EXHIBIT 10.1
DEVELOPMENT, LICENSE AND
PROPRIETARY RIGHTS AGREEMENT
THIS DEVELOPMENT, LICENSE AND PROPRIETARY RIGHTS AGREEMENT
(the "Agreement") is entered into effective as of December 31, 2001 (the
"Effective Date"), by and between CCC Information Services Inc., a Delaware
corporation ("CCC"), having an office at World Trade Center, 000 Xxxxxxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxx 00000, and Synergy 2000, Inc., a Delaware corporation
("Synergy"), having an office at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx, 00000.
RECITALS
WHEREAS, CCC and Synergy entered into that certain Company
Consulting Agreement dated as of May 14, 1999, as amended or modified from time
to time, (the "Consulting Agreement") for the development of a claims management
system which became known as the "Viking Project;" and
WHEREAS, the parties now mutually wish to complete the
development of the Base and Auto System components (as defined below) of the
Viking Project and the parties wish to enhance the Base and Auto System by
developing a Personal Lines component and a Commercial Lines component (as
defined below); and
WHEREAS, the parties hereby agree pursuant to this Agreement
that as between Synergy and CCC, Synergy will own and license to CCC the source
code used in the development of the Base and Auto System, Personal Lines and
Commercial Lines components (collectively, the "Components") in consideration of
the various rights and obligations as described herein; and
WHEREAS, Synergy and CCC wish this Agreement to supercede,
replace, release and settle all existing agreements, obligations and claims by
and between Synergy and CCC, including, but not limited to, the Consulting
Agreement and any agreements between CCC and each of Xxx Xxxxxx, Xx., Xxxxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxxx, Xx. (collectively, the "Subject Parties").
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
"AFFILIATE" shall mean, with respect to any specified entity,
any other entity that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified entity.
"BASE AND AUTO SYSTEM" shall be defined as those certain
Components of the CMS for use in processing personal and commercial motor
vehicle insurance claims as more fully described in the requirements document
relating to the automotive and base components dated January 26, 2001 (excluding
any references to interfaces and reports therein), and any subsequently
developed additions, modifications, interfaces, and/or enhancements to the
automotive and base components described therein up to and through the
termination of this Agreement, which are made generally available in connection
with a standard version of such system released to customers.
"CHANGE OF CONTROL" means, with respect to a party: (i) the
direct or indirect acquisition of either (a) the majority of the voting stock of
such Party or (b) all or substantially all of the assets of such party, by
another entity in a single transaction or series of related transactions; or
(ii) such party is merged with, or into, another entity.
"CMS" shall be defined as the claims management system, which
includes a base claims management system and automobile claims module developed
by CCC as further described in Exhibit A-2 hereto, to be further developed by
Synergy and excludes the various interfaces and reports developed by CCC in
accordance with the Specifications that cover the claims process from the first
notice of loss through payment request.
"COMPONENT" shall be defined individually as any of the Base
and Auto System, Personal Lines and Commercial Lines components of the CMS.
"COMMERCIAL LINES" shall be defined as a Component of the CMS
related to the Base and Auto System to process claims involving commercial lines
of insurance, excluding motor vehicle claims.
"CONFIDENTIAL INFORMATION" shall mean that information of
either party ("Disclosing Party") which is disclosed to the other party
("Receiving Party") pursuant to this Agreement, in written form and marked
"Confidential," "Proprietary" or similar designation, or if disclosed orally,
the Disclosing Party shall indicate that such information is confidential at the
time of disclosure and send a written summary of such information to the
Receiving Party within thirty (30) days of disclosure and xxxx such summary
"Confidential," "Proprietary" or similar designation. Confidential Information
shall include, but not be limited to, trade secrets, know-how, inventions,
techniques, processes, algorithms, software programs, schematics, designs,
contracts, customer lists, financial information, product plans, sales and
marketing plans and business information. References to a Receiving Party or a
Disclosing Party shall also include all present and future subsidiary and parent
companies of such party, subject to the restrictions contained in this
Agreement.
"CONTRACT VALUE" shall mean the total value of the License
Fees (as defined below) owed by a third party in connection with an agreement as
may be renewed, amended or re-instituted regarding any or all of the Components.
If, in the discretion of CCC or Synergy as the licensor of the Components, a
monthly subscription model is used, the Contract Value shall equal the License
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Fee due multiplied by the number of months in the customer agreement, as may be
renewed, amended, restated or re-instated.
"CUSTOMER LEAD" shall mean a third party CCC client that CCC
refers to Synergy for purposes of enabling Synergy to enter into an agreement
with a third party regarding usage or services related to the Components,
provided that the third party is not a current Synergy client or a prospective
Synergy client with whom Synergy is engaged in active discussions regarding
usage or services related to the Components.
"ENHANCED SOURCE CODE" shall mean the Original Source Code as
further developed, enhanced or reviewed by Synergy subsequent to the Payment
Request Date, including without limitation, the Synergy Work Product.
"EFFECTIVE DATE" shall have meaning set forth at the top of
this Agreement.
"FIRST DELIVERY DATE" shall mean such date one hundred eighty
(180) days from the Effective Date by which the Base and Auto System must be
submitted to CCC.
"INTELLECTUAL PROPERTY RIGHTS" means any and all (a) U.S. and
foreign patents, patent applications, patent disclosures and improvements and
modifications thereto, combinations, combinations-in-part, renewals, and
extensions, including without limitation xxxxx patents and utility models and
applications therefor, (b) U.S. and foreign trademarks, service marks, trade
dress, logos, trade names, corporate names and assumed names, and all
modifications thereto, and the goodwill associated therewith, whether based on
common law or statutory rights, and registrations and applications for
registration thereof, (c) U.S. and foreign copyrights and derivative works
thereto, whether based on common law or statutory rights, and registrations and
applications for registration thereof, (d) U.S. and foreign mask work rights and
registrations and applications for registration thereof, (e) trade secrets and
confidential business information (including without limitation, ideas,
formulas, compositions, inventions (whether patentable or unpatentable and
whether or not reduced to practice), know-how, research and development
information, software, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial, marketing and business data,
pricing and cost information, business and marketing plans and customer and
supplier lists and information), and (f) computer software, programs, code (in
any form, including, without limitation, modifications, enhancements and
improvements thereto), domain names, internet addresses, web sites, telephone
numbers and business addresses, and any other proprietary rights.
"LICENSE FEES" shall mean any license fees, subscription fees
or other usage charges received from any third party in connection with the
Components.
"ORIGINAL SOURCE CODE" shall mean all computer programs,
instructions and related material written in any language or form, including all
modifications, revisions, adaptations and updates existing as of the Payment
Request Date related to the Base and Auto System, and all related work product
within the scope of Specifications.
"PAYMENT REQUEST DATE" shall mean February 2, 2001.
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"PERSONAL LINES" shall be defined as a Component related to
the Base and Auto System to process multiple lines of insurance (e.g.,
Homeowners, Personal Liability, Personal Umbrella) excluding personal and
commercial motor vehicle claims and commercial claims as further defined and
described in Exhibit A-1.
"SECOND DELIVERY DATE" shall mean each such date one (1) year
from the Effective Date by which the Personal Lines must be submitted to CCC.
"SERVICE FEES" shall be defined as maintenance, support,
implementation, customization, training, or other services or consulting fees
received by Synergy in connection with the Components.
"SPECIFICATIONS" means the technical and functional
specifications defined in the certain documents entitled Exhibit A-2 and
"Synergy/CCC Specifications" (dated January 26, 2001 which is incorporated
herein but not attached), excluding any references to interfaces and reports
therein, and any subsequent additions or modifications to either as may be
mutually agreed by the parties.
"TERM" has the meaning set forth in Section 6.1.
"VERIFICATION PERIOD" shall mean the thirty (30) day periods
immediately following the First Delivery Date or the Second Delivery Date, as
the case may be.
"SYNERGY WORK PRODUCT" means any and all existing or
to-be-developed parts, specifications, elements, portions or aspects of each of
the Components that are developed, created or contributed to or licensed or
sublicensed by or on behalf of Synergy under this Agreement, and any and all
other results or proceeds created by Synergy, and by all persons and entities
rendering services, in connection with each Component, in each case including
all physical embodiments thereof, whether or not incorporated in a Component and
including all the documentation for each Component; PROVIDED, HOWEVER, that such
work product does not include any custom work product developed by Synergy at
the request of a third-party client.
ARTICLE II.
DEVELOPMENT
SECTION 2.1 DEVELOPMENT OBLIGATIONS
(a) As further provided herein, at Synergy's sole expense:
(i) Synergy will develop the Base and Auto System and the
Personal Lines in accordance with the Specifications; and
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(ii) Synergy will use its best efforts to develop the
Commercial Lines during the Term of this Agreement. Synergy will deliver to CCC
quarterly written reports detailing the development of the Commercial Lines and
the Personal Lines.
(b) CCC shall provide to Synergy the CCC proprietary materials
as described in Exhibit A-2 as of the Effective Date. This Section 2.1(b) shall
be CCC's sole development obligations pursuant to this Agreement.
(c) Upon execution and delivery of this Agreement, CCC will
not have the obligation to acquire any third party rights to develop the
Components. Neither Synergy nor CCC will be obligated to acquire any third party
rights necessary for their licensees to use the Components unless otherwise
provided for in a contractual agreement.
SECTION 2.2 DELIVERY OBLIGATIONS.
For the Base and Auto System and Personal Lines, Synergy will
have the following delivery obligations:
(a) Synergy shall deliver the Base and Auto System on or
before the First Delivery Date; and
(b) Synergy shall deliver the Personal Lines on or before the
Second Delivery Date.
If Synergy does not deliver the Base and Auto System meeting
the Specifications by the First Delivery Date, or if Synergy does not deliver
the Personal Lines meeting the Specifications by the Second Delivery Date,
Synergy promptly will pay to CCC Seventy-Five Thousand Dollars ($75,000) per
month for each month following the First Delivery Date and/or the Second
Delivery Date until delivery is made (the "Delinquency Payments"), provided that
such failure to deliver is not caused by CCC; and provided, further that the
number of days between the Effective Date and the First Delivery Date and the
Second Delivery Date shall be tolled during (i) the period of acceptance testing
pursuant to Section 2.3 hereof, (ii) an additional period, not to exceed thirty
(30) days, during which Synergy will make necessary or advisable corrections,
and (iii) an additional period, not to exceed thirty (30) days, for acceptance
testing of such corrections pursuant to Section 2.3 hereof. No Delinquency
Payments shall accrue during any of the foregoing periods described in clauses
(i), (ii) and (iii) of this Section. The tolling of Delinquency Payments as
provided herein shall not apply in the event Synergy repeats the correction and
resubmission process as provided in Section 2.3 hereof.
SECTION 2.3 ACCEPTANCE TESTING.
Following delivery of each of the Base and Auto System and the
Personal Lines, CCC shall use commercially reasonable efforts to review, examine
and verify such Component delivered by Synergy during the Verification Period
and notify Synergy in writing with specific detail of any material failure of
the Base and Auto System and the Personal Lines to meet the Specifications
("System Failure"). Upon receipt of such written notice from CCC, Synergy shall,
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at Synergy's sole cost and expense, promptly correct such System Failure and
resubmit the corrected Component as soon as technically practicable. Synergy
shall repeat the process of correction and resubmission of such Component, until
CCC's acceptance in a commercially reasonable manner. If CCC does not provide
Synergy with detailed written notice of the System Failure within the
Verification Period, the Component shall be deemed accepted and complete by CCC.
SECTION 2.4 UPGRADES, FIXES AND MAINTENANCE OBLIGATIONS.
(a) During the Term of this Agreement, Synergy shall (i)
maintain, update, support, improve and define all versions of the Base and Auto
System and provide CCC with current updates, new releases, patches and other
modifications and improvements to the Base and Auto System at no charge to CCC;
(ii) provide patches and fixes to CCC for the Personal Lines and the Commercial
Lines at no charge to CCC; and (iii) provide updates and new releases for the
Personal Lines and the Commercial Lines at Synergy's customary rates as then
charged to third party customers.
(b) For a period of eighteen (18) months following termination
of this Agreement, and upon each request of CCC, Synergy will provide CCC,
within thirty (30) days of such request, all available fixes and patches for the
Base and Auto System, the Personal Lines and the Commercial Lines at no cost to
CCC. Thereafter, Synergy will provide CCC at Synergy's customary rates as then
charged to third party customers, within thirty (30) days of such request, (i)
all fixes and patches for the Base and Auto System, the Personal Lines and the
Commercial Lines; (ii) maintenance and support services for all of the
Components; and (iii) updates and new releases for the Base and Auto System, the
Personal Lines and the Commercial Lines.
ARTICLE III.
OWNERSHIP
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and the further non-refundable
payment of Two Hundred Thirty-Five Thousand Dollars ($235,000) (the "Initial
Payment") by Synergy to CCC in accordance with the terms and conditions of that
certain escrow described in Section 13.2 of this Agreement, CCC hereby sells,
assigns, transfers and conveys to Synergy, all its rights, titles and interests
in and to the Components and the CMS, including without limitation, all rights
(including copyrights) and any and all other rights in and to the Base and Auto
System and the Original Source Code which may have been obtained by CCC or which
may be vested in CCC in furtherance of any endeavors covered hereby
(collectively, the "Assets"). CCC covenants and agrees to execute and deliver
any and all other instruments, documents and certificates, and perform any
commercially reasonable acts required to accomplish and confirm vesting of
ownership of the Assets in Synergy. Subsequent to the execution and delivery of
this Agreement, Synergy will own the Components, including the Original Source
Code and the Enhanced Source Code, with all rights to use, license, sublicense,
market or otherwise exploit and encumber the Components and CMS.
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During the Term of this Agreement, any disposition of the Base
and Auto System or the Original Source Code will be subject to the license and
royalty terms pursuant to Articles IV and V of this Agreement. No such
disposition or other transfer of Intellectual Property Rights relating to the
Components of the CMS shall be undertaken by any party in such a manner as to
circumvent, bypass or exclude the payment obligations or other contractual
obligations to the other party pursuant to Articles IV and V of this Agreement.
ARTICLE IV.
LICENSES
(a) SECTION 4.1 BASE AND AUTO SYSTEM. Synergy hereby grants to
CCC a non-exclusive, perpetual, worldwide, royalty-free license to use,
incorporate, license, sublicense, or market to its customers the Base and Auto
System, the Original Source Code, and all Synergy Work Product relating to said
Base and Auto System and the Original Source Code. CCC may modify the Base and
Auto System for its own internal use; PROVIDED, HOWEVER, that during the Term of
this Agreement, CCC shall only market and sell the version of the Base and Auto
System developed by Synergy. Any modifications made by CCC, including without
limitation, the introduction of new features, will, if accepted by Synergy,
belong to Synergy and CCC, and if not accepted by Synergy, will belong to CCC.
In addition, neither CCC nor Synergy shall have the power to sell, transfer,
assign or convey the Base and Auto System during the Term of this Agreement
without the consent of the other party, which consent shall not be unreasonably
withheld, conditioned or delayed. In the event (i) either party makes any
general assignment for the benefit of creditors; (ii) there is a filing by or
against either party of a petition to have such party adjudged a bankrupt or of
a petition for reorganization or arrangement under any law relating to
bankruptcy which is not discharged within one hundred twenty (120) days; (iii)
there is the appointment of a trustee or receiver to take ownership or
possession of substantially all of such party's assets, where ownership or
possession is not restored to such party within ninety (90) days; or (iv) the
attachment, execution or other judicial seizure of substantially all of such
party's assets where such seizure is not discharged within ninety (90) days;
then the ownership and licensing rights of the defaulting party shall revert to
and become the ownership and licensing rights of the non-defaulting party.
SECTION 4.2 PERSONAL LINES AND COMMERCIAL LINES. In addition,
Synergy hereby grants to CCC a non-exclusive, perpetual, worldwide, royalty-free
license to use internally the Personal Lines and the Commercial Lines.
ARTICLE V.
ROYALTIES
SECTION 5.1 STANDARD ROYALTIES.
Synergy will pay to CCC: (a) twenty-five percent (25%) of any
License Fees actually collected by Synergy and five percent (5%) of any Service
Fees actually collected by Synergy due in connection with the Base and Auto
System or the Personal Lines; and (b) five percent (5%) of any License Fees and
Service Fees actually collected in connection with the Commercial Lines
(collectively, the "Standard Royalties"); PROVIDED, HOWEVER, that for the Base
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and Auto System, such Standard Royalties will be calculated based on the higher
of $300,000 (the "Floor Price") or the Contract Value. The parties agree that
the Floor Price shall not apply to the Standard Royalty calculation for each of
the first two (2) License Fees received in connection with the Base and Auto
System.
SECTION 5.2 BONUS ROYALTIES.
In addition to the Standard Royalties, if CCC brings Synergy a
Customer Lead that results in License Fees or Service Fees for any or all of the
Components, CCC will receive an additional five percent (5%) of all License Fees
and Service Fees actually collected by Synergy from such Customer Lead (the
"Bonus Royalties"). For the sake of clarity, the parties agree that if CCC
merely assists Synergy in the transaction, but does not provide the Customer
Lead, CCC will not be entitled to the Bonus Royalties.
SECTION 5.3 AGGREGATE SYNERGY ROYALTY OBLIGATION.
Subject to Section 5.4 and in accordance with Section 5.1 and
Section 5.2, during the Term of this Agreement, Synergy will be obligated to pay
up to a maximum of Two Million Seven Hundred Thousand Dollars ($2,700,000) in
royalties to CCC (the "Royalty Obligation") resulting from fees actually
collected derived from License Fees.
SECTION 5.4 LICENSE FEES RECEIVED BY CCC.
If CCC receives any License Fees from third parties in
connection with the Base and Auto System, twenty-five percent (25%) of all such
License Fees will be subtracted from Synergy's Royalty Obligation. However, in
no event will CCC be obligated to make any direct cash royalty payment to
Synergy. CCC agrees to submit a written report to Synergy within thirty (30)
days of the end of each month in which revenue is received by CCC in the form of
License Fees for the Base and Auto System.
SECTION 5.5 PAYMENTS AND RECORDS.
Synergy agrees to submit royalty payments and a written report
within thirty (30) days of the end of each month detailing the royalty payments
due and payable to CCC for License Fees and/or Service Fees collected by
Synergy. Upon notice, CCC shall have the right, at CCC's sole expense, to
periodically (but not more frequently than semi-annually) audit all such
records, reports and payments to verify the accuracy of the foregoing. In the
event of such notice, Synergy shall, as required by CCC, provide CCC with
appropriate access to its facilities and relevant records. In the event of any
audit, CCC shall only be responsible and pay for its own audit expenses.
SECTION 5.6 INTERNAL USE OF THE COMPONENTS.
Notwithstanding anything to the contrary, CCC will have no
royalty obligations to Synergy for CCC's internal use of the Components and the
Synergy Work Product.
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ARTICLE VI.
TERM AND TERMINATION
SECTION 6.1 TERM.
This Agreement shall commence upon the Effective Date and
shall continue in full force and effect, unless terminated earlier as provided
herein, until the earlier of: (a) the payment by Synergy to CCC of the full
Royalty Obligation; (b) the date four (4) years after the Effective Date; or (c)
ninety (90) days after such time as CCC provides Synergy with written
notification of its intent to terminate.
SECTION 6.2 EFFECT OF TERMINATION.
Upon termination as provided above:
(a) Synergy will provide CCC with a then-current copy of all
Synergy Work Product produced which CCC may use as otherwise provided by this
Agreement. Thereafter, at the request of CCC, Synergy shall provide CCC with
current updates, new releases, patches and other modifications and improvements
of all Components pursuant to the terms of Section 2.4 of the Agreement.
(b) CCC will retain the right to market and sell the Base and
Auto System only; CCC will have no rights to market or license the Personal
Lines or the Commercial Lines.
(c) Synergy will have no Royalty Obligation to CCC except for
royalties associated with Standard Royalties or Bonus Royalties on License Fees
and Service Fees for goods and services contracted to third parties prior to the
date of termination of this Agreement. Such royalties will be paid to CCC as
received by Synergy over the remaining terms of those third party contracts
until the $2,700,000 Royalty Obligation has been satisfied.
ARTICLE VII.
DISTRIBUTION
SECTION 7.1 DISTRIBUTION TO THIRD PARTIES.
Except as provided below, and subject to a party's ownership
and license rights as provided in Articles III and IV hereof, CCC and Synergy
will have joint rights to distribute, license and sublicense the Base and Auto
System, and Synergy will have the exclusive right to distribute, license and
sublicense the Personal Lines and Commercial Lines to any third party customer
during and/or after the Term of this Agreement.
SECTION 7.2 SYNERGY DISTRIBUTION RESTRICTIONS.
Synergy agrees not to distribute, license, sell or otherwise
transfer any rights to the Components, directly or indirectly, to ADP, Xxxxxxxx,
Comp-Est, ProcessClaims, E-AutoClaims, Scene Genesis, Auto Vista, or their
Affiliates.
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SECTION 7.3 DISTRIBUTION OF NON-CMS SOFTWARE.
Subject to Article III hereof, nothing in this Agreement shall
otherwise restrict CCC's or Synergy's ability to distribute any non-CMS software
products containing certain source code from the Base and Auto System.
ARTICLE VIII.
PRODUCT AND SERVICE BRANDING
During and after the Term of this Agreement, either party may
brand the Base and Auto System under such party's own name or any name
designated by such party; PROVIDED, HOWEVER, that neither party may use any of
the other party's logos or trademarks without the prior written consent of the
other party, exercised in its sole discretion. In the event either party permits
the use of any of its logos or trademarks, any such use shall be subject to the
restrictions and terms of use provided by such party, including without
limitation, any quality control procedures such party deems reasonably
necessary.
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ARTICLE IX.
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SYNERGY.
Synergy represents and warrants that: (i) all corporate action
on the part of Synergy, its officers, directors and shareholders necessary for
the authorization of this Agreement and the performance of all obligations of
Synergy hereunder has been taken; (ii) this Agreement, when executed and
delivered will be a valid and binding obligation of Synergy enforceable in
accordance with its terms; (iii) it has the right, power and authority to grant
the rights and licenses granted hereunder and the Components will include only
information technology and other proprietary rights Synergy is authorized to use
and to authorize CCC to use; (iv) except for patent rights to the extent CCC was
solely responsible for creation of an aspect of the Components or any part
thereof, the Components and/or any part thereof developed by Synergy and Synergy
Intellectual Property Rights do not and will not infringe upon, misappropriate
or otherwise violate the Intellectual Property Rights or other proprietary
rights of any third party; (v) Synergy will develop the Components in accordance
with the Specifications and generally accepted standards of the industry; (vi)
the Components will not give rise to any claims against CCC for any royalty fees
or payments of any kind; (vii) except with respect to content, reports and work
product, if any, provided by CCC, all obligations owed to third parties with
respect to activities contemplated to be undertaken by Synergy under this
Agreement, will be fully paid up by Synergy so that CCC will not have any
obligations with respect thereto; (viii) each Component delivered by Synergy
will be free of any computer viruses, time bombs, worms, or any other similar
harmful, malicious or hidden program or data or software device at the time of
delivery to CCC as is detectable by use of a commercially released up to date
virus detection software as used by Synergy; (ix) the advent of the year 2000
and any other date sensitive event shall not adversely affect the performance of
the Components; and (x) it has deleted, destroyed, or otherwise rendered
useless, all materials related to CCC-developed interfaces that were conveyed to
it by CCC prior to the execution of this Agreement and that it will not in any
way use such materials. In addition to the foregoing representations and
warranties, Synergy covenants that it will use its best efforts to obtain, on a
prospective basis, from any third party contractor(s) to be used in furtherance
of the objectives of this Agreement, written assignment(s) of any work product
created by such third party(ies) during the Term of this Agreement which is part
of the Components, including without limitation, the copyright(s) therein,
transferring all right, title and interest therein to Synergy.
SECTION 9.2 REPRESENTATIONS AND, WARRANTIES OF CCC.
CCC represents and warrants that: (i) all corporate action on
the part of CCC, its officers, directors and shareholders necessary for the
authorization of this Agreement and the performance of all obligations of CCC
hereunder has been taken; (ii) this Agreement, when executed and delivered will
be a valid and binding obligation of CCC enforceable in accordance with its
terms; (iii) it has the right, power and authority to grant the rights and
licenses granted hereunder, and all obligations owed to third parties by CCC
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under this Agreement will be fully paid up by CCC so that Synergy will not have
any obligations with respect thereto; (iv) to the best of CCC's knowledge, it
has received from third party contractor(s) used in the development of the
Original Source Code, written assignment(s) of any work product created by such
third party(ies) during the course of said development which is part of the
Components, including without limitation, the copyright(s) therein, transferring
all right, title and interest therein to CCC; and (v) except as otherwise
provided for in this Agreement, CCC hereby sells, assigns, transfers and conveys
to Synergy the Assets in their "AS IS - WHERE IS" condition.
SECTION 9.3 NO OTHER REPRESENTATIONS AND WARRANTIES. OTHER
THAN AS EXPRESSLY PROVIDED ABOVE, NEITHER PARTY IS MAKING ANY REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES
EXPRESSLY DISCLAIM, AND HEREBY EXPRESSLY WAIVE, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
ARTICLE X.
PROFESSIONAL AND SUPPORT SERVICES
SECTION 10.1 SYNERGY PROFESSIONAL SERVICES.
Synergy agrees to provide professional services to CCC, as may
be requested by CCC, for additional internal CCC development work at a rate that
is at least ten percent (10%) less than the then current standard Synergy rate
at the time of the engagement.
SECTION 10.2 KNOWLEDGE TRANSFER.
Except as other provided herein, each party may, in its sole
discretion, provide reasonable knowledge transfer services as may be reasonably
requested, at a rate of Seventy-Five Dollars ($75) per hour.
SECTION 10.3 PREFERRED PROVIDER.
CCC agrees that Synergy will be the sole external provider of
support, implementation, customization, training, consulting or other services
(the "Services") in connection with the CMS for CCC and its Affiliates. Synergy
will provide such Services on a time and materials basis. In addition, Synergy
will be the preferred provider of Services to CCC's third-party customers. In
this regard, CCC will use its best efforts to suggest that CCC's customers
engage Synergy to provide the Services for their use. In furtherance of this
objective, CCC will use its best efforts to introduce Synergy to such
third-party customers in person and in writing, and schedule both an initial
introductory meeting and a follow-up meeting for Synergy to present to such
customers. Synergy will provide such Services on a time and materials basis.
ARTICLE XI.
CONFIDENTIALITY
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SECTION 11.1 CONFIDENTIAL INFORMATION.
Each party acknowledges that in the course of the performance
of this Agreement, it may obtain the Confidential Information of the other
party. The Receiving Party shall, at all times, both during the term of this
Agreement and thereafter keep in confidence and trust all of the Disclosing
Party's Confidential Information received by it. The Receiving Party shall not
use the Confidential Information of the Disclosing Party other than as expressly
permitted under the terms of this Agreement. The Receiving Party shall take
reasonable steps to prevent unauthorized disclosure or use of the Disclosing
Party's Confidential Information and to prevent it from falling into the public
domain or into the possession of unauthorized persons. The Receiving Party shall
not disclose Confidential Information of the Disclosing Party to any person or
entity other than its officers, employees, contractors, and consultants who need
access to such Confidential Information in order to effect the intent of this
Agreement and who have entered into confidentiality agreements which protect the
Confidential Information of the Disclosing Party sufficient to enable the
Receiving Party to comply with this Section 11.1. The Receiving Party shall
immediately give notice to the Disclosing Party of any unauthorized use or
disclosure of Disclosing Party's Confidential Information. The Receiving Party
agrees to assist the Disclosing Party to remedy such unauthorized use or
disclosure of its Confidential Information.
SECTION 11.2 EXCEPTIONS TO CONFIDENTIAL INFORMATION.
The obligations set forth in Section 11.1 shall not apply to
the extent that Confidential Information includes information which is: (a) now
or hereafter, through no unauthorized act or failure to act on the Receiving
Party's part, in the public domain; (b) known to the Receiving Party without an
obligation of confidentiality at the time the Receiving Party receives the same
from the Disclosing Party, as evidenced by written records; (c) hereafter
furnished to the Receiving Party by a third party as a matter of right and
without restriction on disclosure; (d) furnished to others by the Disclosing
Party without restriction on disclosure; (e) independently developed by the
Receiving Party without use of the Disclosing Party's Confidential Information,
or (f) information that is included in the Specifications documentation
described in Exhibits A-1 and A-2 hereto, and which is disclosed to prospective
licensees and users on a need-to-know basis only upon the execution and delivery
of a suitable confidentiality and non-disclosure agreement between Synergy and
the prospective client or customer in order to make an informed business
decision in order to enter into a business relationship involving the Components
of the CMS. Nothing in this Agreement shall prevent the Receiving Party from
disclosing Confidential Information to the extent the Receiving Party is legally
compelled to do so by any governmental investigative or judicial agency pursuant
to proceedings over which such agency has jurisdiction; PROVIDED, HOWEVER, that
prior to any such disclosure, the Receiving Party shall (i) assert the
confidential nature of the Confidential Information to the agency; (ii)
immediately notify the Disclosing Party in writing of the agency's order or
request to disclose; and (iii) cooperate fully with the Disclosing Party in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting its
confidentiality.
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ARTICLE XII.
INDEMNIFICATION
SECTION 12.1 INDEMNIFICATION BY SYNERGY.
Synergy shall indemnify and hold CCC and CCC's Affiliates, as
well as their respective employees, directors, successors and assigns, harmless
from and against all past, present or future cost, liability, loss, damage,
expense or judgment whether known or unknown, contingent or absolute, accrued or
unaccrued, apparent or unapparent, resulting from, arising out of, or in
connection with (i) any claim, action or proceeding, in a court or otherwise
(collectively, "Claims") making an allegation which, if true, would be a breach
of any of the representations or warranties made by Synergy under this
Agreement; (ii) any Claims by any Synergy customer or licensee with regard to
the CMS, any Component and/or Enhanced Source Code, or license or use thereof
provided that Synergy shall have (i) the right to select counsel; (ii) the right
to direct and control the litigation or proceedings; and (iii) subject to the
approval of CCC and/or subject to a good faith settlement hearing before the
tribunal in which such action is brought, of which hearing CCC shall be given
notice and an opportunity to be heard, the right to settle the litigation on
commercially reasonable terms.
SECTION 12.2 INDEMNIFICATION BY CCC.
CCC shall indemnify and hold Synergy and Synergy's Affiliates,
as well as their respective employees, directors, successors and assigns,
harmless from and against all past, present or future Claims making an
allegation which, if true, would be a breach of any of the representations or
warranties made by CCC under this Agreement; provided that CCC shall have (i)
the right to select counsel; (ii) the right to direct and control the litigation
or proceedings; and (iii) subject to the approval of Synergy and/or subject to a
good faith settlement hearing before the tribunal in which such action is
brought, of which hearing Synergy shall be given notice and an opportunity to be
heard, the right to settle the litigation on commercially reasonable terms.
ARTICLE XIII.
RELEASE OF PRIOR OBLIGATIONS
SECTION 13.1 RELEASE. Except for the obligations created under
this Agreement, Synergy and the Subject Parties shall each release and discharge
CCC and its respective officers, directors, agents, employees, subsidiaries,
representatives, successors and assigns, and CCC shall release and discharge the
Subject Parties and Synergy and its respective officers, directors, agents,
employees, subsidiaries, representatives, successors and assigns of and from all
obligations, claims, demands, debts, damages, duties, causes of action, actions,
and suits whatsoever, in law or equity, which it has had, now has, or to which
it may hereafter become entitled on account of any act, failure to act, or event
occurring prior to the Effective Date, relating to or arising out of all prior
agreements and contracts between Synergy and CCC, including, but not limited to
the Consulting Agreement and any obligation of CCC to Synergy for any unpaid
invoices or amounts due related thereto, and all prior agreements and contracts
between CCC and each of the Subject Parties.
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SECTION 13.2 ESCROW ACCOUNT; PAYMENTS TO/FROM SYNERGY AND CCC.
(a) Payment to Synergy by CCC. CCC shall pay to or for the
benefit of Synergy the outstanding payable to Synergy existing as of the Payment
Request Date in the principal amount of Two Hundred Thirty-Four Thousand Seven
Hundred Seven and 25/100 Dollars ($234,707.25) (the "Outstanding Synergy
Receivable") by wire transfer of said amount to the Clients Trust Account (the
"Trust Account") of Xxxxxxx X. Xxxxx, A Professional Corporation (the "Escrow
Agent"). The Outstanding Synergy Receivable shall at all times be retained by
the Escrow Agent in the Trust Account and disbursed by the Escrow Agent only in
accordance with the terms and conditions of this Agreement. CCC and Synergy
acknowledge and agree that the Trust Account is a non-interest bearing account
in a commercial bank situated in Los Angeles, California. Escrow Agent shall not
be liable for any losses resulting from the investment or non-investment of the
Outstanding Synergy Receivable, provided that Escrow Agent has acted in
accordance with the provisions of this Section.
(b) Payment to CCC by Synergy. Concurrent with receipt of the
Outstanding Synergy Receivable, the Escrow Agent shall disburse to CCC by wire
transfer the Initial Payment for the Assets by or on behalf of Synergy. Escrow
Agent shall make no disbursement of the Outstanding Synergy Receivable except as
expressly provided in this Agreement.
(c) Escrow Agent's responsibilities shall be defined as
follows:
(i) Escrow Agent assumes no responsibility except for the
investment and disbursement of the Outstanding Synergy Receivable and the
Initial Payment, all as provided herein, and shall not be liable for any action
or inaction taken by it in accordance with the terms of this Agreement.
(ii) Escrow Agent may consult with its counsel and shall not
be held liable for any action taken or omitted in good faith on advice of such
counsel. Synergy will indemnify, protect and hold CCC and Escrow Agent harmless
from any and all losses, liabilities and expenses for anything which is done or
omitted by it in accordance with this Agreement and will reimburse Escrow Agent
for all its losses and expenses, including reasonable counsel fees, incurred by
it in the performance of its duties and responsibilities hereunder, except those
which may be occasioned by Escrow Agent's own gross negligence or bad faith.
Escrow Agent shall not be required to recognize any other agreement between the
other parties hereto even though reference thereto may be made herein or copies
or provisions thereof may be annexed as exhibits hereto and whether or not it
may have knowledge thereof.
(iii) Except for Escrow Agent's gross negligence or bad faith,
each of Synergy and CCC specifically waive any and all claims, rights, demands,
and causes of action against Escrow Agent arising from any good faith
disposition of the Outstanding Synergy Receivable made pursuant to this
Agreement, and, except in the case of Escrow Agent's gross negligence or bad
faith, shall look only to each other for any damages or claims arising or
growing out of the disposition thereof.
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(iv) Escrow Agent shall be protected in acting or in
refraining from acting upon any written notice, request, waiver, consent,
certificate, receipt, authorization, power of attorney, or other paper or
document which Escrow Agent reasonably believes to be genuine.
(v) Escrow Agent shall act hereunder as a depository only, and
is not responsible or liable in any manner whatsoever for the sufficiency,
correctness, genuineness or validity of the subject matter of this escrow or any
part thereof, or for the form of execution thereof.
(vi) In the event of any disagreement or the presentation of
adverse claims or demands in connection with or for any item affected hereby,
Escrow Agent shall, at its option, be entitled to refuse to comply with any such
claims or demands during the continuance of such disagreement and may file a
suit in interpleader in the federal district court for the State of California,
whereupon it shall be fully released and discharged from all further obligations
to perform any and all duties or obligations imposed upon it by this Agreement.
(vii) Notwithstanding anything to the contrary contained
herein, it is expressly agreed among the parties to this Agreement that with
respect to the obligations of Escrow Agent hereunder, Escrow Agent shall comply
only with claims, demands, requests or directions of Synergy and CCC pursuant to
this Agreement and shall not comply with the claims, demands, requests or
directions of any other person with respect to the subject matter of this
Agreement, except as required by law.
ARTICLE XIV.
MISCELLANEOUS
SECTION 14.1 FORCE MAJEURE.
Neither party shall be liable for any delays in performance or
failure to perform any of its obligations hereunder (other than an obligation to
make payments) where such delay or failure arises due to reasons beyond the
party's control, including but not limited to, acts of God, flood, fire, war,
court order, labor disputes, or a public enemy.
SECTION 14.2 ASSIGNMENT.
Neither party shall assign or delegate this Agreement, or any
of its rights or duties hereunder, directly, indirectly, or by operation of law
to any third party without the prior written consent of the other party;
PROVIDED HOWEVER, that either party may assign this Agreement to an Affiliate or
without prior written consent to any successor by reason of a Change of Control.
In case of an assignment or delegation of this Agreement to a subsidiary
corporation, then such party and its parent corporation hereby unconditionally
guarantee the payment and performance and each and every obligation of such
party hereunder.
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SECTION 14.3 COMPLETENESS.
This Agreement, and any amendments, modifications and
schedules hereto, set forth, and are intended by the parties to be an
integration of, all of the promises, agreements and understandings among the
parties hereto with respect to the subject matter hereof and supersede any prior
promises, agreements and understandings between the parties.
SECTION 14.4 GOVERNING LAW.
This Agreement is governed by and interpreted in accordance
with the laws of the State of Illinois, without reference to conflict of laws
principles. Each party hereby irrevocably consents to the exclusive jurisdiction
and venue of the federal and state courts in Xxxx County, Illinois.
SECTION 14.5 NO JOINT VENTURE.
The execution and delivery of this Agreement shall not be
deemed to confer any rights or remedies upon, nor obligate any of the parties
hereto, to any person or entity other than such parties. Nothing in the
Agreement shall cause or be deemed to cause the parties to be partners or joint
venturers with, or agent or employees of, each other. The parties are
independent contractors, and neither party shall have any right or power to
create any obligation or responsibility on behalf of the other party.
SECTION 14.6 SURVIVAL.
Upon termination or expiration of this Agreement, all rights
and obligations of the parties hereunder shall terminate except for the rights
and obligations of the parties under Articles III, IV, V (to the extent provided
in Section 6.2), VII, VIII, IX, XI, XII and XIII and Sections 2.4, 6.2, 14.4 and
14.6 or those that, by their terms, are intended to survive such termination or
expiration.
SECTION 14. NOTICE.
Any notice required hereunder shall be provided by prepaid,
first class, certified return receipt request U.S. mail, to the addresses
provided below.
If to CCC:
CCC Information Services Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
If to Synergy:
Synergy 2000, Inc.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: President
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Any written reports that Synergy is required to submit to CCC
pursuant to this Agreement shall be provided by prepaid, first class, certified
return receipt request U.S. mail, to the address provided below:
CCC Information Services Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Director of Business Development
SECTION 14.8 COUNTERPARTS; FACSIMILE SIGNATURES. This
Agreement may be executed in two or more counterparts, which, taken together,
shall constitute the whole of the Agreement as between the parties. Each party
hereto shall be authorized to rely upon the signatures of all of the parties
hereto which are delivered by facsimile as constituting a duly authorized,
irrevocable, actual, current delivery of this Agreement with original ink
signatures of each person and entity; PROVIDED, HOWEVER, that each party hereto
that delivers such facsimile signatures to another party hereto, covenants and
agrees that it shall deliver an executed original of the same to the party so
receiving the previous facsimile signatures within five (5) days after delivery
of such facsimile signatures.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date first written above.
CCC INFORMATION SERVICES INC.
By: /S/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
SYNERGY 2000, INC.
By: /S/ Xxx Xxxxxx, Xx.
Name: Xxx Xxxxxx, Xx.
Title: President
AS TO ARTICLE XIII ONLY:
/S/ Xxx Xxxxxx, Xx.
Xxx Xxxxxx, Xx.
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/S/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
/S/ Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx.
XXXXXXX X. XXXXX, A PROFESSIONAL CORPORATION
By: /S/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, President
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EXHIBITS (NOT ATTACHED)
Exhibit A-1 Personal Lines Specifications
Exhibit A-2 CCC Proprietary Materials
