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EXHIBIT 10.10
AGREEMENT FOR SOFTWARE PROGRAMMING SERVICES
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This Agreement for software programming services (the "Agreement") is
entered into effective as of September 6, 1994 (the "Effective Date") by and
between American Home Assurance Company, a New York corporation ("AH") with
principal offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and Syntel, Inc., a
Michigan corporation ("Syntel") with principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. For and in consideration of the mutual
premises and undertakings set forth herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
all parties hereto, AH and Syntel hereby agree as follows:
1. BACKGROUND AH and its Affiliates, are the owners, licensees or
otherwise authorized users of various software systems. "Affiliate" shall mean
any company controlling, controlled by or under common control of a party
hereto. AH, on behalf of itself and its Affiliates, desires to engage Syntel
to provide programming services for these various software systems (the
"Services"). Syntel is willing to contract to provide such Services. The
parties hereto wish to reduce their agreement to writing.
2. ENGAGEMENT AH, on behalf of itself and its Affiliates, hereby
engages Syntel as the contractor to provide the Services as described herein
and Syntel hereby accepts such engagement and agrees to provide such services
pursuant to the terms and conditions set forth herein.
3. TERM This Agreement shall commence upon the Effective Date and
shall remain in full force and effect continuously thereafter until December
31, 1998 (the "Expiration Date"), subject to termination as provided herein.
Except as otherwise expressly provided herein and in the attachments hereto,
any extension of the term hereof must be in writing and mutually agreed to by
both AH and Syntel. In the event either party desires to continue this
Agreement after the Expiration Date, then, at least on hundred eighty (180)
days prior to the Expiration Date, that party shall provide the other party
with a written proposal for continuance. The receiving party shall respond in
writing to the proposal no later than thirty (30) days after receipt of the
proposal whether or not the party agrees to the terms of the proposal. In the
event the parties are unable to agree upon terms of continuance or renewal at
least ninety (90) days prior to the Expiration Date, then this Agreement shall
terminate pursuant to its own terms, unless otherwise agreed to in writing by
both parties.
4. DUTIES OF AH
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4.01 AH shall assign on of its individual employees (the "AH
Engagement Manager") as AH's primary point of contact with Syntel who will be
responsible for assuring that AH meets its obligations under this Agreement and
who will have the authority to manage the day to day operations and to grant
consents hereunder, but no power to amend this Agreement.
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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4.02 AH shall be responsible for its own equipment and the equipment
located at the mainframe complex located at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (the "AH Data Center"). Syntel shall have no responsibility for any
equipment located in the AH Data Center or any other AH facility. AH agrees *
to provide and maintain back-up files of its data in accordance with the
standards for the facilities of AH and its Affiliates.
4.03 On every April 1st and October 1st, during the term of this
Agreement, AH shall provide to Syntel, a good faith reasonable projection of
Personnel Resource Levels defined in terms of Man Years, as hereinafter defined
("Projection") of the Services to be performed for the following periods: each
October Projection shall encompass the period from the following January 1,
through June 30, and each April Projection shall encompass the period from the
following July 1, through December 31. Services required by AH shall not
exceed the Projection by more than 20% without the written consent of Syntel,
provided however that Syntel may in its sole discretion offer AH different or
additional terms to provide the additional services which exceed the Projection
by more than 20%, and if such different or additional terms are not acceptable
to AH, the additional services do not have to be performed by Syntel. Approval
by AH of such different or additional terms must be in writing.
5. DUTIES OF SYNTEL
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5.01 Syntel will assign an individual (the "Syntel Engagement
Manager") who will serve as Syntel's primary point of contact with AH and who
will be responsible for assuring that Syntel meets its obligations under this
Agreement and who will have the authority to manage the day to day operations
but no power to amend this Agreement. AH reserves the right, for any reason,
to require Syntel to change the Syntel Engagement Manager, or any other
personnel on its account. Syntel agrees that, except with the prior written
consent of AH, Syntel shall not replace the Syntel Engagement Manager for
reasons other than death, disability, failure to perform in the opinion of AH,
request by AH, family considerations, promotion to regional or national
management responsibilities, or resignation or termination from employment by
Syntel.
5.02 Syntel agrees that all Services provided hereunder, will be done
at locations which are identified in writing to AH and which must be acceptable
to AH and Syntel (collectively the "Syntel Service Center"). Syntel agrees
that it will not relocate the Syntel Service Center, nor establish a satellite
facility, for providing Services hereunder, without first obtaining the written
consent of AH, which consent shall not be unreasonably withheld. AH and Syntel
agree that initially the Services will be performed from a Syntel facility in
India and a Syntel facility in North Carolina.
5.03 Syntel will adhere to all material AH practices and standards
identified to them and further agrees to use its best efforts to adhere to all
practices and standards concerning access to the mainframes located in the AH
Data Center as outlined in the
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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American International Group Data Center, Inc. Manual, as amended from time to
time, provided however, Syntel shall be responsible for only those changes to
practices and standards for which it receives prior notice sufficient for it to
act upon. A copy of the manual which is in effect will be available at all
times for Syntel to access on the AH mainframe computer under TSO under data
set AIGDC. Prod. Stands.
5.04 Syntel shall be solely responsible for establishing a connection
to the AH Data Center including without limitation all telecommunications
equipment, all telephone and other telecommunications lines and all expenses
associated with transmission of data from Syntel's locations to the AH Data
Center or other AH facilities.
5.05 Prior to * , Syntel, at the Syntel Service Center * will
install * Both of these systems may be a non-customized, off the shelf
version of current software, acceptable to AH, such acceptance not to be
unreasonably withheld. AH shall have complete access to these systems or the
output of these systems as ▇▇ ▇▇▇▇▇ necessary.
5.06 Syntel shall be responsible * for developing a disaster
recovery plan, acceptable to AH addressing, among other matters, the
telecommunication connection between the Syntel Service Center and the AH Data
Center. Syntel will provide for and maintain backup files of the data and
programs at its facilities.
5.07 *
5.08 Syntel agrees to accept assignment of leases for certain computer
hardware and the licenses for software that are currently installed on them
which (i) have been utilized by AH or an Affiliate, (ii) AH shall identify
reasonably promptly after the Effective Date and (iii) are reasonably
acceptable to Syntel and required by Syntel to provide the Services. AH shall
take all necessary action to transfer to Syntel all rights to the software that
resides in, or is necessary for the operation of, the computer hardware being
transferred to Syntel. * All such computer hardware is "as is" without
warranty of any kind. If prior to the Expiration Date AH terminates this
Agreement, AH shall accept reassignment from Syntel of any remaining leases and
licenses of computer hardware and software provided hereunder by AH.
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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6. PAYMENT
6.01. In consideration of the Services to be provided by Syntel, AH
agrees that it will provide Syntel with sufficient requests for Services to
meet the following project Guaranteed Personnel Resource Levels or AH will pay
Syntel * as indicated in the table below *
*
All Services required by AH in November, 1994 and December, 1994 will
be based * and will be paid on November 15, 1994 for November 1994 and
December 15, 1994 for December 1994 based on * provided by AH in *
by October 1, 1994 on the amount of Services to be required. If the actual
charges are more or less than the payments made, such adjustment will be made
to the charges are more or less than the payments made, such adjustment will be
made to the February 15th payment required hereunder. Any Services required by
AH during the term of this Agreement which are in excess of the Guaranteed
Personnel Resource Level will be provided by Syntel at the rate of * ,
subject to the provision of the last sentence
of Section 4.03.
6.02 AH agrees to reimburse Syntel at its cost for *
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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*
6.03 As set forth in Section 4.03, AH shall provide a * to Syntel
every April 1st and October 1st during the term of this Agreement. *
Beginning in 1995 and continuing in each subsequent year on April 10,
July 10, October 10 and January 10, Syntel will provide a detailed summary of *
6.04 AH shall reimburse Syntel the amount * Invoices are subject to
audit by AH. All other out of pocket expenses are to be paid by Syntel.
6.05 Computer charges for use of the * at * will be paid for by *
6.06 *
6.07 All amounts payable hereunder are payable in legal tender of the
United States of America. Acceptance by * of any payment in an amount
less than the amount then due hereunder shall be deemed an acceptance on
account only, and the
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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failure to pay the entire amount then due shall be and continue to be a
default. *
6.08 Notwithstanding any provision of this Agreement to the contrary,
it is the intent of AH and Syntel hereof that * shall never be entitled to
receive, collect or apply, as interest on principal of the indebtedness due
hereunder, any amount in excess of the maximum rate of interest permitted to be
charged by applicable law.
7. PROJECT MANAGEMENT
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7.01 Syntel agrees to perform the Services as set forth in Attachment
A as may be amended by agreement of AH and Syntel.
8. CONFIDENTIALITY AND OWNERSHIP OF WORK PRODUCT
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8.01 AH and Syntel acknowledge to each other that they will be
disclosing to each other valuable and confidential information including but
not limited to data processing techniques, software programs, business affairs,
methods of operation and access codes, financial information (collectively
"Confidential Information") which contain proprietary information and trade
secrets of the disclosing party. Accordingly, each party hereto agrees that it
will only use the Confidential Information in furtherance of this Agreement and
will maintain the complete confidentiality of the Confidential Information and
prevent its unauthorized disclosure to any third party, provided such
information may be disclosed to Affiliates, agents, advisors and third party
consultants so long as such information remains subject to the terms of this
provision. Confidential Information shall not include: (i) any such
information that has been released to the public by a party hereto, its
Affiliates or any third party other than through a breach of this Agreement;
(ii) any information already possessed by the receiving party; (iii) any
information received from a third party without an obligation of
confidentiality; and (iv) any information independently developed. All
tangible forms of Confidential Information,including but not limited to
diskettes, tapes or written material delivered to Syntel by AH shall be and
remain the property of AH. If either party receives a subpoena or other legal
notice requiring disclosure of Confidential Information of the other party, it
will promptly notify the other party and will take reasonable steps to try to
retain confidential treatment. Any resulting disclosure shall not be a breach
hereof. Notwithstanding anything contained herein to the contrary, under no
circumstances shall AH disclose any of Syntel's financial or related
information which AH obtains through the financial reviews of Syntel, except as
compelled by law and then only after giving prior notice to Syntel. Upon the
termination of this Agreement for any reason, with respect to any AH software,
data, information or materials ("AH Data"), on request by AH, or on such
earlier date that the same shall be no longer required by Syntel in order to
render the Services, all AH Data in the custody of Syntel and permitted
subcontractors will be returned to AH or,if AH so elects, destroyed by Syntel.
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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8.02 All intellectual property rights including without limitation,
software program code, logic diagrams, flow charts, procedural diagrams, maps
and documentation related to all the foregoing developed hereunder by Syntel
(collectively, "Work Product") shall be the sole and exclusive property of AH,
who shall own any rights based upon trade secret law, copyrights and/or patents
on those materials. To the extent that any Work Product, under applicable law
may not be considered works made for hire, Syntel (i) hereby irrevocably
assigns and transfers to AH the ownership of all rights, title and interests in
such Work Product (including copyrights, whether published or unpublished and
patents and all other intellectual property rights thereto); (ii) waives any
rights or claims to such right or claims to moral rights; and (iii) will
execute * all documents which AH may require to secure or confirm AH's
rights, titles and interests hereunder. Syntel shall have all personnel that
provide Services hereunder execute a noncompete nondisclosure agreement
reasonably acceptable to AH that will among other things, require such
personnel to agree not to claim any rights in AH's intellectual property. Upon
termination of this Agreement for any reason, any Work Product will be
delivered to AH with Syntel retaining no copies of Work Product.
8.03 All design tools, design techniques, computer programming
techniques and know how, relating to information systems, developed by Syntel
as a result of this engagement shall be the sole and exclusive property of
Syntel, who shall own any rights based upon trade secret law, copyrights and/or
patents on those materials. To the extent necessary or required by law or
Syntel, AH (i) hereby assigns and transfers to Syntel the ownership of all
rights, title and interests in such works and material (including copyrights,
whether published or unpublished and patents thereto); (ii) waives any rights
or claims to such right or claims to moral rights; and (iii) will execute *
all documents which Syntel may require to secure or confirm Syntel's rights,
titles and interests hereunder. Syntel hereby irrevocably grants AH, in
perpetuity, a non assignable license for its own or its Affiliates use of the
above referenced property of Syntel.
9. REPRESENTATIONS, COVENANTS AND WARRANTIES OF SYNTEL
Syntel represents, covenants and warrants that:
9.01 It will use its best efforts so that all Services provided
hereunder will be performed in a workmanlike manner by competent staff,
appropriately experienced to do the tasks assigned to them. Syntel's
obligation under this warranty shall be to manage and direct the persons
providing Services in a proper and workmanlike manner. Syntel makes no
representation or warranty regarding whether the source code it develops is
error free.
9.02 Any employees or any subcontractors it assigns to perform
Services hereunder will be qualified individuals with suitable training,
experience and skill to perform the duties they are assigned.
9.03 It will perform its responsibilities under this Agreement in a
manner that does not knowingly infringe, or constitute an infringement or
misappropriation of, any patent,
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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trade secret, copyright or other proprietary right of any third party.
9.04 It is the owner of or otherwise has the rights to use in
performance of its obligations hereunder all systems and methodologies utilized
in connection with the Services.
9.05 It will materially comply with all AH standards, rules,
procedures and policies relating to or affecting the Services and the
performance standards agreed to by the parties, including the Service Levels
and Performance Standards, in the Attachments contained hereto.
9.06 All software maintained and developed by Syntel will conform to
AH's requirements and/or applicable specifications and that the Services
provided hereunder shall meet or exceed the standards set forth in this
Agreement and the Attachments hereto for such Services and that it shall use
its best efforts in providing the Services.
9.07 It will comply with all applicable United States federal, state
and local laws and all international laws relating to the provision of the
Services and the AH operations affected by this Agreement.
9.08 It will not engage in any unlawful discrimination as to race,
creed, color, national origin, sex, age, disability, marital status,
citizenship status, sexual orientation or affectional preference in any
employment decisions relating to this Agreement and that it is an equal
opportunity employer and will comply with all federal and state employment laws
and regulations, including: Executive Order 11246; The Vietnam ERA Veteran's
Readjustment Act of 1974; Section 503 of the Rehabilitation Act of 1973.
9.09 As of the time of delivery to AH it will have successfully tested
all software to be provided to AH to determine if the software contains threats
known as software viruses, time bombs, logic bombs, trojan horses, trap doors,
or other malicious computer instructions, intentional devices or techniques
that can or were designed to threaten, infect, attack, assault, vandalize,
defraud, disrupt, damage, disable, or shut down a computer system or any
component of such computer system, including its security or user data
(hereinafter "Disabling Devices"). Syntel further warrants that as of at the
time of delivery to AH the Syntel developed software, as delivered, to the best
of Syntel's knowledge, is free and clear of and contains no Disabling Devices.
9.10 It will maintain books and records relating to time records,
billing statements related to the Services hereunder for four (4) calendar
years following the end of the calendar year in which Services were provided.
9.11 It will maintain its computer hardware, equipment, software and
facilities utilized for the performance of the Services with appropriate
providers of such services at all times during the term of this Agreement.
9.12 It is a duly organized corporation authorized to enter into this
Agreement and
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entering into this Agreement will not violate any other agreement to which it
is a party.
9.13 THE REPRESENTATIONS, COVENANTS AND WARRANTIES SET FORTH IN THIS
AGREEMENT CONSTITUTE THE ONLY REPRESENTATIONS, COVENANTS, WARRANTIES OF SYNTEL
WITH RESPECT TO THIS AGREEMENT, AND SUCH REPRESENTATIONS, COVENANTS AND
WARRANTIES ARE IN LIEU OF ALL OTHER REPRESENTATIONS, COVENANTS AND WARRANTIES,
WRITTEN OR ORAL, STATUTORY, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION
THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, OR THE RESULTS TO BE DERIVED FROM THE USE OF ANY INFORMATION
TECHNOLOGY SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS
AGREEMENT. THE UNIFORM COMMERCIAL CODE DOES NOT APPLY TO THIS AGREEMENT NOR
GOVERN THE RELATIONSHIP OF THE PARTIES HERETO.
10. TAXES AND INSURANCE
10.01 * agrees to pay all local, state and federal taxes that are now
or may become applicable to the payments hereunder, including but not limited
to sales, use and excise taxes but these do not include taxes based on *
10.02 Syntel shall maintain throughout the term of this Agreement at
least the following insurance coverages in a policy or policies of insurance,
primary and excess, including so-called Umbrella or Catastrophe form, which may
also include comprehensive Automobile insurance and Employer's Liability
insurance:
(1) Worker's Compensation Insurance for all states in which work
is to be performed hereunder with limits in accord with the
statutory requirements of the respective states, and Coverage B
- Employer's Liability Coverage including occupational disease
with a limit of not less than $1,000,000 per event.
(2) General Liability Insurance covering Syntel's operations,
with minimum limit of $3 million per occurrence, with AH
named as an additional insured and including the following
coverages: (i) Commercial General Liability; (ii) Contractual
Liability; (iii) Independent Contractor (if any part of the work
is subcontracted); (iv) Broad Form Property Damage; (v) Personal
Injury; and (vi) Products/ Completed Operations.
(3) Automobile insurance including coverage for non-owned and
hired vehicle in the amount of $1,000,000 per occurrence for
bodily injury and property damage.
(4) Errors and Omissions Insurance in the amount of
$5,000,000.00.
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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(5) Crime/Theft, Computer Crime, Fidelity in an amount not less
than $1,000,000.00.
(6) Syntel shall provide that AH is an additional insured under
policies required herein at least in respect of work being
performed hereunder. *
(7) Unless waived by AH, Certificates of Insurance listing
required coverages and acceptable to AH shall be provided
to AH prior to Syntel's commencement of duties pursuant to this
Agreement and shall require each carrier to give AH no less than
30 days notice of any prospective cancellation or restriction of
coverage or limits.
11. AUDIT RIGHTS
11.01 Syntel will provide AH, its auditors (including internal audit
staff), and other representatives as AH may from time to time designate in
writing, and AH's regulators and designated agents of such regulators with any
reasonably required access to the Syntel Service Center during normal business
hours reasonable advance notice and at the sole expense of AH. Such access
shall be for the purpose of (a) performing audits and inspections and (b) to
verify the integrity of data including, without limitation, audits (i) of
maintenance practices and procedures, (ii) of general controls and security
practices and procedures, (iii) of disaster recovery procedures, (iv) project
management systems and project time reporting systems, and (v) any other audit
necessary or appropriate to enable AH to meet applicable regulatory
requirements.
11.02 AH shall have the right * to retain an independent
certified public accountant to conduct a review of the records of Syntel
related to this Agreement provided however, such review shall be conducted
during normal business hours of Syntel, upon reasonable advance notice and
under such conditions so as not to materially interfere with the operation of
Syntel's operations. This right to review with respect to any period shall
terminate upon the termination of this Agreement provided however that AH can
review Syntel for up to * after termination of the Agreement concerning
events occurring prior tot he termination. Neither AH nor its auditors shall
disclose any information that it obtains by or through these reviews provided
in this Section 11.
12. INDEMNIFICATION
12.01 Subject to the limitations contained in Section 14, Syntel and AH
agree to indemnify and hold harmless, to the full extent permitted by law, the
other party and their
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* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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respective Affiliates, officers, directors, shareholders, employees and agents,
against all losses, claims, damages, liabilities and expenses (including
without limitation, reasonable legal fees and expenses) that either relate to
damages to personal property, personal injury or, knowingly infringing on a
third party's intellectual property rights or are caused by, arising from or
relating to actions taken or omitted to be taken by the indemnifying party or
its respective Affiliates, officers, directors, shareholders, employees and
agents pursuant to, in violation of or as a result of this Agreement, or in
connection with the transactions contemplated hereby or otherwise including
without limitaiton breaches of representations, warranties and covenants. In
the event of an unintentional infringing on a third party's intellectual
property rights, AH and Syntel agree to cooperate in the defense of such claim
and if the parties disagree over the defense, any proposed settlement, the
degree of fault that should be assigned to each party or otherwise fail to
agree, either party may demand mediation under the laws of New York, to be
resolved in New York City.
12.02 In the event that any action or proceeding is brought, or any
claim or other liability is asserted ("Claim"), against any party entitled to
indemnity hereunder in respect of which indemnity may be sought hereunder
("Indemnitee"), such Indemnitee shall promptly give notice of such Claim to the
Indemnifying party ("Indemnitor"), but any failure to so notify the Indemnitor
shall not relieve the Indemnitor from any liability that it may have to the
Indemnitee hereunder. The Indemnitor shall be entitled to participate in the
defense of such Claim and to assume control of such defense with counsel
reasonably satisfactory to such Indemnitee provided, however, that:
a. The Indemnitee shall be entitled to participate at its own
expense in the defense of such Claim and to employ counsel at its
own expense to participate in the defense of such Claim;
b. The Indemnitor shall obtain the prior written approval of the
Indemnitee before entering into any settlement of such Claim or
ceasing to defend against such Claim if, pursuant to or as a
result of such settlement or cessation, injunctive or other
equitable relief would be imposed against the Indemnitee;
c. The Indemnitor shall not consent to the entry of any judgment
or enter into any settlement that does not include as an
unconditional term thereof the giving by each plaintiff or
claimant to the Indemnitee of a release from all liability in
respect of such Claim; and
d. The Indemnitor shall not be entitled to control (but shall be
entitled to participate at its own expense in the defense of), and
the Indemnitee shall be entitled to have sole control over, the
defense or settlement of any Claim to the extent such Claim seeks
an order, injunction or other equitable relief, which if
successful, could materially interfere with the business,
operations, assets, conditions (financial or otherwise) or
prospects of the Indemnitee.
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12.03 In the event that the Indemnitor shall be obligated to indemnify
the Indemnitee hereunder, the Indemnitor shall, upon payment of such indemnity
in full, be subrogated to all rights of the Indemnitee with respect to the
Claims to which such indemnification relates.
12.04 The indemnities set forth in Section 12 hereof will not apply (i)
to the extent that the party claiming indemnification was responsible for
giving rise to the matter upon which the claim for indemnification is based,
and (ii) unless the party claiming indemnification reasonably promptly notifies
the other of any matters in respect of which the indemnity may apply and of
which the notifying party has knowledge and gives the other full opportunity to
control the response thereto and the defense thereof, including without
limitation any agreement relating to the settlement thereof; provided, however,
that the indemnitee's failure to provide such reasonably prompt notice will
relieve the indemnitor of its indemnity obligation hereunder only to the extent
that the rights of the indemnitor are prejudiced by such failure. In addition
to the foregoing, each party will have a right of contribution against the
other party with respect to any claim by a third party to the extent that the
party against which such right of contribution is asserted contributed to the
events, acts or omissions that gave rise to such third party claim.
13. TERMINATION
13.01 In the event that Syntel (i) files a voluntary petition in
bankruptcy or petitions for reorganization or arrangement under the bankruptcy
laws or if a petition in bankruptcy is filed against Syntel and remains
undismissed for a period of thirty (30) days, or if a receiver or trustee is
appointed for all or any material part of the property or assets of Syntel that
would adversely affect the performance of Syntel hereunder or (ii) defaults in
the performance of any of its material duties or obligations hereunder and does
not substantially cure such default within thirty (30) days after being given
written notice specifying the default and the period to cure, or, with respect
to those defaults which cannot reasonably be cured within thirty (30) days, if
Syntel fails to proceed promptly after being given such notice to commence
during the default and thereafter to proceed with all due diligence to
substantially cure the same, then AH may, by giving written notice thereof to
Syntel, terminate, in whole or in part, the Agreement as of a date specified in
such notice of termination.
13.02 All written notices from AH concerning default or termination
must be from either an officer of AH that is at least a vice president or from
AH's legal counsel and must specify that a breach has occurred, must specify
the nature and extent of such breach, and if appropriate must state the date of
termination. AH shall have the duty to mitigate all damages and to incur only
reasonable costs to remedy such breach.
13.03 Syntel may terminate this Agreement if (i) AH fails to cure any
nonmonetary material default within thirty (30) days after written notice
specifying the default or (ii) AH fails to cure any monetary default within ten
(10) days following the receipt of written
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notice of such default from Syntel, specifying the nature and extent of any
such breach, provided that if AH reasonably in good faith disputes an amount
claimed by Syntel * as provided in Section 6.03, and withholds payments of the
disputed amount, such withholding will not be deemed a breach of this Agreement
and provided further, that on or prior to the twenty-fifth (25th) day of the
month in which such * is received by AH, AH shall provide Syntel with a
detailed, written delineation of the amounts of and AH's objections to each
item in dispute, if any, and the parties shall meet within forty-eight (48)
hours of the receipt by Syntel of such delineation to attempt in good faith to
resolve each such disputed item, or (iii) in the event AH files a voluntary
petition in bankruptcy or petitions for reorganization or arrangement under the
bankruptcy laws, or if a petition in bankruptcy is filed against AH and remains
undismissed for a period of thirty (30) days, or (iv) if a receiver or trustee
is appointed for all or any material part of the property and assets of AH that
would adversely affect the performance hereunder. In the event of termination
pursuant to subsection (i) or (ii) above, the termination shall not take effect
until 120 days from the date of notice, provided however, AH must prepay Syntel
for the Services to be provided for the 120 day period.
13.04 Syntel agrees that it will meet or exceed the Service Levels set
forth in Attachment B.
13.05 If a majority interest in the stock of Syntel (or any successor
to Syntel's rights and obligations under this Agreement) or a substantial part
of its business is sold to, or Syntel or such successor merges or consolidates
with, any competitor of American International Group, Inc. and its Affiliates,
then, for a period of six months following the consummation of such sale. AH
may terminate this Agreement by giving Syntel at least thirty days prior
written notice designating the date upon which such termination will be
effective. Syntel will notify AH immediately upon the occurrence of any
transaction described in this Section 13.05.
13.06 At any time during the term of this Agreement, AH may elect to
terminate this Agreement, for its convenience and for no other reason upon six
(6) months prior written notice. In the event of such termination for
convenience, AH will pay Syntel the following termination amounts (the "Early
Termination Amounts") based on the date such notice of termination is received:
If during calendar year 1994 or calender year 1995: * If during
calendar year 1996: * If during calendar year 1997:* If during calendar year
1998: * Payment by AH of the Early Termination Amounts shall by Syntel's sole
and exclusive remedy for any early termination of this Agreement by AH for
convenience in accordance with this Section 13.06 but Syntel shall also be
entitled to any other amounts due from AH for Services provided hereunder and
both parties will be entitled to any amounts due pursuant to Section 12.
13.07 In the event this Agreement expires or is terminated, and upon
timely receipt by Syntel in full of all sums owed by AH to Syntel which are not
in reasonable dispute, Syntel agrees to make its best efforts to ensure an
orderly transition of its responsibilities hereunder and to provide to AH any
and all termination assistance requested by AH to
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requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
14
allow its computer systems to continue without interruption and to facilitate
the orderly transfer to AH or its designee. Upon expiration or notice of
termination AH and Syntel shall attempt to agree on the budget for the
transference of Services provided during the termination period, however in the
event no agreement can be reached then the amount to be paid by AH to Syntel for
Syntel's services during the transition period shall be equal to * AH can
verify that such * Any amount due from AH shall be paid within thirty (30) days
following cessation of services by Syntel. AH's obligation to pay Syntel all
amounts due hereunder shall survive the termination of this Agreement. The
transition period shall in no event exceed *
13.08 AH may terminate this Agreement immediately if damages for
breach of this Agreement paid or payable to AH by or on behalf of Syntel exceed
*
14. LIMITATION OF LIABILITY
-----------------------
14.01 In no event shall either party be liable to anyone for any
consequential, special or incidental damages in connection with this Agreement.
This limitation shall apply whether or not the likelihood of such losses or
damages was known to the party or reasonably foreseeable by the party.
14.02 AH agrees to limit any and all liability or claim against Syntel,
for losses, claims, damages, liabilities and expenses (Including without
limitation reasonable legal fees and expenses) arising from or related to this
Agreement or the Services provided hereunder to a cumulative sum not to exceed
* Any and all insurance proceeds shall apply toward this
limitation so that Syntel shall only be liable for the difference between the
insurance policy proceeds and the * liability limitation.
14.03 Except for (i) claims for non payment for Services provided and
Early Termination Amounts, Syntel agrees to limit any and all liability or
claim against AH and its Affiliates for losses, claims, damages, liabilities
and expenses (including without limitation reasonable legal fees and expenses)
arising from or related to this Agreement or the Services provided hereunder to
a cumulative sum not to exceed * . Any and all insurance proceeds
shall apply toward this limitation so that except for claims for non payment
for Services provided and Early Termination Amounts, AH shall only be liable
for the difference between the insurance policy proceeds and the *
liability limitation.
15. GENERAL
-------
15.01 AH and Syntel warrant to each other that while this Agreement is
in effect, and for a period of 24 months after termination or expiration of
this Agreement,
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15
neither AH, Syntel nor their Affiliates will directly or indirectly through one
or more intermediaries, induce any employee of the other to terminate his or
her employment, without prior written consent of the other, offer employment
to, or otherwise obtain the Services of, any employee of the other, or to any
former employee during the * period immediately following such employee's
termination.
15.02 Any notices to be given hereunder by either party to the other
shall be in writing, by personal delivery with signed receipt, or by mail,
registered or certified, postage prepaid with return receipt requested or by
telecopy with a copy mailed by registered or certified mail, postage prepaid
with return receipt requested. Notices shall be addressed to either party at
the address or telecopy number set forth below or at such address or telecopy
number as either party may direct by written notice to the other party in
accordance with this Section. Mailed notices shall be deemed communicated as
of three (3) days after mailing. Notices delivered personally shall be deemed
communicated as of actual receipt. Notices delivered via telecopy shall be
deemed communicated upon receipt of the telecopy confirmation indicating a good
transmission received by the other party. All notices to AH shall be
addressed to the attention of ▇▇▇▇▇▇▇ ▇▇▇ or his successor at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ with a copy to General Counsel, American International
Group, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. All notices to Syntel
shall be addressed to the attention of ▇▇▇▇▇▇ ▇▇▇▇▇, President, Syntel, Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Vice President of Operations, Syntel, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
15.03 AH and Syntel covenant to each other not to disclose to any
third party the terms and conditions of this Agreement and any related
Attachments hereto except as required by law, to their attorneys, accountants,
their creditors or potential creditors in confidence, securities disclosure
statements, to regulatory authorities, insurance companies and their agents,
underwriters and brokers or as expressly agreed to by the other party.
15.04 This Agreement and all Attachments are hereby made part hereof
and: (a) constitute the entire agreement between parties concerning the subject
matter hereof and supersede any and all prior discussions, representations,
negotiations, correspondence, writings and other agreement and together state
the entire understanding and agreement between AH and Syntel with respect to
the subject matter hereof; (b) may be amended or modified only in a writing
signed by the signatories hereto or their designated representatives; (c)
shall be construed, performed and enforced in all respects in accordance with
the laws of the State of New York, except for its conflicts of law provisions;
and (d) shall in no way affect, nor be affected by, any other agreement,
arrangement or engagement between the parties hereto.
15.05 Neither party hereto shall be deemed to have waived any rights
or remedies accruing to it hereunder unless such waiver is in writing and
signed by such party. No delay or omission by either party hereto in exercising
any right shall operate as a waiver of said right on any future occasion.
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15.06 The descriptive headings of this Agreement are intended for
reference only and shall not effect the construction or interpretation of this
Agreement. Wherever the singular of any term is used herein it shall be deemed
to include the plural wherever the plural thereof may be applicable.
15.07 Neither party shall be liable to the other party for loss or
damage or deemed to be in breach of this Agreement, if its failure to perform
its duties and obligations hereunder results from either: (i) acts God, civil
unrest, domestic labor strikes; (ii) compliance with any law, ruling, order,
regulation, requirement, or instruction of any federal, state or municipal
government of any department or agency thereof; (iii) transportation shortages,
merchandise, supplies, domestic labor, material, line connections or energy, or
the voluntary forgoing of the right to acquire the use any of the foregoing in
order to accommodate or comply with the orders, requests, regulations,
recommendations, or instructions of any federal, state, or municipal government
or any department or agency thereof; or (iv) acts or omissions of a similar
nature, event or cause. In the event that either party is excused from
performance pursuant to this paragraph as a result of such force majeure, then
that party shall take all reasonable actions to resume or provide alternative
performance of its obligations as soon as feasible. Syntel's obligations
pursuant to this paragraph shall be to promptly, diligently and continuously
use its best efforts to provide the Services and otherwise perform its
obligations under this Agreement, * For the Syntel Service Center, Syntel shall
at all times maintain an adequate and tested disaster recovery plan and have
adequate backup facilities. In the event of a force majeure or other
interruption or such Syntel facilities, Syntel shall immediately put into
operation its disaster recovery plan and migrate its operations to the backup
or alternative facilities until the existing facilities have been repaired.
15.08 Neither party shall assign its duties under this Agreement
without the prior written consent of the other provided however that AH and
Syntel shall have the right to assign this Agreement to an Affiliate.
15.09 This Agreement may be executed in any number of counterparts with
the same effect as if all parties hereto had signed the same document. All
counterparts shall be construed together and shall constitute one agreement,
but in making proof of this Agreement it shall not be necessary to produce or
account for more than one such counterpart.
15.10 If any provision of this Agreement or the Attachments hereto or
the application thereof to any party or circumstances shall, to any extent, now
or hereafter be or become invalid or unenforceable, the remainder of this
Agreement shall not be affected there by and every other provision of this
Agreement shall be valid and enforceable, to the fullest extent permitted by
law.
15.11 Except as otherwise expressly provided in this Agreement, Syntel,
in furnishing the Services to AH hereunder, is acting only as an independent
contractor. Syntel shall be solely responsible for the payment of compensation
of Syntel employees
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17
assigned to perform Services hereunder such personnel are not entitled to the
provisions of any AH employee benefit. AH shall not be responsible for payment
of worker's compensation, disability benefits and unemployment insurance or for
withholding and paying employment taxed for any Syntel employees performing
Services hereunder. *
15.12 Syntel may not, except with the express written consent of AH in
each instance, use the name of AH or any AH Affiliate in advertising, publicity
or similar materials, such consent not to be unreasonably withheld.
15.13 Each party will cooperate with the other by, among other things,
making available, as reasonably requested by the other, management decisions,
information, approvals, and acceptances in order that each party may properly
accomplish its obligations and responsibilities hereunder. Where agreement,
approval, acceptance, consent or similar action by either party hereto is
required by any provision of this Agreement, such action shall not be
unreasonably delayed or withheld.
15.14 The parties acknowledge that certain Software and technical data
to be provide under this Agreement and certain transactions under this
Agreement may be subject to export controls under the laws and regulations of
the United States and other countries. No party shall export or re-export any
such items or any direct product thereof or undertake any transaction in
violation of any laws or regulations.
15.15 If any legal action or other proceeding is brought pursuant to
this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it may be entitled.
15.16 Not withstanding any provisions of this Agreement to the
contrary and without limiting the survivability of any other provision of this
Agreement that, by its terms or operation of law, survives the expiration or
earlier termination of the term of this Agreement, the provisions regarding
confidentiality, proprietary rights, indemnifications, and nonemployment and
this Section 15.16 shall survive the expiration or earlier termination of this
Agreement.
15.17 All representations and warranties made herein shall survive the
execution and delivery of this Agreement and any termination of this Agreement.
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15.18 The parties agree that this Agreement is for the benefit of the
parties hereto and Affiliates of AH and is not intended to confer any rights or
benefits on any other third party, including any employee, vendor, or customer
of either party, and that other than Affiliates of AH, there are no third party
beneficiaries to this Agreement or any part or specific provision of this
Agreement.
15.19 Either party may give the other party written notice of any
dispute not resolved in the normal course of business as contemplated by this
Agreement. Such notice shall constitute a request for senior management review
pursuant to this Section 15.19. As used herein, senior management means the
person to whom the Engagement Manager of Syntel or AH reports. Senior
management review shall commence within seven (7) days of receipt of notice at
a mutually acceptable time and place and continue thereafter as often as
reasonably necessary. If the matter has not been resolved by mutual agreement
within fifteen (15) days of the referring party's notice, the parties can take
any other actions allowed under this Agreement.
THE PARTIES CERTIFY BY THEIR UNDERSIGNED AUTHORIZED OFFICERS THAT THEY HAVE
READ THIS AGREEMENT, INCLUDING ALL ATTACHMENTS HERETO, AND AGREE TO BE BOUND
BY THEIR TERMS AND CONDITIONS.
Syntel, Inc.: American Home Assurance Company
/s/ ▇▇▇▇▇▇▇ ▇▇▇
By:____________________________
▇▇▇▇▇▇▇ ▇▇▇, Senior Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By:_______________________ By:____________________________
▇▇▇▇▇▇ ▇▇▇▇▇, President ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Secretary
19
ATTACHMENT A
PROGRAMMING SERVICES
1. Programming Services shall mean (1) preparation of computer programs and
associated documentation that meet the predefined specifications of AH (2) the
correction of Production Problems as designated from time to time by AH.
2. Specifications mean written descriptions of inputs, outputs, interim
processes, testing, data definitions to be used in or to be the result of the
programming.
3. Production Problems are defined as critical errors in production computer
programs that prohibit AH from completing regularly scheduled computer
services. These critical errors prevent AH from doing normal business.
4. Architecture shall mean the general environment of hardware and software
that the program will operate in when placed in production.
* Projects include all other programming services and include:
development, regulatory and general business enhancements, and systems
upgrades.
*
Projects will be submitted to the Syntel Project Manger by an AH Project
Manager in the form of written request for Programming Services. The request
will include Specification description of the business problem and required
Architecture if appropriate.
*
*
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requested therefore. All such omitted material has been filed separately with
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*
*
From time to time during the term of this Agreement, AH will make changes in
the scope or priority of service requests or projects which are part of the
Services, or staff in excess of the staff dedicated by Syntel to provide the
Services. *
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requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
21
ATTACHMENT B
SERVICE LEVEL AGREEMENT
AH and Syntel agree that as of June 1, 1995 Syntel shall provide to AH
the Services at no less than the Service Levels identified below. Commencing
on the Effective Date and until June 1, 1995, Syntel will perform Services in a
manner reasonably acceptable to AH but in any event, no less than recognized
industry standards. Should Syntel fail to meet the standards * AH shall have
the right to terminate this Agreement without penalty to either party. AH
agrees that it will provide Syntel notice at least one month prior to sending
any notice of termination based on the fact that its performance is below the
standards set forth herein and the Agreement will be terminated if the
standards are not met in the third month. In the event Syntel should fail to
meet the standards set forth under * AH and Syntel acknowledge that the Service
Levels are baseline levels and agree to work together in good faith to
establish aggressive Service Levels for the Services that are fair and
reasonable to both parties. If the parties are unable to agree, the standards
provided herein will apply but Syntel can terminate this Agreement by notice on
July 1, 1995, or the next business day, said termination to be effective June
30, 1996.
*
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requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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*
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requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.
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*
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requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 406.