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EXHIBIT 10.14(2)
LICENCE OF COMPUTER SOFTWARE
THIS AGREEMENT is dated this 30 day of August, 1995.
BETWEEN: TRITECH FINANCIAL SYSTEMS INC.,
a Corporation with a place of business at:
2 Eva Road, Suite 201
Etobicoke, Ontario M9C 2A8
(hereinafter referred to as the "Vendor")
AND:
Symons International Group Inc.
a Corporation with a place of business at:
4720 Kingsway Drive
Indianapolis, Indiana, 46205
(hereinafter referred to as the "Client")
WHEREAS the Vendor is the owner of the right, title and interest in a
General Insurance Management System (GIMS) as more specifically
described hereinafter;
AND WHEREAS the Client is desirous of obtaining a licence for the use
of GIMS;
NOW THEREFORE in consideration of the mutual covenants herein
contained the parties hereto agree as follows:
A. DEFINITIONS
In this Agreement:
(a) ACCEPTANCE TEST means the Tests of the GIMS Application
Programs on the Hardware to be conducted in accordance with
Section 5 hereof in order to: (1) verify that the GIMS Application
Programs meet the Functional Specifications and (ii) verify that
adequate performance of the System running the GIMS Application
Programs against appropriate data sets under a variety of conditions.
(b) GIMS APPLICATION PROGRAMS mean the GIMS programs
(together with the source code) described in Exhibit A.
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(c) CLIENT MODIFICATIONS means modifications made to the Software at any time
hereafter by other than the Vendor and without the assistance or
supervision of the Vendor.
(d) DOCUMENTATION means the documentation outlined in Exhibit A.
(e) FUNCTIONAL SPECIFICATIONS means the GIMS System specifications attached
hereto as Exhibit A.
(f) HARDWARE means the computer hardware approved by the Vendor and as
described in Exhibit C.
(g) INSTALLATION SITE means the location where the System will first be
installed.
(h) SOFTWARE means collectively the GIMS Application Programs, and any other
software provided in this Agreement and any and all additions, enhancements
and modifications thereto provided by Vendor, any and all custom software
developed by Vendor for use in connection with any of the foregoing and any
and all adaptions, and derivatives thereof provided by Vendor, whether in
source code, object code, tangible, intangible or any other form, and any
portion or copy of any of the foregoing.
(i) LICENCE, IMPROVEMENT & SUPPORT AGREEMENT (LISA) means the agreement so
named between the parties hereto.
(j) SYSTEM means the Hardware and Software working together.
(k) VENDOR MAINTENANCE means maintenance provided by the Vendor pursuant to the
LISA.
(l) ZIM means 4th Generation Language/DBMS as provided by Sterling Software
International (Canada) Inc..
(m) GROSS ANNUAL PREMIUM means the Gross written insurance premiums of the
Client's business for the latest year end, processed through the GIMS
Application Programs, excluding sales taxes and service charges.
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(n) COPIES, means the number of licenced copies referred to in this
agreement. Each copy can only be used on one computer system
at a time. The Client is licenced for Two copies under this
agreement, any changes to the number of copies used by the
Client must be authorized by the Vendor.
(o) SITES, means the locations where GIMS is to be installed on the
Client's computers. The Vendor will install GIMS at Two of the
Client's sites, Indianapolis, Indiana and Ft. Lauderdale, Florida.
(p) Initial three year term shall commence on January 1, 1996
1. LICENCE
If the Client accepts the GIMS Application Programs, the Client shall receive a
non-exclusive, perpetual, non-transferable, except as provided herein, licence
for the GIMS Application Programs provided pursuant to the terms of this
Agreement.
At no additional cost to the Client, the Client may transfer the use of the
GIMS Application Programs to an alternate computer system of any size and/or
transfer the GIMS Application Programs to another location upon written notice
to the Vendor. However, in no event shall the client use more than the
licenced number of copies of the GIMS Application Programs without the payment
of additional consideration to the Vendor.
The GIMS software licence fees hereto shall be based on the Gross Annual
Premium as per Schedule B.
2. RESPONSIBILITIES
In consideration of the fees stated in Exhibit D hereto the Vendor shall:
(a) design and program the GIMS Applications Programs to meet the
Functional Specifications attached hereto as Exhibit A approved
by the Client including Quality and Functional Assurance
testing;
(b) develop plans for each Acceptance Test as well as a plan for
conversion from the present procedures to the proposed system.
The conversion will be accomplished by a mutually agreed upon
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method. The Client will be expected to verify the information being
converted;
(c) assist the Client in conducting Acceptance Tests. The Vendor shall
install all of the Software on the hardware provided by the Client at the
sites defined herein and shall make the Software ready for use;
(d) train the Client's key personnel in the initial use of each of the
GIMS Application Programs as well as in the use of ZIM as related
to GIMS. Training will be performed at the beginning of each phase
of the Client's delivery schedule; and
(e) be available for problem resolution during the Acceptance Test and
conversion of the System.
The Client shall:
(a) approve the Functional Specifications once satisfied with the contents;
(b) approve the Acceptance Test plan once satisfied with the contents;
(c) work with the Vendor and approve each Acceptance Test when the
corresponding GIMS Application Programs meet the respective
Functional Specifications;
(d) develop comprehensive Acceptance Test Data for the System and
prepare the test data, the transactions and files to perform the
Acceptance Tests;
(e) provide the Hardware in proper operating condition;
(f) provide qualified personnel to operate the system; and
(g) perform the Acceptance Tests.
3. CONFIDENTIALITY
The Client shall keep confidential and not disclose or permit access to the GIMS
Application Programs or Documentation to any person except those
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persons permitted to have access to the GIMS Application Programs and
Documentation under this Section 3. The Client shall grant access to the
GIMS Application Programs and Documentation only to such limited number of
employees and other persons providing services to the Client as is
necessary for purposes specifically related to a use of the GIMS
Application Programs or Documentation permitted by this Agreement. The
Client shall advise all persons who are permitted by this Agreement to have
access to the GIMS Application Programs or Documentation of the
confidential and proprietary nature of the GIMS Application Programs and
Documentation, and of the restrictions imposed by this Agreement. The
Vendor shall have the right, upon reasonable notice, and during business
hours, to enter upon the premises of the Client to make such examination as
it deems necessary to ensure compliance by the Client with the terms of
this Agreement.
4. IMPLEMENTATION SCHEDULE
The Client and the Vendor shall perform each party's assigned
responsibilities in accordance with the implementation Schedule attached
hereto as Exhibit D.
5. ACCEPTANCE TEST
At no additional cost, the Vendor shall install the Software on the
hardware provided by the Client at the sites defined herein. After the
completion of installation, the Vendor shall perform a verification test to
validate that all components of the Software have been installed and have
been made ready for productive use.
The Acceptance Tests of the System shall be conducted and approved by the
Client. Each module capable of standalone operation shall be tested on a
standalone basis and all modules shall be tested operating together as an
integrated whole. During the Acceptance Tests, comprehensive and
representative sets of transactions supplied by the Client and associated
with the GIMS Application Programs under testing are processed and results
are verified for all components of each of the GIMS Application Programs
under testing. The tests will be completed and the Vendor informed in
writing of errors. Any errors or modifications will be corrected by the
Vendor for re-testing at no additional cost to the Client.
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Following the date of completion of installation of the GIMS Application
Programs by the Vendor on the Hardware provided by the Client, the Client
shall conduct Acceptance Tests for the GIMS Application Programs as
developed by the Vendor under Section 2, for the period of sixty (60)
consecutive calendar days including two (2) month end processing cycles,
several Daily and Weekly cycles, commencing on the implementation date of
the last accepted module of the GIMS Application Programs, for the purpose
of determining if, the GIMS Application Programs conforms to the Functional
Specifications and that the GIMS Application Programs performs
satisfactorily under production conditions. During the Acceptance Test the
Client shall notify the Vendor in writing specifying in reasonable detail
in what respects, if any, the GIMS Application Programs are failing to
perform. The Vendor shall immediately correct any GIMS Application
Programs deficiencies disclosed by the Acceptance Test at no additional
cost to the Client. At the end of the sixty (60) consecutive calendar day
period, the Client shall inform the Vendor of either its acceptance or
rejection of the GIMS Application Programs. In the event that the GIMS
Application Programs are rejected by the Client, the Client may choose to
advise the Vendor of the deficiency and give a further sixty (60) day
period to remedy the deficiency. In the event that the GIMS Application
Programs are rejected by the Client, the Client may immediately terminate
the Agreement as provided by the Agreement.
6. DOCUMENTATION
At no additional cost to the Client, the Vendor shall supply all
Documentation to the Client as outlined in the Functional Specifications
attached hereto in Exhibit A.
7. COPIES
The Client shall have the right to (i) use the licenced number of machine
readable copies of the GIMS Application Programs in object code form for
the internal information processing needs of the Client in connection with
its business; (ii) use one machine readable copy of the GIMS Application
Programs in source code form solely for purposes of enabling the Client to
make modifications to the GIMS Application Programs; and (iii) make and use
additional machine readable copies of the GIMS Application Programs in
object code form and one visually readable copy of the GIMS Application
Programs in source code form solely for backup and archival
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purposes. The Client may make such limited number of copies of the
Documentation as is necessary solely for purposes of enabling the Client
to use the GIMS Application Programs in the manner permitted by this
Agreement.
8. PAYMENT FOR ADDITIONAL COPIES OF GIMS
Upon Payment to the Vendor of licence fees as outlined in Exhibit "B"
attached hereto (plus then current implementation and customization costs
if applicable), the Client shall have the right to a licence of an
additional copy of the GIMS Application Programs in object code form and
shall have the right to use such copy, pursuant to the terms hereof, for
the internal information processing needs of the Client in connection with
its business as an additional copy or alternate modified version of any of
all such GIMS Application Programs on the Hardware or on other hardware
subject to written consent of the Vendor which consent shall not be
unreasonably withheld and advance written notice to the Vendor of the
purpose and business for which such copy is to be used and the model,
serial number and location for the central processing unit on which such
copy is to be used (if other than on the Hardware designated herein).
9. MODIFICATIONS
The Client shall have the right to modify the GIMS Application Programs for
any purpose consistent with the terms of this Agreement provided that, upon
the request of the Vendor, the Client shall promptly supply such
modifications in object code and source code form to the Vendor; provided
however that Vendor hereby agrees that any such modifications created by
Client shall remain the property of Client, irrespective of any right
Client shall grant Vendor for the use of such modifications. Vendor hereby
agrees that, in the event such Client modifications are integrated into the
GIMS Application Programs which Vendor shall market, sell or licence to
third parties, Client shall receive just compensation, as determined by
Client and Vendor in good faith, for that portion(s) of such Client
modifications, as shall be included in the GIMS Application Programs sold
to others. The Vendor will use all reasonable efforts to ensure that
future modifications, enhancements and upgrades to the GIMS Application
Programs will be compatible with the Client Modifications provided to the
Vendor hereunder.
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10. COMPUTER PROGRAMS DEVELOPED BY THE CLIENT
Computer programs and knowhow developed by the Client which are not
modified versions of GIMS Application Programs supplied by the Vendor
will remain in the possession and ownership of the Client and are not to
be included in the terms and conditions of this Agreements relating to the
GIMS Application Programs.
11. PROTECTION OF CLIENT INFORMATION
During the term of this Agreement and for a period of five (5) years from
either the date of expiration or date of termination of this Agreement,
whichever occurs later, the Vendor will regard and preserve as confidential
all the Client files and all information related to the business of the
Client, its parent, their subsidiary and affiliated companies, or its or
their clients, that may be obtained by the Vendor from any source as a
result of this Agreement. The Vendor will not, without first obtaining the
Client's written consent, disclose to any person, firm, or enterprise, or
use for its benefit, any information relating to the pricing, methods,
processes, financial data, lists, apparatus, statistics, programs,
research, development or related information of the Client, its parent,
their subsidiary or affiliated companies, or its or their clients,
concerning past, present or future business activities of said entities.
The Vendor shall keep confidential and not disclose or permit access to the
GIMS Application Programs or Documentation modified by the Client or by the
Vendor exclusively on behalf of the Client, to any person except those
persons permitted to have access to the GIMS Application Programs and
Documentation under this Section. The Vendor shall grant access to the
GIMS Application Programs and Documentation only to such limited number of
employees and other persons providing services to the Vendor as is
necessary for purposes specifically related to a use of the modified GIMS
Application Programs or Documentation permitted by this Agreement. The
Vendor shall advise all persons who are permitted by this Agreement to have
access to the modified GIMS Application Programs or Documentation of the
confidential and proprietary nature of the modified GIMS Application
Programs and Documentation, and of the restrictions imposed by this
Agreement. The Client shall have the right, upon reasonable notice, and
during business hours, to enter upon the premises of the Vendor to make
such examination as it deems necessary to ensure compliance by the Vendor
with the terms of this Agreement.
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12. LICENCE, IMPROVEMENT AND SUPPORT
A Licence, Improvement and Support Agreement must be executed between the
parties as an integral part of this "Licence of Computer Software" Agreement.
13. LIABILITY
Subject to the limitations and disclaimers herein, the Client shall be liable
for and shall indemnify and hold the Vendor harmless against any loss or damage
caused by the fault or negligence of the Client, its officers, employees, agents
and representatives. The Vendor shall be liable for and shall indemnify and
hold the Client harmless against any loss or damage caused by the fault or
negligence of the Vendor, its officers, employees, agents and representatives.
14. DISCLAIMER
The Vendor does not make and expressly disclaims, all representations and
warranties other than those expressly made herein, whether oral or written,
express or implied, by statute or otherwise, including without limitation any
warranties of merchantability or fitness for purpose. The Vendor shall in no
event be liable for economic, incidental, consequential, indirect, special,
punitive or exemplary damages, whether claimed under contract, tort or any other
legal remedy or theory or for any loss of or damage to the Client data or
programming. Any action under this Agreement against the Vendor by the Client
must be brought within one (1) year after the cause of action accrues.
15. LICENCE LIMITATION
Except as and only to the extent expressly permitted in this Agreement, the
Client shall not permit any third party to use, sub-licence, sell, assign,
convey, transfer, disclose, publish, display, copy, duplicate, adapt, merge,
embed, disassemble or otherwise deal with any of the GIMS Application Programs
or Documentation and, without limiting the foregoing, shall not use the GIMS
Application Programs to provide information processing, computer service bureau
or computer time sharing or similar services to
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any other person or entity or use the GIMS Application Programs or Documentation
for any purpose other than as expressly provided herein.
16. OWNERSHIP
As between the Vendor and the Client herein, title ownership rights to the GIMS
Application Programs, supplied by the Vendor, remain with the Vendor. No rights
or title of any kind whatsoever to any Software shall be acquired by the client
as a result of the transactions contemplated by this Agreement. The GIMS
Application Programs are agreed to be the Vendor's proprietary information and
trade secrets whether or not any portion is copyrighted or patented. The
Client's use of the GIMS Application Programs as a result of this Agreement may
not be assigned, licenced or otherwise transferred voluntarily, by operation of
law (including by amalgamation), or otherwise without the prior written consent
of the Vendor. In addition the GIMS Application Programs cannot be reproduced
or used by head offices, branch offices, or sister companies, however branch
offices may use the system online within the Client's database. The Client may
develop, on its own initiative, certain procedures and programs which are not
covered in this Agreement. These procedures and/or programs shall remain the
property of the Client. The Vendor shall not be responsible for support of
Client modifications.
17. PROPRIETARY RIGHTS
The Client acknowledges that the GIMS Application Programs and Documentation
have been developed or acquired by the Vendor at great expense to the Vendor,
that the GIMS Application Programs and Documentation are confidential and that
the Vendor has exclusive proprietary and other rights in the GIMS Application
Programs and Documentation including, without limitation, patent, copyright,
trademark, service mark, trade secret, and trade name rights (collectively the
"Proprietary Rights").
18. LIMITED RIGHTS
The rights granted to the Client under this Licence are only the rights of a
licencee and shall be narrowly construed. The Client acknowledges and
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agrees that (i) no title or ownership of the GIMS Application Programs or
Documentation is transferred to the Client hereby, (ii) the GIMS
Application Programs and Documentation and all Proprietary Rights are and
shall remain the exclusive property of the Vendor, and (iii) except for the
Licence, the Client shall not have any right or interest in the GIMS
Application Programs or Documentation. The Client shall not make any
claim or representation of ownership, or act as the owner, of any of the
GIMS Application Programs or Documentation or permit or facilitate the
performance of any act that is inconsistent with or in violation of this
Agreement or which might jeopardize the Proprietary Rights.
19. REPRODUCTION OF NOTICES
All copies of the GIMS Application Programs and Documentation shall remain
the exclusive property of the Vendor. The Client shall reproduce and
include all proprietary, confidentiality, trade secret and other notices on
all copies of the GIMS Application Programs and Documentation or on any
portion thereof and will not remove, alter, cover or obfuscate, nor permit
to be removed, altered, covered or obfuscated, any such notice from the
GIMS Application Programs or Documentation.
20. UNAUTHORIZED USE
The Client shall notify the Vendor immediately on becoming aware of the
possession, use, or knowledge of the GIMS Application Programs or
Documentation by any person or entity not authorized by this Agreement
to have such possession, use or knowledge, shall assist the Vendor in
stopping and preventing the recurrence of such possession, use or
knowledge, and shall cooperate with the Vendor, at the expense of the
Vendor, in any litigation deemed necessary by the Vendor to protect the
Proprietary Rights. Compliance by the Client with this Section shall not
be construed in any way as a waiver of the rights of the Vendor to recover
damages or obtain other relief against the Client in connection with any
such unauthorized possession, use and knowledge.
21. KNOW-HOW
The Client acknowledges that the performance of this Agreement may result
in the development of new concepts, methods, techniques, know-
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how, processes, adaptations, ideas and expressions of ideas. Any such
concepts, methods, techniques, know-how, processes, adaptations, ideas and
expressions of ideas which become part of or in any manner whatsoever
relate to the GIMS Application Programs or Documentation shall be and
remain the exclusive property of the Vendor and are hereby assigned by the
Client to the Vendor and the Client shall assist the Vendor, at the expense
of the Vendor, in obtaining evidence of title or ownership therein.
22. ADDITIONAL SERVICES
Any services which are performed by the Vendor at the request of the
Client, in addition to the grant of the Licence expressly provided for
herein, including, without limitation, programming services, training
services, data conversion services or products shall require the payment
of additional fees to the Vendor. Such fees shall be calculated utilizing
the Vendor's then current fees as agreed at that time. Any such services
or products provided by the Vendor to the Client shall be provided subject
to the disclaimers and limitations on liability provided for herein.
23. INVOICING AND PAYMENT
The Vendor shall invoice the Client for the payments as stated in the
payment and implementation schedule attached hereto as Exhibit D and such
invoices, shall be payable by the Client within thirty (30) days of the
Client's receipt of each said invoice.
Any additional fees for services provided by the Vendor to the Client
hereunder or under any other arrangement or agreement between the Vendor
and the Client shall be invoiced to the Client on a regular basis as work
is performed by the Vendor. The Vendor will provide sufficient invoicing
detail such that the Client may determine the particular tasks performed
and invoiced for by the Vendor. All such invoices shall be due upon
issuance and shall be paid in full within 30 days of the date of their
issuance together with interest in the event of non-payment within such 30
day period at the rate of 18% per annum, calculated daily from the date of
receipt of the relevant invoice to the date of receipt of payment.
24. WARRANTY
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The Vendor warrants to the Client that:
(a) the Client shall quietly and peacefully posses the Software and/or
materials covered hereunder subject to and in accordance with the
provisions of this Agreement;
(b) the Client's use and possession of such Software and/or materials will
not be interrupted or otherwise disturbed by any person asserting a claim
under or through the Vendor;
(c) the Vendor has the right to licence or sub-licence to the Client on the
terms provided herein all of the GIMS Application Programs provided in this
Agreement;
(d) the GIMS source and object code provided by the Vendor pursuant to this
Agreement shall be virus free when delivered to the Client; and
(e) the GIMS source and object code provided by the Vendor pursuant to the
agreement shall be free of all intentionally programmed devices which, when
activated or if not re-set, would have a detrimental effect on the
performance of the GIMS Application Programs or the Client's computers or
the integrity of the Client's data, including data unrelated to the GIMS
Application Programs.
(f) the GIMS Application Programs will enable the Client to satisfy
applicable Laws and Regulations governing Insurance and the Insurance
Industry, to the extent relevant to the Functionality of the GIMS
Applications Programs. Regulatory requirements that will be covered by
this agreement relate to statutory obligations of the Client as well as
industry mandated requirements, and shall include, but not be limited to,
Federal or State Laws, Insurance bureau filing as mandated by a
recognized legislative body.
25. TAXES
The charges do not include, and the Vendor shall invoice for, and the
Client will pay, as hereinafter stated, all taxes lawfully levied against
or upon the GIMS Application Programs or its use, or arising out of this
Agreement, exclusive, however, of taxes based on the Vendor's income, and
franchise taxes, or taxes on any withholding at the source obligations of
the Vendor which taxes shall be paid by the Vendor or, where required
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by law, by the Client remitting to the appropriate taxing authority on the
Vendor's behalf.
26. PATENT AND COPYRIGHT INDEMNITY
Provided the Client's use of the GIMS Application Programs is in compliance with
the provisions of this Agreement, the Vendor agrees to defend and/or handle at
its own expense any claim or action against the Client, its parent, their
subsidiary and affiliated companies, for actual or alleged infringement of any
patent, copyright or similar property right (including but not limited to
misappropriation of trade secrets) based upon any item of GIMS Application
Programs, Documentation, and/or any other materials furnished hereunder by the
Vendor or the use thereof by the Client. The Vendor shall have the sole right
to conduct the defence of any such claim or action and all negotiations for its
settlement or compromise, unless otherwise mutually agreed to in writing by the
parties hereto.
The Vendor further agrees to indemnify and hold the Client, its parent, their
subsidiary and affiliated companies, harmless from and against any and all
liabilities, losses, damages, costs and expenses (including reasonable
attorneys' fees) associated with any such claim or action incurred by the Client
in accordance with this Section.
In the event any item of GIMS Application Programs and/or any other materials
furnished hereunder is involved in such claim or action and is held to
constitute infringement and the use thereof is permanently enjoined, the Vendor
shall at its own expense, either: (a) obtain for the Client the right to
continue using said GIMS Application Programs and/or any other material; (b)
modify such GIMS Application Programs and/or any other materials as contemplated
hereunder; or (c) replace said GIMS Application Programs and/or any other
materials with equally suitable, non-infringing GIMS Application Programs and/or
any other materials.
27. TERMINATION, MODIFICATION AND PRECEDENCE OF THIS AGREEMENT
(a) The Client shall have the right to terminate this agreement at any time.
At such time the Client must return to the Vendor all copies of the GIMS
Application Programs and Documentation and must
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erase any copies of the Software from the Client's computers. The Client
must also destroy or erase any backup copies of the Software. The Client
will pay the Vendor for any outstanding invoices owed as provided in the
attached Exhibit D. The Vendor will reimburse the Client for any fees paid
by the Client not yet earned by the Vendor.
(b) In the event of any material breach of this Agreement by either party
hereto, the other party may (reserving cumulatively all other remedies and
rights under this Agreement and in law and in equity) terminate this
Agreement in whole or in part by giving thirty (30) days' prior written
notice thereof; provided, however, that this Agreement shall not terminate
at the end of said thirty (30) days' notice period if the party in breach
has cured the breach of which it has been notified prior to the expiration
of said thirty (30) days. Notwithstanding anything in this Agreement to the
contrary, either party hereto shall have the right to immediately terminate
this Agreement, upon notice to the other, in the event of the other's
insolvency; receivership; or voluntary or involuntary bankruptcy; in the
event of an assignment for the benefit of creditors; or in the event any
substantial part of the other's property is or becomes subject to any levy,
seizure, assignment or sale for or by any creditor or governmental agency
without being released or satisfied within thirty (30) days thereafter. If
the Client terminates the Agreement in accordance with this paragraph such
termination will be without the Client's financial liability or penalty of
any kind.
(c) The terms of this Agreement shall apply and take equal precedence with
any and all conditions of exhibits or schedules attached as part of this
Agreement. This Agreement, together with all Appendices, Schedules and
other Attachments hereto, constitutes the entire agreement between the
parties and supersedes all previous agreements, promises, representations,
understandings and negotiations, whether written or oral, between the
parties with respect to the subject matter hereof. In the event of any
inconsistency between the Agreement and any exhibit, attachment or schedule
the exhibit, attachment or schedule shall govern.
(d) All notices to be given by one party to the other herein shall be given
by registered letter, postage prepaid, addressed to the Vendor and Client
as per page one (1) of this agreement or such
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other address as the Vendor and the Client may respectively from time to
time appoint in writing, and any such notice shall be deemed to be given
and received by the addressee three days after the mailing thereof.
(e) The invalidity in whole or in part of any portion of this Agreement
shall not affect the validity of the remaining portion, and the invalid,
illegal or unenforceable provisions shall be replaced by a mutually
acceptable provision, which, being valid, legal and enforceable, comes
closest to the intention of the parties underlying the invalid, illegal or
unenforceable provisions.
28. FORCE MAJEURE
If the performance of either party hereunder is delayed or prevented at any
time due to circumstances beyond the control of such party, including without
limitation those resulting from, labour disputes, fire, floods, riots, civil
disturbances, weather conditions, control exercised by a governmental entity,
unavoidable casualties or acts of God or a public enemy, the nonperformance of
such party shall be excused until such condition no longer exists, save and
except that the non-performing party shall immediately advise the other party
of the condition and of the anticipated duration of any delay and, in the event
such delay extends beyond ten (10) days, the performing party shall be at
liberty to mitigate any damages it may suffer by taking any reasonable means of
mitigation including the employment of its own forces, and the non-performing
party shall do all reasonable things to cooperate.
29. INSURANCE
The Vendor shall acquire and maintain in full force and effect insurance
coverage with carriers authorized to do business in Canada throughout the
term of this Agreement. Coverage is required in the following categories to
the limits shown.
Category of Insurance Limit
A. Worker's Compensation Statutory Compliance
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B. Comprehensive General
Liability $1,000,000.00
(Bodily Injury and
Property Damage)
C. Comprehensive Auto
Liability $1,000,000.00
(Bodily Injury and
Property Damage)
(Owned and Non-Owned)
The Vendor shall provide the Client with proof of insurance by furnishing
the Client with Certificates of Insurance, or in the alternative, the Vendor
may provide a verified copy of the declaration page and/or endorsements of the
relevant policy(ies).
30. NO RECRUITMENT OF EMPLOYEES
During the term of this Agreement and for a period of one year thereafter,
neither party shall employ, or engage, directly or indirectly, any employee or
consultant of the other or any person formerly employed by the other, if such
employee or consultant was in any way involved in connection with this
Agreement or the utilization of the GIMS Application Programs without the
express written consent of the other party.
31. ASSIGNMENT
The Client shall not sell, convey, sub-license, delegate, assign or
otherwise transfer the GIMS Application Programs or Documentation, any
component thereof, any right therein or this Agreement, to any other person,
either voluntarily or involuntarily, directly or indirectly, whether by
operation of law or otherwise without the prior written consent of the Vendor,
such consent not to be unreasonably withheld. Any merger, consolidation or
other reorganization shall be deemed an assignment hereunder. Notwithstanding
the foregoing, the Licence and all of the Client's rights therein may be
assigned in whole but not in part: (a) to any person or entity acquiring
substantially all of the assets and business of the Client or (b) to any person
or entity merging or consolidating with the Client, provided that prior to any
such assignment any such assignee becomes a party to this Agreement and agrees
to be bound hereby to the
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same extent as if such assignee were the Client hereunder and provided
that the GIMS Application Programs and Documentation is only used in
respect of the business and locations for which it was originally
licensed. Any sale, conveyance, sub-license, delegation, assignment of
other transfer in violation of the terms hereof shall be void and of no
force or effect.
Neither party may assign this agreement, or any of its rights and
obligations hereunder, without the prior written consent of the other
party.
32. NON-COMPETITION
During the term of this Agreement and for a period of one year
thereafter, the Client shall not enter into or engage in any business
which directly or indirectly competes with the business carried on by the
Vendor or promote or assist, financially or otherwise, any person, firm,
association, partnership, venture or corporation engaged in any business
which directly or indirectly competes with the business of the Vendor,
except as agreed to in a separate agreement.
33. ARBITRATION
Any controversy or claim arising out of or related to this Agreement,
or in the event of breach of this Agreement may at the option of either
party be referred for settlement by arbitration pursuant to the rules of
Arbitration attached as Exhibit E hereto.
34. INJUNCTIVE RELIEF
The Client acknowledges that because of the confidential and proprietary
nature of the GIMS Application Programs and Documentation neither
termination of this Agreement, arbitration, nor an action at law would be
an adequate remedy for a breach by the Client of this Agreement.
Accordingly the Client agrees and consents that in the event of any such
breach, in addition to all other remedies which the Vendor may have, the
Vendor shall be entitled to relief in equity, including a temporary
restraining order, temporary or preliminary injunction, and permanent,
mandatory or prohibitory injunction to restrain the continuance of any
such breach or to compel compliance with the provisions of this
Agreement.
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35. INDEMNIFICATION
Except as provided for in Section 26, Patent and Copyright Indemnity, the
Client shall indemnify and hold harmless the Vendor, its agents,
employees, directors, officers, shareholders, successors and assigns from
and against any and all liabilities, losses, damages, claims, suits and
expenses, including, without limitation, attorneys' fees, of whatsoever kind
and nature imposed on, incurred by, or asserted against the Vendor, its
agents, employees, directors, officers, shareholders, successors and
assigns relating to or arising out of (1) any action, claim or suit against the
Vendor by a third party relating to or arising out of the possession or use
of the GIMS Application Programs or Documentation by the Client or (ii)
any failure on the part of the Client to perform or comply with the terms of
this Agreement.
36. COOPERATION
The Client shall reasonably cooperate with the Vendor in connection
with the performance by the Vendor hereunder and the Client acknowledges that
such performance depends in part on such cooperation and that the Client's
failure to so cooperate may hinder, impede or excuse the Vendor's performance
hereunder.
37. GOVERNING LAW
This Agreement shall be construed and interpreted solely in accordance
with the laws of the State of Indiana.
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38. HEADINGS
The headings to the Articles of this Agreement are solely for the
convenience of the parties and shall in no way be held to explain,
modify, amplify or aid in the interpretation of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto each acting under due and
proper authority have executed this Agreement as of the day, month and
year written below.
TRITECH FINANCIAL SYMONS INTERNATIONAL
SYSTEMS INC. GROUP INC.
Per: /s/ Cannot read signature Per: /s/ Douglas H. Symons
-------------------------- --------------------------
Title Chairman Title President
------------------------- -------------------------
Date June 12, 95 Date Aug. 30, 1995
------------------------- -------------------------
Affixed with Corporate Seal Affixed with Corporate Seal
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LIST OF EXHIBITS
EXHIBIT A : FUNCTIONAL SPECIFICATIONS
Attachment 1 : Modification Requirements
Attachment 2 : Documentation Listing
EXHIBIT B : PRICING SCHEDULE
EXHIBIT C : COMPUTER HARDWARE AND
OPERATING SYSTEM
EXHIBIT D : IMPLEMENTATION AND PAYMENT
SCHEDULE
EXHIBIT E : RULES OF PROCEDURE OF
ARBITRATION
EXHIBIT F : GUIDELINE FOR OUT OF POCKET
EXPENSES
22
EXHIBIT "A"
FUNCTIONAL SPECIFICATIONS
To be attached to this agreement.
23
ATTACHMENT "1" TO EXHIBIT "A"
MODIFICATION REQUIREMENTS
To be described in the Functional Specification Document and attached to this
agreement.
24
ATTACHMENT "2" TO EXHIBIT "A"
DOCUMENTATION LISTING OF ALL GIMS APPLICATION PROGRAMS
To be provided to the Client and to be attached to this agreement.
25
EXHIBIT "B"
PRICING SCHEDULE
G.I.M.S. Perpetual Licence LICENCE SERVICE
Gross Annual Premium FEES FEES
$ 1 - 5,000,000 $ 75,000
$ 5,000,001 - 15,000,000 $ 100,000
$ 15,000,001 - 20,000,000 $ 125,000
$ 20,000,001 - 25,000,000 $ 150,000
$ 25,000,001 - 35,000,000 $ 175,000
$ 35,000,001 - 50,000,000 $ 200,000
$ 50,000,001 - 75,000,000 $ 250,000
$ 75,000,001 - 100,000,000 $ 300,000
$100,000,001 - 150,000,000 $ 350,000
$150,000,001 - 200,000,000 $ 400,000
$200,000,O01 - 350,000,000 $ 550,000
$350,000,001 - 500,000,000 $ 750,O00
$500,000,001 - 750,000,000 $1,000,000
Initial Licence Fee: $ 250,000
Based on up to $75 Million in GWP
SIG Florida $ 6 Million
Pafco General $ 49 Million
Functional Study Time and Materials
Conversion Study Time and Materials
Point and Shoot Executive Query incl
Laser Printing - First Print Site incl
- - Each additional Print Site $ 5,000
- - Customization as defined in Exhibit A Time and Materials
ACCORD- Integration To be determined
- IVANS Communications To be determined
Conversion Time and Materials
GIMS Customization as defined in Exhibit A Time and Materials
Testing incl
Implementation Time and Materials
Documentation as described in Exhibit A incl
Training - GIMS/ZIM (5 Weeks) incl
- Additional Training @ $600 per day
TOTAL FEES $ 255,000 $ Time and Materials
Note: The Vendor has the right to adjust the Licence fees due from the Client
at the end of each three (3) year term in co-ordination with the LISA
agreement, based on the Client's then current Gross Annual Premium Volume. The
Client's Initial Gross Annual Premium Volume is agreed to be Fifty five (55)
Million dollars.
26
EXHIBIT "C"
COMPUTER HARDWARE and OPERATING SYSTEM
COMPUTER HARDWARE: DATA GENERAL AVION, HP 9000,
IBM RISC 6000, DEC ALPHA
INTEL based Lan OS, or
INTEL based SCO Unix
as determined by the Client
(to be suitably configured)
OPERATING SYSTEM: Unix, MS Workgroups
STERLING Answer Zim
27
EXHIBIT "D"
IMPLEMENTATION and PAYMENT SCHEDULE
1. PROPOSED IMPLEMENTATION SCHEDULE
Client's approval of Functional Specifications: To be determined
Support file construction: To be determined
Software Customization: To be determined
Conversion of Policy, Claims and AP/GL data: To be determined
Installation of the Software on the client hardware: To be determined
The Client tests the modified Software: To be determined
Training for GIMS (Policy, Claims and AP/GL): To be determined
The Client's acceptance testing of Software: To be determined
The Client has the exclusive right to terminate this agreement if the GIMS
system is not installed and live by January 1, 1996, and the Vendor agrees to
refund any license fees paid within 30 days.
2. PAYMENT SCHEDULE
The Client shall pay to the Vendor after invoicing the following amounts for
the licences granted in this Agreement:
(i) One third of the Licence fee at time of signing this agreement.
(ii) One third of the Licence fee upon the client testing and accepting the
GIMS software.
(iii) One third of the Licence fee, three months after the client uses the
software live.
(iv) Invoices for services are due within 30 days of receipt of invoice. All
services on a Time and materials basis will be subject to authorization
by the client.
(v) Out of pocket expenses are subject to Exhibit "F" attached.
28
EXHIBIT "E"
RULES OF PROCEDURE OF ARBITRATION
l. Initiation of Arbitration Proceedings
(a) If any Party to this Agreement wishes to have any matter under this
Agreement arbitrated in accordance with the provisions of this Agreement,
it shall give notice to the other Party hereto specifying particulars of
the matter or matters in dispute and proposing the name of the person it
wishes to be the single arbitrator. Within 15 days thereafter, the other
Party to this Agreement shall give notice to the first Party advising
whether such Party accepts the arbitrator proposed by the first Party. If
such notice is not given within such 15 day period, the other Party shall
be deemed to have accepted the arbitrator proposed by the first Party.
Failing agreement of the Parties on a single arbitrator within such 15 day
period, either Party may apply to a judge of the Ontario Court of Justice,
General Division under the Arbitrations Act (Ontario) for the appointment
of a single arbitrator on two clear days notice to the other Party. The
arbitrator, whether agreed on by the parties or appointed by Court, shall
have the qualifications set out in subparagraph (b) below and is
hereinafter referred to as the "Arbitrator".
(b) The Arbitrator shall be a person who is legally trained and who has
experience in the computer field in Canada and is independent of either
Party. Without limiting the generality of the foregoing, the Arbitrator
shall be arm's length from both Parties and shall not be a member of the
audit or legal firm or firms who advise either Party, not shall the
Arbitrator be a person who is otherwise regularly retained by such Parties.
2. Submission of Written Statements
(a) Within 30 days of the establishment of the Arbitrator, the Party
initiating the arbitration (the "Claimant") shall send the other Party (the
"Respondent") a Statement of Claim setting out in sufficient detail the
facts and any contentions of law on which it relies, and the relief that it
claims.
(b) Within 30 days of the receipt of the Statement of Claim, the Respondent
shall send the Claimant a Statement of Defence stating in sufficient detail
which of the facts and contentions of law in the Statement of Claim it
admits or denies, on what grounds, and on what other fact and contentions
of law he relies.
(c) Within 30 days of receipt of the Statement of Defence,, the Claimant may
send the Respondent a Statement of Reply.
(d) All Statements of Claim, Defence and Reply shall be accompanied by copies
(or, if they are especially voluminous, lists) of all essential documents
on which the party concerned relies and which have not previously been
submitted by any which they any party, and (where practicable) by any
relevant samples.
29
RULES OF PROCEDURE OF ARBITRATION Cont'd
(e) After submission of all the Statements, the Arbitrator will give
directions for the further conduct of the arbitration.
3. Meetings and Hearings
(a) Meetings and hearings of the Arbitrator shall take place in the City of
Toronto, Ontario or in such other place as the Claimant and the
Respondent shall agree upon in writing and such meetings and hearings
shall be conducted in the English language unless otherwise agreed by
such parties and the Arbitrator. Subject to the foregoing, the
Arbitrator may at any time fix the date, time and place of meeting sand
hearings in the arbitration, and will give all the parties adequate
notice of these. Subject to any adjournments which the Arbitrator
allows, the final hearing will be continued on successive working
days until it is concluded.
(b) All meetings and hearings will be in private unless the parties
otherwise agree.
(c) Any Party may be represented at any meetings or hearing by a legal
practitioner.
4. The Decision
(a) The Arbitrator will make its decision in writing and, unless both the
Parties otherwise agree, its reasons will be set out in the decision.
(b) The Arbitrator will send its decision to the Parties as soon as
practicable after the conclusion of the final hearing.
(c) The decision shall be final and binding on the Parties and shall not be
subject to any appeal or review procedure provided that the Arbitrator
has followed the rules provided herein in good faith and has
proceeded in accordance with the principles of natural justice.
5. Jurisdiction and Powers of the Arbitrators.
(a) By submitting to arbitration under the foregoing Rules, the Parties
shall be taken to have conferred on the Arbitrator the following
jurisdiction and powers, to be exercised by it so far as the relevant
law allows, and in its absolute and unfettered discretion, if it
shall judge it to be expedient for the purpose of ensuring the just,
expeditious, economical and final determination of the dispute referred
to it.
(b) The Arbitrator shall have jurisdiction to:
(i) determine any question of law arising in the arbitration;
(ii) determine any question as to- its own jurisdiction;
30
RULES OF PROCEDURE OF ARBITRATION Cont'd
(iii) determine any question of good faith, dishonesty or fraud
arising in the dispute;
(iv) order any party to furnish such further details of the Party's
case, in fact or in law, as it may require;
(v) proceed in the arbitration notwithstanding the failure or
refusal of any Party to comply with these Rules or with its
orders or directions, or to attend any meeting or hearing, but
only after giving that Party written notice that it intends to
do so;
(vi) receive and take into account such written or oral evidence as
it shall determine to be relevant, whether or not strictly
admissible in law;
(vii) hold meetings and hearings, and make its decision (including
the final decision) in Ontario or elsewhere with the concurrence
of the parties thereto; and
(viii) order the Parties to produce to it, and to each other for
inspection, and to supply copies of, any documents or classes of
documents in their possession or power which it determines to be
relevant.
(c) In addition, the Arbitrator shall have such further jurisdiction and
powers as may be allowed to it by the laws of Indiana, the contract
between the parties, the arbitration agreement, the submission or
reference to arbitration, and the laws of any place in which it holds
hearings or in which witnesses attend before it, and of any place in
which it gives any directions or makes any orders or any award.
(d) Notwithstanding the Parties' intention that the Arbitrator be able to
act free of Court proceedings as set forth herein, the Parties consent
to the decision of the Arbitrator being entered in any Court having
jurisdiction for the purposes of enforcement. In addition, any Party
may apply to an appropriate Court for such relief by a Court shall not
be deemed to be in derogation of the Parties' intention that the
dispute be the subject of final and binding arbitration as set forth
herein.
31
EXHIBIT F
GUIDELINES FOR OUT-OF-POCKET EXPENSES
BASIC POLICY
When the Vendor has to incur out of pocket expenses on behalf of the Client,
then the Client shall reimburse for reasonable, actual and necessary
out-of-pocket expenses in connection with the performance of the consulting
Services. Reasonable expenses are those that are not lavish or extravagant.
It is the responsibility of the Client and the Vendor to ensure that these
guidelines are followed. Should a site visit be required, the Vendor will
obtain a written authorization from the Client before any travel plans shall be
made.
OUT-OF-POCKET EXPENSES GUIDELINES
TRAVEL
a) AIR TRANSPORTATION
All air transportation is to be at discounted coach fares or as
approved by the client.
b) TRANSPORTATION TO/FROM AIRPORTS
Hotel courtesy shuttles should be used whenever possible. After that,
airport limousine Services and airport buses should be used. Taxis
should be used as a last choice and shared as appropriate.
c) OTHER GROUND TRANSPORTATION
Use of personal cars shall be reimbursed at the rate of 25 cents per
kilometre. Car rental shall be reimbursed for a compact or mid-size
car. Reimbursement shall be made for tolls and parking.
LODGING
Reimbursement shall be made for standard rooms. No reimbursement
shall be made for deluxe or upgraded rooms or for suites.
MEALS
A daily allowance of $30 should be followed unless agreed to otherwise.