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INSpire Insurance Solutions, Inc.
License Agreement
This License Agreement is made this 31st day of December, 1998 (the "Effective
Date") by and between INSPIRE INSURANCE SOLUTIONS, INC., a Texas corporation
having its principal place of business located at 300 Burnett Street, Fort
Worth, Texas, 76102, ("INSpire"), and Philadelphia Consolidated Holding Corp.
and all of its subsidiaries, including, but not limited to, Philadelphia
Insurance Company of One Bala Plaza, Ste. 100, Bala Cynwyd, Pennsylvania, 19004,
(collectively, "Client").
WHEREAS, Client has been using certain software licensed by Inspire on a trial
basis and now desires to acquire such software, in addition to other software,
under a perpetual license; and
WHEREAS, Inspire desires to license such software to Client and provide Client
with (i) related implementation services pursuant to an Implementation Support
schedule attached hereto; and (ii) support and maintenance services pursuant to
a System Maintenance schedule which is also attached hereto;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. INSpire grants to Client, and Client accepts, subject to all the terms and
conditions of this Agreement, a non-exclusive, non-transferable (except as
permitted under Section 3), perpetual License to use a property and
casualty information processing system (the "System"). The System consists
of certain computer software as more fully described in Schedule 6 of this
Agreement and the documents specified in Schedule 4 (collectively such
documents are hereinafter referred to as the "System Specifications").
2. Attached hereto are Schedules 1 through 8. Such schedules are incorporated
herein by reference as if set forth in full (except for Schedule 8), and
both parties expressly agree to be bound by them.
3. The License granted hereunder is limited to use of the System by the
Client for processing its data and files at any of Client's locations and
on any type of network, including, but not limited to, a wide area network
configuration which connects Client's locations to the System via remote
access modems.
The rights, benefits, duties, and obligations granted to Client hereunder
are personal to Client, and the Agreement may not be sold, transferred or
assigned to any third party without the express written consent of
INSpire. Any attempted sale, transfer, or assignment without such consent
shall be null, void, and of no effect. Notwithstanding the foregoing or
anything herein to the contrary, Philadelphia Consolidated Holding Corp.
shall be permitted to assign this Agreement, without the imposition of any
transfer or assignment fees, to any one of the following parties: (i)
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any successor by merger, acquisition, consolidation or other corporate
restructuring; (ii) any parent, subsidiary or affiliate; or (iii) any
entity which purchases all or substantially all of Philadelphia
Consolidated Holding Corp.'s or any of its subsidiaries' assets. Unless
otherwise agreed by the parties, the use of the Software System by any
assignee of Client shall be limited to processing the data, records and/or
customers of that portion of Client's business supported by the Software
System prior to assignment of this Agreement.
4. (a) INSpire warrants that for a period of one (1) year after the date of
Acceptance of the System under Schedule 5, the System will conform to the
System Specifications, except for any failure to conform caused by
Client-created error.
Should the System fail to perform in accordance with the foregoing
warranty during the warranty period, INSpire will, at its sole cost and
expense, correct the non-conformity(ies) within the following time frames
corresponding to the severity level of the failure/non-conformity:
i. Priority A -INSpire will acknowledge Priority A
failures/non-conformities within one (1) hour during normal business
hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two (2) hours
outside of normal business hours from the time the call was placed
by Client. INSpire will provide a fix or workaround within the later
of twenty (24) hours from the time the call was placed by Client or
at the start of the first business day after the call.
ii. Priority B - INSpire will acknowledge Priority B
failures/non-conformities within one (1) hour during normal business
hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two (2) hours
outside of normal business hours from the time the call was placed
by Client. INSpire will provide a fix or workaround within seventy
two (72) hours from the time the call was placed by Client.
iii. Priority C - INSpire will acknowledge Priority C
failures/non-conformities within seventy two (72) hours from the
time the call was placed by Client. INSpire will provide a fix or
workaround within seven (7) days from the time the call was placed
by Client.
For any failures/non-conformities for which INSpire provides a workaround,
INSpire will provide a schedule for the fix of such
failure/non-conformities and INSpire will use its reasonable best efforts
to provide such fix within thirty (30) days after the call was placed by
Client.
For purposes of this section 4 a., the following definitions apply:
Priority A means a failure/non-conformity that renders the System
inoperative or causes the System to fail catastrophically.
Priority B means a failure/non-conformity that significantly degrades
performance of the System or materially restricts Client's use of the
System.
Priority C means a failure/non-conformity that causes only a minor impact
on the use of the System.
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The priority level of each reported failure/non-conformity will be
determined jointly between Client and INSpire at the time the
failure/non-conformity is reported.
If the failure of the System to conform to the System Specifications is
due to Client-created error, Client agrees to pay for Inspire's services
(at the time and materials rates specified in Schedule 7) rendered in
analyzing and correcting the non-conformity(ies), provided that any such
non-conformity(ies) are corrected.
(b) Inspire represents and warrants that the System and all updates
thereto can and will correctly handle the change of the century in a
standard and compliant manner, including the year 2000 and beyond as well
as the leap year and the absence of leap year, and will operate accurately
in all respects with respect to date related operations. For purposes of
this Agreement, compliance with the foregoing with respect to the year
2000 shall mean that neither the performance nor the functionality of the
System will be affected by any changes caused by the advent of the year
2000.
In particular:
i. Year 2000 compliance shall mean that no value used for the current
date will cause any interruption in the operation of the System.
ii All manipulations of time-related data will produce the desired
results for all valid dates within the System, proper to, through
and beyond the year 2000.
iii Where required, data elements, interfaces and data storage will
specify the century to eliminate data ambiguity
iv Where any date element is represented without a century, the correct
century shall be unambiguous for all manipulations involving that
element.
(c) Inspire represents and warrants that it is the owner of all right,
title and interest in and to the System (except for the component noted on
Schedule 6 as being owned by Cover All Technologies, Inc., referred to
hereinafter as the "ValueRate Software" and the component noted on
Schedule 6 as being owned by Bexar, Inc., referred to hereinafter as the
"M.A.R.S. Software") and that it has the right to grant to Client the
license granted hereunder free and clear of any liens and encumbrances.
With respect to the ValueRate Software and the M.A.R.S Software, Inspire
represents and warrants that it has the rights to license such software to
Client on the terms herein stated.
(d) INSpire warrants that the System is and shall remain free of features
such as "back doors", "trojan horses" and "time bombs" through which the
System could be disabled either directly or indirectly via remote access.
(e) INSpire warrants that the System is and shall remain free of any and
all computer viruses (excluding any viruses exposed to the System by
Client) and that Inspire has taken all reasonable steps to ensure that the
System is free of such viruses.
(f) INSpire warrants that all services rendered hereunder shall be
rendered in a professional manner consistent with general industry
practices. INSpire also warrants there will be no reassignment of
resources to another client of INSpire when such reassignment would hinder
or adversely affect the successful completion of the
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Implementation Tasks identified on Schedule 7 of this Agreement or the
successful completion of the Acceptance Criteria identified on Schedule 5
of this Agreement.
5. Client acknowledges that the System is a confidential and commercially
valuable proprietary product of INSpire, and agrees to keep the System
confidential and not to disclose it, in full or in part, to any third
party (except its employees, accountants, attorneys, and any governmental
authority or agency) without the express written consent of INSpire, such
written consent by INSpire not to be unreasonably withheld.
Notwithstanding the foregoing, Client shall not be in breach of this
Section 5 if Client is required to disclose the System or any information
related thereto pursuant to applicable laws, rules or regulations,
government requirement, court order or in connection with the enforcement
of any of its rights or remedies under this Agreement. Client agrees, in
furtherance of this provision, to exercise at least the same degree of
care with respect to the System as it exercises with respect to its own
data, records, information, materials and processes which it deems to be
confidential and proprietary in nature.
Inspire shall hold in confidence and not disclose (except on a
confidential basis to its employees who need to know and who are informed
of their confidentiality obligations) all Confidential Information
received from Client in the same manner and to the same extent as it holds
in confidence its own Confidential Information, and shall not use any such
Confidential Information except for purposes contemplated by this
Agreement. As used in this Agreement, "Confidential Information" shall
mean all confidential and proprietary information, including but without
limitation, components, drawings, data, plans, programs, specifications,
techniques, processes, inventions or other information or material, owned,
possessed or used by Client which is disclosed orally, in writing or is
viewed by Inspire. In the event of a breach by Inspire of its obligations
under this paragraph, Client will suffer irreparable harm, Client's
remedies at law will be inadequate and Client shall have, in addition to
any other remedies it may have, the right to obtain injunctive relief to
restrain any breach or threatened breach thereof
Except to the extent retained in connection with the enforcement of its
rights and remedies under this Agreement, upon termination of this
Agreement, Client shall return to INSpire any and all copies of the
System, or any portion thereof, whether said copies were created by
INSpire or by Client.
It is expressly agreed by the parties that the termination of this
Agreement will not terminate their obligations under this paragraph.
6. APART FROM THE WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, INSpire MAKES
NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE CAPABILITIES,
PERFORMANCE, SPECIFICATIONS, OR CHARACTERISTICS OF THE SYSTEM.
Neither party will be responsible to the other for any incidental or
consequential damages, including but not limited to loss of business or
business profits, regardless of whether said damages were foreseeable.
Notwithstanding anything herein to the contrary, the foregoing limitations
on INSpire's liability shall not apply to (i) damages arising from
INSpire's willful misconduct; or (ii) the following paragraph.
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Notwithstanding anything in this Agreement to the contrary, INSpire shall
pay Client as liquidated damages and not as a penalty, $10,000 per week
for each full week that completion of Implementation (as specified in
Schedule 7) is later than the Implementation Date (as defined in Schedule
7). Any such damages owed Client, as calculated weekly, shall be paid
within five (5) days of the end of the week giving rise to such damages.
Payment of liquidated damages owed to Client by INSpire (as described in
the above paragraph) in excess of any monies actually paid by Client to
INSpire under Schedule 2--Payment Terms of this License Agreement may, at
INSpire's option, be done in the form of a credit to Client towards any
future monies owed by Client under this License Agreement. However, if
this License Agreement is terminated by either party for any reason, all
liquidated damages owed to Client by INSpire, including any that have been
credited in accordance with the foregoing sentence, shall be paid within
five (5) days of the effective date of termination.
7. (a) INSpire warrants that it is the owner of the System (except for the
ValueRate and M.A.R.S Software) and has the right to license it to Client.
INSpire further warrants that the System does not infringe upon the
proprietary interest or intellectual property rights of any third party.
Client agrees to promptly inform INSpire in writing should it become aware
of any claim or allegation that the System infringes upon the copyright,
patent, trademark or any other proprietary right of a third party, in
which event INSpire shall defend, indemnify and hold Client harmless from
and against any such allegation, claim or action at its own expense, and
to pay all costs (including reasonable attorneys' fees) incurred by, and
damages finally awarded against, Client or paid by Client in settlement of
such action. Client agrees to cooperate with said defense by complying
with INSpire' reasonable instructions and requests to Client in connection
with said defense. If, as the result of any such claim or action, Client
is unable to use the System or any material portion thereof, Client shall
have the right to terminate this Agreement upon written notice to INSpire,
in which case INSpire shall promptly refund all fees previously paid by
Client to INSpire hereunder.
(b) INSpire agrees to indemnify, defend and hold harmless Client and its
directors, officers and employees (collectively, the "Indemnified
Parties") from and against all claims, losses, liabilities, damages and
expenses (including reasonable legal fees and expenses) suffered or
incurred by any of them resulting from, based upon, relating to or arising
out of (i) a breach of any warranties made by INSpire herein, (ii) a
breach by INSpire of any of its obligations hereunder, (iii) the conduct
of INSpire, its employees, agents and subcontractors and any breach or
violation of law.
8. Upon delivery of the System to Client, the risk of loss, damage or
destruction shall be borne by Client. In the event of such loss, damage or
destruction, INSpire agrees to furnish replacement materials at its
reasonable costs but in no event be liable for the loss or replacement of
Client's data used with the System except as otherwise provided for in
this agreement.
9. Subject to the limitations on assignment contained in Paragraph 3, above,
this Agreement shall be binding upon the parties hereto, their legal
representatives, successors, subsidiaries and assigns.
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10. In addition to the payment specified in this Agreement, Client shall pay
any present or future sales, excise, use, value-added or other similar
taxes or duties levied or based on payments made pursuant to this
Agreement or on the System in regard to its use by Client or on the
Agreement. INSpire agrees to promptly remit all taxes collected from
Client to the appropriate taxing authority.
11. Neither party shall, without the express written consent of the other
party, directly or indirectly induce or attempt to induce any employee of
the other party to terminate his or her employment with the other party or
hire any employee of the other party.
12. This Agreement may be terminated by INSpire for nonpayment of any monies
due hereunder after thirty (30) days written notice from INSpire, or if
Client fails to comply with the confidentiality provisions contained
herein and Client fails to cure such failure or make such payment within
thirty (30) days of written notice from INSpire. Such termination shall
not affect any other remedy for said breach to which INSpire may be
entitled.
This Agreement may be terminated at any time by Client provided that
Client (1) return all System materials to INSpire, (2) pay to INSpire the
balance of any unpaid license fees (except where termination is due to (i)
a breach of this Agreement by Inspire or (ii) rejection of the System by
Client in accordance with Schedule 5), (3) pay to INSpire any unpaid
service fees for work performed under this Agreement. Upon termination,
INSpire shall not be responsible for the refund of any monies paid
hereunder, except as otherwise provided in this Agreement. If Client
terminates this Agreement as the result of a breach by INSpire which has
remained uncured past the time frames outlined in section 4 a. of this
Agreement INSpire shall promptly refund all fees paid by Client under this
Agreement in accordance with the following refund schedule:
i. 100% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs within one year from the Effective Date
of this Agreement or within one year from the date of Acceptance (as
defined in schedule 5) of the System by Client, whichever is later.
ii. 50% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after one year, but less than two years,
from the date of this Agreement or the date of Acceptance of the
System by Client, whichever is later.
iii. 25% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after two years, but less than three
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
iv. 12.5% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after three years, but less than four
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
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v. 6.25% of all fees (License, Implementation & Maintenance) paid by
Client if the breach occurs after four years, but less than five
years, from the date of this Agreement or the date of Acceptance of
the System by Client, whichever is later.
13. This agreement shall be governed by any applicable provisions of the
Uniform Commercial Code, unless the provisions of this Agreement are
inconsistent therewith.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of Pennsylvania, excluding that body of laws of such
state dealing with conflicts of law.
15 This Agreement supersedes all prior communications and agreements between
the parties relating to the subject matter of this Agreement and
constitutes the full understanding between the parties with respect
thereto. No waiver of any provision of this Agreement or of any breach and
no modification or supplement hereto shall be binding, unless in writing
and signed by an officer of INSpire and Client, and no waiver shall apply
to any subsequent breach of the same or similar provision.
16. A waiver of a breach or default under this Agreement shall not be a waiver
of any other breach or default. Failure of either party to enforce
compliance with any term or condition of this Agreement shall not
constitute a waiver of such term or condition unless accompanied by a
clear written statement that such term or condition is waived.
17. Except as otherwise provided in this Agreement, any notices required or
permitted to be given under this Agreement shall be in writing and shall
be deemed given if delivered in person or when sent by registered or
certified mail (return receipt requested) with postage and registration or
certification fees thereon prepaid, addressed to the party at its address
set forth below:
If to Inspire: ATTN: President
Inspire Insurance Solutions, Inc.
300 Burnett Street
Fort Worth, TX 76102
If to Bexar: ATTN: President
Bexar, Inc.
2356 Hassell Rd. Suite A
Hoffman Estates, Illinois 60195
If to Client: Jack T. Carballo
Vice President of Insurance Operations
Philadelphia Insurance Companies
One Bala Plaza, Suite 100
Bala Cynwyd, PA 19004
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18. Termination of this Agreement shall not terminate or negate any
obligations of either party which have accrued prior to termination and
which, by their nature, are intended to survive termination, including,
but not limited to, Sections 5, 6, 7 and any other provisions under which
Client is entitled to a refund of fees.
19. Prior to commencement of any services under this Agreement, INSpire shall
place and maintain with responsible insurance carriers reasonably
acceptable to Client, policies of insurance described in this section with
the coverage amounts required herein. Inspire shall, if requested by
Client, deliver to Client copies of certificates evidencing such
insurance, which shall designate Client as an Additional Insured on the
Commercial General Liability policy only (not a named insured) and which
shall provide thirty (30) days prior written notice to Client in the event
of cancellation or other termination of same, as follows:
(a) Comprehensive General Liability. INSpire shall procure
Comprehensive General Liability coverage including Blanket
Contractual, Broad Form Property Damage, Completed Operations and
Independent Contractor's Liability with a minimum limit of liability
in the amount of $2,000,000. This coverage may be provided under
INSpire's Umbrella Liability policy and shall be in the form of
"occurrence" coverage.
(b) Workers' Compensation. INSpire shall procure Workers'
Compensation at the statutory limits in compliance with the
applicable State and Federal Laws.
(c) E & 0 and Professional Liability. INSpire shall procure Error
and Omission and Professional Liability coverage with a minimum
limit of liability of $2,000,000 each claim. This coverage shall be
in the form of "claims made" coverage. This coverage shall not have
any retention or deductible in excess of $250,000 per claim.
(d) Comprehensive Automobile Liability. INSpire shall procure
Comprehensive Automobile Liability Insurance including coverage for
Personal Injury, Bodily Injury and Property Damage with a minimum
combined single limit of liability of $l,000,000.
(e) Directors & Officers Liability. INSpire shall procure Directors
& Officers Liability coverage with a minimum limit of liability of
$5,000,000 each claim. This coverage shall be in the form of "claims
made" coverage. This coverage shall not have any retention or
deductible in excess of $250,000 per claim.
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IN WITNESS HEREOF the parties have caused the signatures of their duly
authorized officers to be hereunto affixed.
INSpire Insurance Solutions, Inc.
License Agreement
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
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Bexar, Inc. agrees to be bound by this Agreement as a guarantor of INSpire's
obligations with respect to the MARS Software.
BEXAR, INC.
By: /s/ RIC DEBEJAR
------------------------------
Name: RIC DEBEJAR
------------------------------
Title: President
------------------------------
Date: January 25, 1999
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Supplemental Conditions
Schedule 1 -- Hardware
Hardware Requirements
The System must be capable of supporting 200 simultaneous users with the
following response time:
*Local Connections -- 5 seconds or less
*Remote Connections -- 10 seconds or less
The System must be fully functional in the following environments:
Workstation:
Workstations consist of personal computers running Window 95 or Windows 98 or
Windows NT Workstation. Machines should be 300MH Pentium Processor with a
minimum of 64MB of memory for Win95/98 or 64MB of memory for Windows NT
Workstation. The workstations connect to the network using Novell NetWare Client
32 Version 2.x or higher. The display should be SVGA (800x600x256) capable. The
system does not require any local disk storage on the client machine.
System/Database Servers:
Servers consist of Compaq Proliant Series machines using the Compaq internal
disk array or Data General Aviion series machines utilizing a Clariion disk
array in raid 5 configuration. The database server should be any machine running
an operating system (OS), for which a version of Oracle is available. Operating
systems include Novell NetWare 3.12 or higher, Windows NT 3.51 or higher.
Local Area Network
The network environment is a 10/100 MB Ethernet network using Intel 10/100
network interface cards and a mix of Intel and Synoptics 10/100 hubs. These are
connected to the servers via a Cisco catalyst 5500 LAN switch.
Wide Area Network:
The wide area network is a combination of frame relay and dial-up networking.
The frame relay network is a point to point methodology, using Cisco routers and
Motorola FT100 CSU/DSU's to link to the home office. The dial-up network
utilizes VPN or Internet tunneling technology to connect to the home office. All
wide area strategies use Citrix as the operating client for remote processing.
The System must be compatible with multiple Citrix Winframe and Metaframe
products.
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Schedule 1 -- Hardware, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
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Supplemental Conditions
Schedule 2 -- Payment Terms
Payment Terms
A. License Agreement
1. 25% of license fee upon execution of License Agreement.
2. 75% of license fee upon Acceptance, as defined in
Schedule 5 of this Agreement.
Client may, at its sole option, elect to accept and use any
one of the individual components that collectively
comprise the System (as such components are identified
in Schedule 4 of this Agreement) even though the
remaining components may not collectively meet the
Acceptance Criteria referenced in Schedule 5 of this
Agreement. If Client elects such an option, then Client
must pay INSpire the full amount of the license fee
applicable to such component as listed on Schedule 6 of
this Agreement.
B. All work performed by INSpire under (i) Section 4(a) for
client-caused errors; (ii) Schedule 3 for training in excess
of training included in the license fees; or (iii) Schedule 7
for implementation, shall be billed on an hourly basis each
month in accordance with the rates specified in Schedule 7.
All payments shall be due and payable within thirty (30) days
of receipt of invoice.
C. Other Expenses
In addition to the payments provided for above, Client will
pay INSpire for the following miscellaneous personnel
expenses:
1. Mileage at the IRS published rate in force on the date
incurred.
2. All other reasonable travel and lodging expense incurred
by INSpire personnel pursuant to this Agreement and
approved in advance by Client.
3. Out-of-pocket expenses for meals or other expenses not
specified elsewhere in this schedule and approved in
advance by Client.
4. Any work performed by INSpire at the written request of
Client outside the scope of services already contracted
for within the terms of this Agreement will be billed by
INSpire on a time and expense basis at the rates
specified in Schedule 7. All work performed on a time
and expense basis must be approved by Client in writing
before actually being performed by INSpire. If such work
is not approved by Client in writing before such work is
performed then Client is not obligated to pay for the
work.
D. Source Code
Payment of the license fee guarantees to Client the source
code for the System (excluding the ValueRate and M.A.R.S.
Software), and INSpire shall deliver such source code
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Schedule 2 -- Payment Terms, continued
(including a copy of all source code documentation relating
thereto) promptly following Acceptance. With respect to the
M.A.R.S. Software, Bexar agrees to enter into a mutually
acceptable source code escrow agreement with Client within
thirty days of the Effective Date of this Agreement. Among
other terms customarily found in such agreements, Bexar will
agree to a release of the M.A.R.S. Software source code to
Client in the event INSpire ceases to be a going concern,
INSpire commences a voluntary bankruptcy proceeding, or an
involuntary bankruptcy proceeding is commenced against
INSpire, or INSpire fails to support and maintain the M.A.R.S.
Software in accordance with the terms of this Agreement.
With respect to the ValueRate Software, INSpire agrees to
enter into a mutually acceptable source code escrow agreement
with Client within thirty days of the Effective Date of this
Agreement. Among other terms customarily found in such
agreements, INSpire will agree to a release of the ValueRate
Software source code to Client in the event INSpire ceases to
be a going concern, INSpire commences a voluntary bankruptcy
proceeding, or an involuntary bankruptcy proceeding is
commenced against INSpire, or INSpire fails to support and
maintain the ValueRate Software in accordance with the terms
of this Agreement. INSpire warrants that it has the authority
of Cover All Technologies, Inc. to enter into such an escrow
agreement regarding the ValueRate Software source code.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
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Supplemental Conditions
Schedule 3 -- Training/Installation/Documentation
Training
A. The training classes specified below in Section B for the
System as accepted without customizations (including both user
and operational training) are included in the license fee.
Training courses are conducted by INSpire personnel at the
Client site in a classroom setting equipped with workstations,
overhead projectors, a visual display unit, a flip chart,
and/or a dry erase board whenever possible. Course books are
provided for up to twenty students in each class. Workshops or
exercises are included in the class in order to provide the
participants with practical hands-on use of the system.
Additional or customized training requested by the Client is
available on a time and materials basis at the rates specified
in Schedule 7.
B. The following is a list of Base System classes (one session
each) included in the license fee for Client:
WPC User Courses
1. Administrator/Operator Training -- INSpire 200
2. Premium System Training (including Billing) -- INSpire 107
3. Claims System Training -- INSpire 112
4. Financials Training -- INSpire 114
5. Reference File Training -- INSpire 119
6. Open Item Reconciliation System Training -- INSpire 111
7. Agency System Training -- INSpire 105
ValueRate
8. System Administration Training
9. Policy Administration and Rating Training
M.A.R.S.
10. User Training, Class 1 (8 hours)
11. Technical Training, Class 2 (8 hours)
C. Training is limited to a reasonable number of people per
class, not to exceed 20. Additional materials and training for
more than twenty people will be provided on a time and
materials basis at the fees stated in Schedule 7.
Installation
A. Installation of the System is included in the implementation fees.
Installation consists of: INSpire's technicians loading the System on Client's
servers, network & workstations. Value Rate, M.A.R.S. & WPC will be installed on
both Client's LAN and CITRIX servers. The following products/components are
included as part of Installation:
14
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15
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Schedule 3 -- Training/Installation/Documentation, continued
o Value Rate software with the following specifications:
- Oracle database.
- Capable of running all states (excluding Massachusetts automobile &
all coverage lines for Hawaii).
- Configured to support the following six coverages: General
Liability, Inland Marine, Crime, Glass, Commercial Auto, and Commercial
Property (inclusive of Boiler & Machinery, Earthquake, & Flood).
- Configured with Client's individual State rate effective dates.
- Configured with Client's individual State loss cost multipliers.
- Configured with Client's modifications to accept product codes &
expanded producer profile.
o Transfluent interface software capable of processing all states (excluding
Massachusetts automobile & all coverage lines for Hawaii).
o 32-bit WPC software with an Oracle database.
o PSP software.
o Batch Scripts needed to run Transfluent interface.
o Open Door software needed to run Transfluent interface.
o Managerial and Actuarial Reporting System (M.A.R.S.) reporting Software.
Documentation
A. The Client is provided with one printed set of user documentation
reflecting the System. The Client is permitted to make additional
copies as necessary.
B Documentation is also available on-line using Microsoft Word and
Doc-To-Help.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
15
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System Specifications
Schedule 4
System Specifications
The System Specifications are comprised of the following:
o Value Rate -- as collectively outlined, defined and described in the
Commercial Package Policy Application Description Manual dated 12/02/98,
the Commercial Auto Application Description Manual dated 12/02/98 and the
Philadelphia Insurance Companies' Commercial Umbrella Underwriting
Guideline dated 1/1/97.
o Transfluent, a software product which maps and translates data from one
format to another. This translation is controlled by user configurable
parameters. In the INSpire total processing solution, these parameters are
pre-set and are used to convert data which has been entered and calculated
in Value Rate to WPC on a nightly basis. This facilitates a single point
of entry. Inclusive in this component is the tool known as "Open Door". It
is hereby warranted by INSpire that the nightly batch process performed
via this Transfluent component of the System will take no longer than two
hours to process a minimum of 200 policies a night. It is agreed that the
nightly batch process will be performed only on a stand-alone machine as
described in Schedule 1 of this Agreement. "The Nightly Batch Process" is
defined as inclusive of all of the following functions:
a.) the extraction of data from Value Rate
b.) the conversion of data from Value Rate to WPC using
Transfluent
c.) executing all edit processing using WPC's Open Door facility
d.) executing all WPC batch jobs, not including printing, needed
to update the WPC database
o WPC -- as outlined, defined and described in the WPC Windows into Property
and Casualty Base Functionality Document, Version 6.
o PSP Policy Set Production -- as outlined, defined and described in the PSP
Base Functionality Document (WPC/EmPOWER Interface) dated 12/02/98
o Base Reports - as presented in the WPC Base Reports Documentation
o Managerial and Actuarial Reporting System (MARS) report writer software
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
16
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17
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Systems Acceptance Test
Schedule 5
Systems Acceptance Test
1. Within twenty (20) business days of completion of
implementation of the System in accordance with Schedule 7,
Client, with INSpire's assistance, shall test the functional
capabilities of the System and determine whether the System
satisfies all of the criteria set forth on the attachment to
this Schedule 5 (collectively, the "Acceptance Criteria").
If the System satisfies all of the Acceptance Criteria as
reasonably determined by Client, the System shall be deemed to
be accepted ("Acceptance"). If any of the criteria are not
satisfied as reasonably determined by Client, the System shall
not be accepted and INSpire shall have as many additional days
as they feel necessary to remedy the problems which caused the
System to fail to satisfy the Acceptance Criteria. When
INSpire advises Client that the problems have been remedied
the parties shall again determine whether the System satisfies
all of the Acceptance Criteria. Notwithstanding the above, if
the System fails to satisfy all of the Acceptance Criteria as
reasonably determined by Client by August 1, 1999 Client shall
have the option, in its sole discretion, to (i) terminate this
Agreement immediately and receive a refund of all license,
maintenance and implementation fees paid hereunder; or (ii)
allow INSpire to continue to attempt to remedy the problems
which caused the System to fail to satisfy all of the
Acceptance Criteria. If Client elects to allow INSpire to
continue past August 1, 1999 with its attempts to remedy the
problems causing failure to satisfy all of the Acceptance
Criteria, Client still retains its right to terminate this
Agreement at any time thereafter and receive a refund of all
license, maintenance and implementation fees paid hereunder,
within 10 days of termination.
In no event shall Client be obligated to accept the System if
the Acceptance Criteria have not been satisfied within the
time frame indicated above or any other time frame which the
parties may, in Client's sole discretion, agree to in writing.
The Acceptance test will be performed on the hardware
specified on Schedule 1 of this Agreement.
"ACCEPTANCE CRITERIA"
1. The Value Rate software component of the System must allow the Client to:
o Enter Client test package policies including independent (non-ISO)
filed coverages
o Specify Client's product codes, bill plans & commission plans
o Accurately rate test policies with standard ISO
o rates & Client specified rate effective dates and loss cost
multipliers for the 48 states and coverages identified in the
definition of Installation in Schedule 3 of this Agreement.
o Accurately rate test policies with rate overrides.
o Create appropriate rating worksheets
o Convert policies from quote status to bound status.
17
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18
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Schedule 5, continued
o Fully print test policies including declaration pages,
sub-declarations pages and all standard ISO endorsements.
2. The Transfluent software component of the System must allow the Client to:
o Successfully transport all applicable and necessary fields
from Value Rate to WPC as per the "Nightly Batch Process"
defined under Schedule 4, System Specifications, of this
Agreement.
3. The WPC software component of the System must allow the Client to:
o Accurately capture premium and policy data from the Value Rate
system including but not limited to product code, billing,
commission and statistical information.
o Accurately perform customer service functions
o Accurately enter Cash payment for each of the bill types.
o Accurately create a cash adjustment.
o Accurately create a refund a check.
o Accurately enter flat & midterm cancellations.
4. The PSP software component of the System must allow the Client to run
daily cycles to:
o Accurately print agency, direct and account bills.
o Accurately print commission statements.
o Accurately print reports as specified by the INSpire Base
Reports documentation referenced in Schedule 4 of this
Agreement.
o Accurately enter and process claims
5. The M.A.R.S. software component of the System must allow the Client to
define, extract and print management reports from the data contained
within the ValueRate and WPC software components of the System.
6. In addition to the specific functionality of the items listed in
paragraphs 1. through 5. above, the functionality of all processes
specifically identified in the documentation referenced in Schedule 4 of
this Agreement as System Specifications are considered part of this
Acceptance Criteria.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
18
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19
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License Costs
Schedule 6
License Fee Schedule
The System includes the following:
- --------------------------------------------------------------------------------
Windows into Property & Casualty (WPC) System, as per
Schedule 4
License Fee: $645,000
- --------------------------------------------------------------------------------
Policy Set Production (PSP) as per Schedule 4
License Fee: $ 30,000
- --------------------------------------------------------------------------------
* ValueRate as per Schedule 4
- Commercial Package Policy (excluding HI)
- Commercial Auto with Garage (excluding MA and HI)
- Commercial Texas Auto
- Commercial Umbrella Policy (all states)
License Fee: $560,700
- --------------------------------------------------------------------------------
** Managerial and Actuarial Reporting System (M.A.R.S.)
software as per Schedule 4
License Fee: $ 88,800
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total License Fee: 1,324,500
- --------------------------------------------------------------------------------
* Owned by Cover All Technologies, Inc.** Owned by Bexar, Inc.
19
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20
Schedule 6, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
20
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21
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Implementation Services
Schedule 7
Implementation Services
INSpire shall implement the System for Client by June 1, 1999 (the
"Implementation Date"). Implementation shall consist of successful
completion of the following tasks (collectively, the "Implementation
Tasks"):
1. ValueRate will be modified to support Client's Product Code and Account
Number scheme.
2. ValueRate, Transfluent and WPC will be modified to accommodate Client's
expanded Producer Profile.
3. Satisfaction of the Acceptance Criteria in accordance with Schedule 5.
A flat fee of $30,000 will be paid by Client for the implementation of the
WPC component of the System in accordance with the payment terms listed on
Schedule 2, section A of this Agreement. (i.e., 25% upon execution and 75%
upon Acceptance)
A flat fee of $30,000 will be paid by Client for the implementation of the
ValueRate component of the System in accordance with the payment terms
listed on Schedule 2, section A of this Agreement. (i.e., 25% upon
execution and 75% upon Acceptance)
A flat fee of $105,000 will be paid by Client for INSpire to successfully
implement items #1 and #2 listed above under Implementation Services as
well as for INSpire to perform all functions necessary (inclusive of
building and populating all user tables) in order for the System to be
tested by Client in accordance with the System Acceptance Test listed on
Schedule 5 of this Agreement. Payment of this flat fee of $105,000 will be
in accordance with the payment terms listed on Schedule 2, section A of
this Agreement. (i.e., 25% upon execution and 75% upon Acceptance)
A flat fee of $1,200 will be paid by Client for the implementation of the
M.A.R.S. component of the System in accordance with the payment terms
listed on Schedule 2, section A of this Agreement. (i.e., 25% upon
execution and 75% upon Acceptance)
The implementation and license fees agreed to in this Agreement do not
include any travel and lodging expense incurred by INSpire personnel in
meeting INSpire's obligations under this Agreement. Such expenses will be
paid by Client in accordance with Schedule 2 of this Agreement.
Except for services rendered for a "flat fee", it is agreed that INSpire
will bill all work performed on an hourly basis as allowed for in this
Agreement at a rate of $150.00 per hour with the exception of the
following:
INSpire will provide to Client, free of charge, 75 hours of Consulting
time to assist Client with the development of Interfaces with the WPC
product.
21
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22
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Schedule 7, continued
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
22
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23
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System Maintenance
Schedule 8
This Schedule 8 shall become effective only upon Acceptance of the System
under Schedule 5.
INSpire shall provide Client with System maintenance services on the terms
described below, In the event of a conflict between the terms of this
Schedule 8 and the Agreement (including the other Schedules) the terms of
this Schedule 8 shall control.
Warranty
INSpire warrants that while this Schedule is in effect, the System
will conform to the System Specifications. INSpire will, at its sole
cost and expense correct any failures or non-conformity(ies) within
the following time frames corresponding to the severity level of the
failure/non-conformity:
i. Priority A - INSpire will acknowledge Priority A
failures/non-conformities within one (1) hour during normal
business hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two
(2) hours outside of normal business hours from the time the
call was placed by Client. INSpire will provide a fix or
workaround within the later of twenty (24) hours from the time
the call was placed by Client or at the start of the first
business day after the call.
ii. Priority B - INSpire will acknowledge Priority B
failures/non-conformities within one (1) hour during normal
business hours, 8:00 a.m. CST -- 5:00 p.m. CST and within two
(2) hours outside of normal business hours from the time the
call was placed by Client. INSpire will provide a fix or
workaround within seventy two (72) hours from the time the
call was placed by Client.
iii. Priority C - INSpire will acknowledge Priority C
failures/non-conformities within seventy two (72) hours from
the time the call was placed by Client. INSpire will provide a
fix or workaround within seven (7) days from the time the call
was placed by Client.
For any failures/non-conformities for which INSpire provides a
workaround, INSpire will provide a schedule for the fix of such
failure/non-conformities and INSpire will use its reasonable best
efforts to provide such fix within thirty (30) days after the call
was placed by Client.
For purposes of this Schedule 8, the following definitions apply:
Priority A means a failure/non-conformity that renders the System
inoperative or causes the System to fail catastrophically.
Priority B means a failure/non-conformity that significantly
degrades performance of the System or materially restricts Client's
use of the System.
Priority C means a failure/non-conformity that causes only a minor
impact on the use of the System.
23
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24
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Schedule 8, continued
The priority level of each reported failure/non-conformity will be
determined jointly between Client and INSpire at the time the
failure/non-conformity is reported.
If the failure of the System to conform to the System
Specifications is due to Client created error, Client agrees
to pay (at the time and materials rates specified in Schedule
2) for the services rendered in analyzing and correcting the
failure, provided that any such non-conformity(ies) are
corrected to the reasonable satisfaction of Client.
Enhancements
INSpire shall make available all version upgrades and
enhancements to the System. Client shall not be charged
a license fee for any version upgrades and enhancements
developed during the term of this Schedule.
Telephone Support
Inspire shall provide technical support via toll-free
telephone during the hours of 8:00 a.m. CST -- 5:00 p.m.
CST Monday through Friday excluding national holidays.
All calls placed before 1 P.M. shall be returned before
5 P.M. that same day. All other calls shall be returned
before 11 A.M. the next business day.
Update Services
INSpire will provide the Client with periodic releases of the System
("Updates") which contain error corrections and/or minor changes to the
existing feature/functionality of the System. Each Update will consist of
a set of programs and files made available in the form of machine readable
media and will be accompanied by a level of documentation adequate to
inform Client of the problems resolved by such Update (including any
significant differences resulting from such Update which are known by
INSpire) and how to install such Update.
Support Services
INSpire will provide support services (in addition to the basic Support
Services described above) in the form of "ISO Updates." Such ISO Update
services are as follows:
INSpire will issue periodic ISO Update software releases to the Client.
Such software releases (which are considered part of the System) shall be
licensed to the Client for use in accordance with the licensing provisions
of this Agreement. In addition, Client shall be responsible to obtain any
other license (from ISO) which may be required to permit its use of such
ISO Update software. Each ISO Update software release will consist of a
set of programs and files made available in the form of machine readable
media and will be accompanied by a level of documentation adequate to
inform Client of the changes and/or additions to the ISO rules covered by
such ISO Update software release. Additionally, ISO Updates will reflect
changes and/or additions to ISO rules for all of the software programs
forming the System. ISO
24
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25
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Schedule 8, continued
Updates will be based upon (1) normal and customary ISO rule changes
and/or additions and (2) upon INSpire's standard interpretation of any
such ISO rule change and/or new ISO rule. ISO Updates shall not include
any Federal, state or other requirements which are not comprised in or
reflected by a standard ISO rule change and/or addition. Client shall
install all ISO Updates in a timely manner as reasonably determined by
Client.
Extensive ISO Updates
"Extensive ISO Updates" are software releases which reflect
any ISO rule changes and/or additions which are in
excess of the normal and customary ISO rule changes
and/or additions addressed by the ISO Update services
described in the preceding paragraph. Any such Extensive
ISO Update may be licensed by Client in accordance with
and subject to the licensing provisions of this
Agreement. Each Extensive ISO Update will consist of a
set of programs and files made available in the form of
machine readable media and will be accompanied by a
level of documentation adequate to inform Client of the
changes and/or additions to the ISO rules covered by
such Update as well as how to install such Update.
Extensive ISO Updates are based upon INSpire's standard
interpretation of any such extensive ISO rule change
and/or new ISO rule.
Term
This Schedule shall take effect on the date the System is
accepted by Client in accordance with the terms of
Schedule 5 of this Agreement and shall continue until
terminated by Client, with or without cause, upon thirty
(30) days prior written notice to INSpire. Upon
termination, INSpire shall refund to Client any
maintenance fees paid in advance hereunder.
Renewal Changes
INSpire reserves the right to change, for each year this
Schedule remains in effect after the first year, the
fees charged hereunder, provided that such fees shall
not be increased per year by more than five percent (5%)
of the dollar amount charged during the expiring year.
Expenses
Client shall reimburse INSpire in accordance with Schedule 2,
Section C.
Fees
Upon Acceptance, Inspire shall invoice and Client shall pay within 10
days the amount of $198,675.00(the "Maintenance Fee") for one year of
coverage under this Schedule. Thereafter, on every anniversary of the date
of Acceptance, so long as this Schedule remains in effect, INSpire shall
invoice and Client shall pay the dollar
25
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26
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Schedule 8, continued
amount equal to 18% of the total license fee paid under this Agreement.
Client shall pay all such invoices within ten (10) days.
Source Code
INSpire shall provide Client with a copy of the source code (and
accompanying documentation) for all software provided under this Schedule
(excluding the ValueRate Software, M.A.R.S. Software and any other third
party software). All such source code shall be provided to Client within
thirty (30) days of the date upon which the corresponding object code is
provided.
Accepted By:
INSPIRE INSURANCE SOLUTIONS, INC. PHILADELPHIA CONSOLIDATED
HOLDING CORP.
on behalf of itself and its subsidiaries
BY: /s/ W. J. SMITH, III BY: /s/ JAMES J. MAGUIRE, JR.
----------------------------- -------------------------------------
(Authorized Officer) (Authorized Officer)
Name: W. J. SMITH, III Name: JAMES J. MAGUIRE, JR.
--------------------------- -----------------------------------
Title: President & COO Title: Executive Vice President & COO
-------------------------- ----------------------------------
Address: 300 Burnett Street Address: One Bala Plaza, Ste. 100
Fort Worth, TX 76102 Bala Cynwyd, PA 19004
Date: January 19, 1999 Date: December 31, 1998
---------------------- ------------------------
26
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