fees as per the Pricing
Detail as specified in Appendix A.
b. "Production Use" means the capability to use the system in a live
environment (i.e. open new claims, make payments, set reserves, generate
checks).
c. Licensee agrees to pay Contractor for services delivered with the
Software Product according to the rates and schedule listed in the Pricing
Detail as specified in Appendix A. All payments are due thirty (30) days after
receipt of invoice.
3. EFFECTIVE DATE OF AGREEMENT
This Agreement shall become effective as of the execution of this agreement
by both parties, and will be effective unless either party is in material breach
of this Agreement and fails to cure said breach within thirty (30) days of
written notice of said breach. Should Licensee cease utilizing VOS maintenance
and support, the License shall remain valid but further available support,
updates and upgrades shall no longer be assured. Any effort to return to a VOS
Maintenance and Support Agreement shall be the subject of a new agreement.
4. ACCEPTANCE TESTING
Implementation of the Software Product shall occur in two phases, as
specified in Appendix A. Licensee shall have a period of fifteen (15) business
days from the date of installation of the portion of the Software Product that
is included as part of Phase I ("Phase I Acceptance Testing Period") to verify
that such portion of the Software Product performs (1) to the specifications
contained in this agreement and (2) in accordance with Contractor's Response to
Request for Information dated June 1, 2004, as such Response specifically
relates to the Phase I components. Similarly, Licensee shall have a period of
fifteen (15) business days from the date of installations of the portion of the
Software Product that is included as part of Phase II ("Phase II Acceptance
Testing Period") to verify that such portion of the Software Product
substantially performs (1) to the specifications contained in this Agreement and
(2) in accordance with Contractor's Response to Request for Information dated
June 1, 2004 as such Response specifically relates to the Phase II components.
In the event that Licensee determines that the Software Product does not meet
such specifications, Licensee shall notify the Contractor in writing by a-mail
and express mail (any overnight delivery service is acceptable), and Contractor
shall modify or correct the Software Product so that it meets such
specifications. The date of Acceptance will be that date upon which Licensee
provides Contractor with written notice of satisfactory completion of acceptance
testing. If Licensee does not notify Contractor of its
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acceptance within the Acceptance Testing Period, the Software Product will be
considered accepted by Licensee.
5. LIMITED WARRANTY
Contractor warrants that it has title to the Software and the authority to
grant license to use the Software. Contractor warrants that the Software will
perform substantially in accordance with the Documentation for as long as
Contractor continues to support the version of the Contractor Software Product
in use at Darwin and Darwin subscribes to Contractor's Software Maintenance and
Support Services.
6. PAYMENT; INVOICE FORMAT
Invoices furnished by Contractor under this Agreement shall be in a form
acceptable to Licensee and agreed upon in advance of services rendered pursuant
to this Agreement.
Payment shall be made by Licensee to Contractor at the address specified in
the section entitled "Notices to the Parties."
7. COMPLIANCE WITH CALIFORNIA AND FEDERAL REGULATIONS:
Contractor, including its officers, employees and agents, must maintain all
licenses and certifications required by the State of California or other
jurisdictions material to this Agreement at all times while performing services
under this Agreement. This project is subject to all applicable laws, rules and
regulations.
8. TAXES
Licensee shall pay to Contractor the use tax (if any is applicable)
relating to the taxable purchases of services under this Agreement at the
appropriate rate. Contractor and Licensee shall cooperate to properly calculate
any applicable taxes. Taxes payable under this Agreement will be added to the
prices payable by Licensee to Contractor, as applicable, as a separately stated
line item on each invoice, and submitted to Licensee at the time Contractor
seeks payment, in accordance with this Agreement, of the applicable services. If
Licensee asserts in writing that such fees are not subject to tax and provides
reasonable support for its conclusions or provides Contractor with an exemption
certificate, Contractor will refrain from collecting and remitting any taxes
with respect to any fees charged pursuant to this Agreement.
9. PAYMENT DOES NOT IMPLY ACCEPTANCE OF WORK
The granting of any payment by Licensee, or the receipt thereof by
Contractor, shall in no way lessen the liability of Contractor to replace
unsatisfactory work, equipment, or materials, although the unsatisfactory
character of such work, equipment or materials may not have been apparent or
detected at the time such payment was made. Materials, equipment, components, or
workmanship that does not conform to the requirements of this Agreement may be
rejected by Licensee and in such case must be replaced by Contractor without
delay.
10. QUALIFIED PERSONNEL
Work under this Agreement shall be performed only by competent personnel
under the supervision of and in the employment of Contractor. Contractor will
comply with Licensee's
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reasonable requests regarding assignment of personnel, but all personnel,
including those assigned at Licensee's request must be supervised by Contractor.
Contractor shall commit adequate resources to complete the project within the
project schedule specified in this Agreement.
11. RESPONSIBILITY FOR EQUIPMENT
Licensee shall not be responsible for any damage to persons or property as
a result of the use, misuse or failure of any equipment used by Contractor, or
by any of its employees, even though such equipment may be furnished, rented or
loaned to Contractor by Licensee.
12. INDEPENDENT CONTRACTOR; PAYMENT OF TAXES AND OTHER EXPENSES
a. Independent Contractor: Contractor or any agent or employee of
Contractor shall be deemed at all times to be an independent contractor and is
wholly responsible for the manner in which it performs the services and work
requested by Licensee under this Agreement. Contractor or any agent or employee
of Contractor is liable for the acts and omissions of itself, its employees and
its agents. Nothing in this Agreement shall be construed as creating an
employment or agency relationship between Licensee and Contractor or any agent
or employee of Contractor.
Any terms in this Agreement referring to direction from Licensee shall be
construed as providing for direction as to policy and the result of Contractor's
work only, and not as to the means by which such a result is obtained. Licensee
does not retain the right to control the means or the method by which Contractor
performs work under this Agreement.
b. Payment of Taxes and Other Expenses: Should Licensee, in its discretion,
or a relevant taxing authority such as the Internal Revenue Service or the State
Employment Development Division, or both, determine that Contractor is an
employee for purposes of collection of any employment taxes, the amounts payable
under this Agreement shall be reduced by amounts equal to both the employee and
employer portions of the tax due (and offsetting any credits for amounts already
paid by Contractor which can be applied against this liability). Licensee shall
then forward those amounts to the relevant taxing authority.
Should a relevant taxing authority determine a liability for past services
performed by Contractor for Licensee, upon notification of such fact by
Licensee, Contractor shall promptly remit such amount due or arrange with
Licensee to have the amount due withheld from future payments to Contractor
under this Agreement (again, offsetting any amounts already paid by Contractor
which can be applied as a credit against such liability).
A determination of employment status pursuant to the preceding two
paragraphs shall be solely for the purposes of the particular tax in question,
and for all other purposes of this Agreement, Contractor shall not be considered
an employee of Licensee, Notwithstanding the foregoing, should any court,
arbitrator, or administrative authority determine that Contractor is an employee
for any other purpose, then Contractor agrees to a reduction in Licensee's
financial liability so that Licensee's total expenses under this Agreement are
not greater than they would have been had the court, arbitrator, or
administrative authority determined that Contractor was not an employee.
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13. INSURANCE
a. Without in any way limiting Contractor's liability pursuant to the
"Indemnification" section of this Agreement, Contractor must maintain in force,
during the full term of the Agreement, insurance in the following amounts and
coverages:
(1) Workers' Compensation, in statutory amounts, with Employers'
Liability Limits not less than $1,000,000 each accident; and
(2) Commercial General Liability Insurance with limits not less
than $1,000,000 each occurrence Combined Single Limit for Bodily
Injury and Property Damage, including Contractual Liability, Personal
Injury, Products and Completed Operations; and
(3) Commercial Automobile Liability Insurance with limits not
less than $1,000,000 each occurrence Combined Single Limit for Bodily
Injury and Property Damage, including Owned, Non-Owned and Hired auto
coverage, as applicable.
b. Commercial General Liability and Business Automobile Liability Insurance
policies must provide the following:
(1) Name as Additional Insured Licensee, its Officers, Agents,
and Employees.
(2) That such policies are primary insurance to any other
insurance available to the Additional Insureds, with respect to any
claims arising out of this Agreement, and that insurance applies
separately to each insured against whom claim is made or suit is
brought.
c. All policies shall provide thirty (30) days' advance written notice,
except for ten days for non-payment of premium, to Licensee of cancellation
mailed to the following address:
Chief Legal Officer
Darwin Professional Underwriters
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
d. Should any of the required insurance be provided under a claims-made
form, Contractor shall maintain such coverage continuously throughout the term
of this Agreement and, without lapse, for a period of three years beyond the
expiration of this Agreement, to the effect that, should occurrences during the
contract term give rise to claims made after expiration of the Agreement, such
claims shall be covered by such claims-made policies.
e. Should any of the required insurance be provided under a form of
coverage that includes a general annual aggregate limit or provides that claims
investigation or legal defense costs be included in such general annual
aggregate limit, such general annual aggregate limit shall be double the
occurrence or claims limits specified above.
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f. Should any required insurance lapse during the temi of this Agreement,
requests for payments originating after such lapse shall not be processed until
Licensee receives satisfactory evidence of reinstated coverage as required by
this Agreement, effective as of the lapse date. If insurance is not reinstated,
Licensee may, at its sole option, terminate this Agreement effective on the date
of such lapse of insurance.
g. Before commencing any operations under this Agreement, Contractor must
furnish to Licensee certificates of insurance, and additional insured policy
endorsements, in form and with insurers satisfactory to Licensee, evidencing all
coverages set forth above, and shall furnish complete copies of policies
promptly upon Licensee's request.
h. Approval of the insurance by Licensee shall not relieve or decrease the
liability of Contractor hereunder.
14. INDEMNIFICATION
General Indemnification. Without limiting the other indemnity provisions of
this Agreement, and except as set forth in section 11. "Responsibility for
Equipment," either party shall defend the other party, its Affiliates and each
of their respective officers, directors, employees and agents (the "Indemnified
Parties") from and against any and all claims, suits or other proceedings,
whether threatened or filed resulting from or based on a claim (a) that the
negligence of either party's personnel caused bodily injury or damage to
property, including Software and data, or (b) resulting from any breach by
either party of this Agreement. Either party shall indemnify and hold harmless
the Indemnified Parties from and against any and all liabilities, losses,
damages, judgments, awards, fines, penalties, costs and expenses (including
reasonable attorneys' fees and defense costs) incurred by or levied against such
parties as a result of such claims.
Intellectual Property Indemnification. Contractor shall indemnify and hold
Licensee harmless from all loss and liability, including attorneys' fees, court
costs and all other litigation expenses for any infringement of the patent
rights, copyright, trade secret or any other proprietary right or trademark, and
all other intellectual property claims of any person or persons in consequence
of the use by Licensee, or any of its officers or agents, of articles or
services to be supplied in the performance of this Agreement.
If notified promptly in writing of any judicial action brought against
Licensee based on an allegation that Licensee's use of the Software Product
infringes a patent, copyright, or any right of a third party or constitutes
misuse or misappropriation of a trade secret or any other right in intellectual
property (Infringement), Contractor will hold Licensee harmless and defend such
action at its own expense. Contractor will pay the costs and damages awarded in
any such action or the cost of settling such action, provided that Contractor
shall have sole control of the defense of any such action and all negotiations
or its settlement or compromise. If notified promptly in writing of any informal
claim (other than a judicial action) brought against Licensee based on an
allegation that Licensee's use of the Software Product constitutes Infringement,
Contractor will pay the costs associated with resolving such claim and will pay
the settlement amount (if any), provided that Contractor shall have sole control
of the resolution of any such claim and all negotiations for its settlement.
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In the event a final injunction is obtained against Licensee's use of the
Software Product by reason of Infringement, or in Contractor's opinion,
Licensee's use of the Software Product is likely to become the subject of
Infringement, Contractor may at its option and expense: (a) procure for Licensee
the right to continue to use the Software Product as contemplated hereunder, (b)
replace the Software Product with a non-infringing, functionally equivalent
substitute Software Product, or (c) suitably modify the Software Product to make
its use hereunder noninfringing while retaining functional equivalency to the
unmodified version of the Software Product. If none of these options is
reasonably available to Contractor, then the applicable Agreement or relevant
part of such Agreement may be terminated at the option of either party hereto
and Contractor shall refund to Licensee all amounts paid under this Agreement
for the license and maintenance fees of such infringing Software Product. Any
unauthorized modification or attempted modification of the Software Product by
Licensee or any failure by Licensee to implement any improvements or updates to
the Software Product, as supplied by Contractor, shall void this indemnity
unless Licensee has obtained prior written authorization from Contractor
permitting such modification, attempted modification or failure to implement.
Contractor shall have no liability for any claim of Infringement based on
Licensee's use or combination of the Software Product with products or data of
the type for which the Software Product was neither designed nor intended to be
used.
15. LIMITATION OF LIABILITY; EXCLUSIVE REMEDIES
15.1 EXCEPT FOR LICENSEE'S PAYMENT OBLIGATIONS HEREUNDER, LICENSEE SHALL
HAVE NO LIABILITY TO CONTRACTOR OR ITS SUBCONTRACTORS FOR ANY BREACH OR
TERMINATION OF THIS AGREEMENT.
15.2 EXCEPT FOR WILLFUL AND INTENTIONAL ACTS, AND EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT WITH RESPECT TO INDEMNITY, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS, LOSS OF USE OF SERVICES, COST OF
CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, OR DAMAGES AND EXPENSES
ARISING OUT OF THIRD PARTY CLAIMS.
15.3 THE REMEDIES SPECIFIED IN THIS AGREEMENT ARE EXCLUSIVE.
16. DISPUTES
16.1. Any dispute arising out of or relating to this Agreement, or breach
thereof, shall be first submitted to the senior management of each party for
resolution. If the dispute cannot be resolved within thirty (30) days after such
matter is referred to senior management, then the dispute shall be submitted to
binding arbitration in California in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") then in effect. All
discovery must be concluded within sixty (60) days after the submission to
arbitration. The decision of the arbitrator shall be final and may be entered as
judgment in any court of competent jurisdiction. The losing party, as determined
by the arbitrator, shall pay the administrative costs of arbitration. Each party
shall bear the cost of its own attorneys' fees.
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16.2. Except as provided in the Termination provisions herein, Contractor
or its Subcontractors shall not stop work on the Project, due to a dispute.
17. DEFAULT; REMEDIES
a. Each of the following shall constitute an event of default ("Event of
Default") under this Agreement:
(1) Contractor fails or refuses to perform or observe any
material term, covenant or condition contained in this Agreement, and
such default continues for a period of thirty (30) days after written
notice thereof from Licensee to Contractor.
(2) Contractor (a) is generally not paying its debts as they
become due, (b) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy or for liquidation or
to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, (c) makes an assignment for the
benefit of its creditors, (d) consents to the appointment of a
custodian, receiver, trustee or other officer with similar powers of
Contractor or of any substantial part of Contractor's property or (e)
takes action for the purpose of any of the foregoing, (3) A court or
government authority enters an order (a) appointing a custodian,
receiver, trustee or other officer with similar powers with respect to
Contractor or with respect to any substantial part of Contractor's
property, (b) constituting an order for relief or approving a petition
for relief or reorganization or arrangement or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy,
insolvency or other debtors' relief law of any jurisdiction or (c)
ordering the dissolution, winding-up or liquidation of Contractor.
b. On and after any Event of Default, Licensee shall have the right to
exercise its legal and equitable remedies, including,, the right to terminate
this Agreement or to seek specific performance of all or any part of this
Agreement.
18. TERMINATION
18.1. TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either party may
terminate this Agreement upon written notice if the other party materially
breaches this Agreement and fails to cure such breach within thirty (30) days
following receipt of written notice specifying the breach in detail; provided,
however, Licensee may terminate Maintenance Services only if Contractor
materially breaches the provisions of the Maintenance and Support Agreement and
fails to cure, or to begin in good faith to cure, the breach within sixty (60)
days following written notice from Licensee specifying the breach in detail. In
the event of termination of Maintenance Services, Licensee shall be liable only
for payment for Maintenance Services through the termination date and shall
receive a pro-rata refund of any unused prepaid fees.
18.2. EFFECT OF TERMINATION. Termination of this Agreement shall not limit
either party from pursuing other remedies available to it, including injunctive
relief, nor shall
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such termination relieve Licensee of its obligation to pay all fees that have
accrued or are otherwise owed by Licensee under any order form. The parties'
rights and obligations under Sections 7, 8, 12, 14, 15, 16, 17, 19, 21 and 23
shall survive termination of this Agreement.
19. HANDLING OF PROGRAMS UPON TERMINATION
a. If a software license granted under this Agreement terminates, Licensee
shall (i) cease using the applicable Software Product, documentation, and
related Confidential Information of Contractor, and (ii) certify to Contractor
within thirty (30) days after termination that Licensee has destroyed, or has
returned to Contractor, the Software Product, documentation, related
Confidential Information of Contractor, and all copies thereof, whether or not
modified or merged into other materials.
b. Subject to the immediately preceding subsection (a), upon termination of
this Agreement prior to expiration of the term specified in Section 2, this
Agreement shall terminate and be of no further force or effect. Contractor shall
transfer title to Licensee and deliver in the manner and at the time and to the
extent, if any, directed by Licensee, any converted data, layouts, reports
generated using Licensee data and other deliverables produced as part of this
Agreement. The iVOS application shall remain the property of Contractor. This
subsection shall survive termination of this Agreement.
20. CONFLICT OF INTEREST
Through its execution of this Agreement, Contractor acknowledges that it is
familiar with the provisions of Licensee's Charter and certifies that it does
not know of any facts, which constitute a violation of said provisions.
21. PROPRIETARY OR CONFIDENTIAL INFORMATION OF LICENSEE
Contractor understands and agrees that, in the performance of the work or
services under this Agreement or in contemplation thereof, Contractor may have
access to private or confidential information, which may be owned or controlled
by Licensee and that such information may contain proprietary or confidential
details, the disclosure of which to third parties may be damaging to Licensee.
Contractor agrees that all information disclosed by Licensee to Contractor shall
be held in confidence and used only in performance of the Agreement. Contractor
shall exercise the same standard of care to protect such information as a
reasonably prudent, and as Contractor would use to protect its own proprietary
data.
22. NOTICES TO THE PARTIES
Unless otherwise indicated elsewhere in this Agreement, all written
communications sent by the parties may be by U.S. mail, e-mail or by fax, and
shall be addressed as follows:
To Licensee: Chief Legal Officer
Darwin Professional Underwriters
00 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
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To Contractor: President, Valley Oak Systems
Xxxxxx Ranch 8,
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Any notice of default must be sent by registered mail or Federal Express,
signature required.
23. OWNERSHIP OF RESULTS
23.1. Products. As between the parties, and subject to the teens and
conditions of this Agreement and the applicable Scope of Work, VOS and its
suppliers shall retain ownership of all intellectual property rights in all
Software provided to Licensee ("VOS Proprietary Technology"). Licensee acquires
no rights to VOS Proprietary Technology except for the licensed interests
granted under this Agreement or any Scope of Work.
23.2. Licensee. Licensee is the sole and exclusive owner of all data and
information provided to VOS by or on behalf of Licensee for processing, and any
and all updates or modifications thereto or derivatives thereof made by VOS
("Licensee Data"), and all intellectual property rights in the foregoing,
whether or not provided to any other party under this Agreement. Licensee Data
will be Licensee's Confidential Information tinder this Agreement. VOS shall not
use Licensee Data for any purpose other than that of rendering the Services
under this Agreement, nor sell, assign, lease, dispose of or otherwise exploit
Licensee Data. VOS shall not possess or assert any lien or other right against
or to Licensee Data,
23.3. Trademarks. Nothing in this Agreement shall grant any party any
ownership interest, license or other right to any other party's trade names,
trademarks or service marks.
24. RESERVED
25. AUDIT AND INSPECTION OF RECORDS
Contractor agrees to maintain and make available to Licensee, during
regular business hours, accurate books and accounting records relating to its
work under this Agreement. Contractor, with prior written notice, will permit
Licensee to audit, examine and make excerpts and transcripts from such books and
records, and to make audits of all invoices, materials, payrolls, records or
personnel and other data related to all other matters covered by this Agreement,
whether funded in whole or in part tinder this Agreement. Contractor shall
maintain such data and records in an accessible location and condition for a
period of not less than three years after final payment under this Agreement or
until after final audit has been resolved, whichever is later.
26. SUBCONTRACTING
Contractor is prohibited from subcontracting this Agreement or any part of
it unless such subcontracting is first approved by Licensee in writing. Neither
party shall, on the basis of this Agreement, contract on behalf of or in the
name of the other party. An agreement made in violation of this provision shall
confer no rights on any party and shall be null and void.
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27. ASSIGNMENT
The services to be performed by Contractor are personal in character and
neither this Agreement nor any duties or obligations hereunder may be assigned
or delegated by the Contractor unless first approved by Licensee, which approval
shall not be unreasonably withheld, by written instrument executed and approved
in the same manner as this Agreement.
28. NON-WAIVER OF RIGHTS
The omission by either party at any time to enforce any default or right
reserved to it, or to require performance of any of the terms, covenants, or
provisions hereof by the other party at the time designated, shall not be a
waiver of any such default or right to which the party is entitled, nor shall it
in any way affect the right of the party to enforce such provisions thereafter.
29. MODIFICATION OF AGREEMENT
This Agreement may not be modified, nor may compliance with any of its
terms be waived, except by written instrument executed and approved in the same
manner as this Agreement
30. AGREEMENT MADE IN CALIFORNIA; VENUE
The formation, interpretation and performance of this Agreement shall be
governed by the laws of the State of California. Venue for all litigation
relative to the formation, interpretation and performance of this Agreement
shall be in California,
31. CONSTRUCTION
All paragraph captions are for reference only and shall not be considered
in construing this Agreement.
32. ORDER OF PRECEDENCE
In the event of a conflict between the specific language set forth in this
Agreement and any Attachment Memo, to specific language of this Agreement shall
prevail. Any exception to this order of precedence will be addressed through
specific language elsewhere herein.
33. ENTIRE AGREEMENT
This contract sets forth the entire Agreement between be parties, and
supersedes all other oral or written provisions. This contract may be modified
only in writing as set forth in section 30 above.
34. SEVERABILITY
Should the application of any provision of this Agreement to any particular
facts or circumstances be found by a court of competent jurisdiction to be
invalid or unenforceable, then (a) the validity of other provisions of this
Agreement shall not be affected or impaired thereby, and (b) such provision
shall be enforced to the maximum extent possible so as to effect the intent of
the parties and shall be reformed without further action by the parties to the
extent necessary to make such provision valid and enforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement an the
day first mentioned above.
Licensee CONTRACTOR
/s/ Xxxx Xxxxx /s/ Xxxxxx Xxxxxxxxx
-------------------------------------- ---------------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxx Xxxxxx Xxxxxxxxx
Printed Name Printed Name
Chief Legal Officer President
Title Title
Darwin Professional Underwriters, Inc. Valley Oak Systems, Inc.
00 Xxxxxxxxx Xxxx Xxxx 0000 Xxxxxxxxx Xxxxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (000) 000-0000
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Appendices
A. Pricing Detail and Payment Terms
B. Maintenance and Support Agreement
C. Escrow Agreement
X. Xxxxxx Policy System Interface Specification
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