EXHIBIT 10.20
Transatlantic Holdings, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
TIRS LICENSE AGREEMENT COVER PAGE
Allied World Assurance Company, Ltd. ("Licensee") has agreed to license the TIRS
computer software from Transatlantic Holdings, Inc. ("THI") on the terms and
conditions set forth in this License Agreement.
Customer Name Contact Information
Allied World Assurance Name: ▇▇▇▇▇▇ ▇▇▇▇
Company, Ltd. Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax No.
Email Address:
Mailing Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ HM 08 Bermuda
Initial Term Start Date Initial Term End Date
November 17, 2003 Subsequent to the Initial Term, this Agreement
shall automatically renew for successive
renewal terms of one (1) year each (Renewal
Term) unless either party notifies the other of
its desire not to renew prior to the expiration
of the Initial Term or relevant Renewal Term.
TIRS Software Version Maintenance and Upgrades
TIRS Version 7.000 THI will provide the upgrades and updates to
the TIRS Software that are generally made
available to licensees of the TIRS Software.
Required Environment Training
Unix server running Informix Five (5) consecutive days of onsite training is
IDS (database server) version included with initial license agreement.
9.x or higher and Windows NT, Additional training can be purchased from THI.
2000, or XP-based PC clients
running Informix Connect
version 9.x or higher.
Initial Term License Fees Payment Due Date
Year 1: $1,000,000 December 15, 2003
Year 2: $1,100,000 October 17, 2004
Year 3: $1,200,000 October 17, 2005
Total: $3,300,000
11/14/03
SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS
This Software License Agreement Terms and Conditions ("Agreement") is
entered into as of November 14, 2003 (the "EFFECTIVE DATE") by and between
Transatlantic Holdings, Inc. ("THI") and Allied World Assurance Company, Ltd.
("LICENSEE").
1. LICENSE GRANT
1.1. Subject to the terms and conditions set forth herein, THI hereby
grants to Licensee, a worldwide, nontransferable, nonexclusive,
nonassignable, limited license and right to access, use, copy (as
expressly permitted herein), and modify THI's The International
Reinsurance Systems computer software product(s) (as identified on the
Cover Page of this Agreement) together with all documentation and
other materials accompanying such product(s) (together, the "TIRS
SOFTWARE").
1.2. Neither this Agreement nor the TIRS Software may be sold, leased,
assigned, sublicensed or otherwise transferred by Licensee, in whole
or in part, unless otherwise agreed in writing by THI.
2. SCOPE
2.1. Licensee's use of the TIRS Software shall be limited to use to process
only Licensee's own internal business. Licensee is authorized to make
a reasonable number of copies of TIRS Software for the purposes of
quality assurance, testing, backup and disaster recovery purposes.
Licensee will keep records of each copy made, where such copy is
located and the authorized user thereof. Such records will be
available for inspection at any reasonable time by THI upon ten (10)
days notice.
2.2. Licensee has the right to develop interfaces to the TIRS Software in
conjunction with its use of the TIRS Software. Such Licensee-developed
software interfaces will remain the intellectual property of Licensee
or its vendors.
3. DELIVERY; INSTALLATION; SOURCE CODE ESCROW
3.1. The TIRS Software will be supplied as a run-time machine executable
application on a date to be agreed between the parties. Source code
for the TIRS Software is not licensed to Licensee, and will not be
provided to Licensee unless otherwise agreed between the parties in
writing.
3.2. Licensee is responsible for providing the following operating
environment upon which the TIRS Software will run: a Unix server
running Informix IDS (database server) version 9.x. or higher and
Windows ▇▇, ▇▇▇▇, or XP-based PC clients running Informix Connect
version 9.x or higher. Licensee shall furnish and make available its
equipment and facilities as required for the installation, operation
or
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maintenance of the TIRS Software, and take such action as may be
necessary to ensure that the operating environment specified in this
Section 3.2 is operable as of the agreed date of installation.
Licensee is also responsible for obtaining all appropriate licenses,
including all necessary licenses for the Informix software products,
relating to the operating environment.
3.3. THI will use commercially reasonable efforts to assist Licensee to
install and configure the TIRS Software, and, if necessary, the
Informix server software product.
3.4. Within thirty (30) days after the Effective Date, THI shall enter into
a source code escrow agreement (the "Source Code Escrow Agreement")
with a reputable escrow agent (the "Source Code Escrow Agent") and
make Licensee a beneficiary to the Source Code Escrow Agreement. In
the event that the Source Code Escrow Agreement expires or is
terminated, THI shall promptly notify Licensee thereof and THI agrees
to immediately enter into a new escrow agreement on the same terms
with another escrow agent, which shall be mutually agreed to by the
parties. Upon making Licensee a beneficiary to the Source Code Escrow
Agreement, THI will deposit with the Escrow Agent a documented copy of
the source code form of the TIRS Software, a listing thereof,
commentary, developer notes, libraries, tools, utilities and other
related materials in a source code escrow account. If THI corrects any
defects in the TIRS Software, or provides any new corrected releases,
new versions, modifications or enhancements to the TIRS Software, THI
shall simultaneously furnish the Escrow Agent with a corrected or
revised copy of the source code form of the TIRS Software (the revised
copies and the original copies, collectively, the "Escrowed
Materials"). THI shall obtain the right in the Source Code Escrow
Agreement for Licensee, as a beneficiary under the Source Code Escrow
Agreement, to audit THI's escrow account with the Escrow Agent in
order to confirm that THI has complied with its obligations to comply
its obligations to deposit all of the materials and documents required
pursuant to this Section.
3.5. The Escrowed Materials will be released from escrow if THI becomes the
subject of any voluntary or involuntary proceeding in bankruptcy,
liquidation, dissolution, receivership, attachment or composition, or
makes a general assignment for the benefit of creditors. Without any
limitation of the rights granted to Licensee in Section 1 of this
Agreement, THI hereby grants to Licensee, under any and all of THI's
intellectual property rights (both now and in the future), a
perpetual, irrevocable, non-exclusive right and license to access,
use, display and modify the Escrowed Materials ("Source Code License
Rights") solely for the purpose of supporting the TIRS Software;
provided, that although the foregoing grant is effective as of the
Effective Date, Licensee may exercise any such Source Code License
Rights only upon the occurrence of the release of the Escrowed
Materials to Licensee pursuant to this Section.
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3.6 All rights and licenses granted under or pursuant to this Agreement by
THI are, and shall otherwise be deemed to be, for purposes of Section
365(n) of the United States Bankruptcy Code (the "Code"), licenses to
rights to "Intellectual Property" as defined under the Code. The
parties agree that Licensee, as licensee of such rights under this
Agreement shall retain and may fully exercise all of its rights and
elections under the Code. The parties further agree that, in the event
of the commencement of any bankruptcy proceeding by or against either
party under the Code, either party shall be entitled to retain all of
its rights under this Agreement.
4. TERM AND TERMINATION
4.1. Term of License. Subject to earlier termination as described in
Section 4.2, and unless otherwise agreed in writing by the parties,
this Agreement shall commence on the Initial Term Start Date set forth
on the Cover Page, and shall continue until the Initial Term End Date
set forth on the Cover Page (such period being referred to as the
"INITIAL TERM"). Thereafter, this Agreement shall automatically renew
for successive renewal terms of one (1) year each ("RENEWAL TERMS"),
unless either party notifies the other of its desire not to renew at
least ninety (90) days prior to the expiration of the Initial Term or
Renewal Term then in effect.
4.2. Termination of License. This Agreement may be terminated prior to the
expiration of the Initial Term or any subsequent Renewal Term as
follows:
a. Either party may terminate this Agreement at any time upon
thirty (30) days prior written notice to the other party if
the other party has breached any of its material obligations
and has not cured such default prior to the expiration of
the thirty (30) day period. In addition, either party will
have the right to terminate this Agreement upon thirty (30)
days prior written notice if a Force Majeure Condition (as
defined in Section 12.4) has prevented performance by the
other party for more than one hundred twenty (120)
consecutive days.
b. Either party may terminate this Agreement at any time upon
thirty (30) days prior written notice to the other party if
a court or other governmental entity issues an order that
requires THI to materially alter the TIRS Software or
otherwise materially restricts or limits THI's ability to
deliver or license the TIRS Software as it exists as of the
Effective Date of this Agreement.
c. THI may terminate this Agreement at any time upon written
notice to Licensee if any assignment is made by Licensee for
the benefit of creditors, or if a receiver, trustee in
bankruptcy or similar officer shall be appointed to take
charge of any or all of Licensee's property, or if
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Licensee files a voluntary petition under federal bankruptcy
laws or similar state or foreign statutes or such a petition
is filed against Licensee and is not dismissed within
forty-five (45) days, or if Licensee liquidates or otherwise
winds up its business for any reason.
d. THI may terminate this Agreement if a third party acquires
Licensee, if Licensee merges with a third party, or if any
entity that did not have a majority ownership interest in
Licensee as of the Effective Date subsequently acquires a
majority ownership interest in Licensee, by providing twelve
months written notice to Licensee of such termination,
following THI's actual knowledge of such change in control
of Licensee.
4.3. The parties agree that unauthorized use, disclosure or transfer of the
TIRS Software may substantially diminish the value of such materials
and irreparably harm THI, and therefore further agree that THI shall
be entitled to injunctive and/or other equitable relief, in addition
to other remedies afforded by law, to prevent or restrain a breach of
this Agreement.
4.4. Upon any expiration or termination of this Agreement, Licensee shall
immediately return to THI (or, at THI's option, destroy and certify in
writing to THI that it has destroyed) the original and all copies of
the TIRS Software, including compilations, translations, partial
copies, archival copies, upgrades, updates, release notes and training
materials relating to the TIRS Software, and all security devices, if
any, and media on which original copies of the TIRS Software are
contained. If Licensee fails to return or destroy any such materials,
it shall continue to pay all License Fees on an annual basis until
such return or destruction, notwithstanding the termination of the
License.
5. LICENSE FEES
5.1. Initial License Term. The Licensee shall pay THI the License Fee
according to the schedule set forth on the Cover Page. Licensee's
failure to make such payments according to this schedule shall be
considered a material breach of its obligations under this Agreement.
5.2. Renewal Terms. No later than ninety (90) days prior to the beginning
of each Renewal Term, Licensee shall pay THI a renewal License Fee
equal to THI's then-current license fees. The terms and conditions for
each Renewal Term, except for pricing, shall be the same as those
contained in this Agreement unless otherwise modified in writing by
THI and provided to Licensee prior to the beginning of the pertinent
Renewal Term. THI shall give Licensee reasonable notice of any changes
in the License Fees for any Renewal Term from their levels in the
prior term. Licensee shall be obligated to pay the entire renewal
License Fee for any Renewal Term that has commenced, regardless of the
level of Licensee's actual or expected
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use of the TIRS Software during such Renewal Term. THI reserves the
right to modify these Terms and Conditions by providing notice to
Licensee of the new Terms and Conditions within thirty (30) days of
the start of a Renewal Term.
5.3. Payments Net. All payments, fees and other charges payable by Licensee
to THI under this Agreement are net of all freight charges, taxes
(including sales, value-added or use taxes), tariffs and other
governmental charges, all of which shall be paid by Licensee. Licensee
acknowledges that it is responsible for such governmental charges and
that if THI is required to pay any such charges based on the TIRS
Software, services or other items provided to Licensee, then such
charges, but not any penalties or interest, shall be billed to and
paid by Licensee. Licensee shall obtain and provide to THI any
certificate of exemption or similar document required to exempt any
transaction under this Agreement from sales tax, use tax or other tax
liability.
5.4. Payment Terms. All payments shall be made in U.S. Dollars.
5.5. Effect of Early Termination. In the event that this License Agreement
is terminated pursuant to Section 4.2, THI shall refund to Licensee
the applicable License Fee, as pro-rated over the Initial Term or any
applicable subsequent Renewal Term.
6. PROPRIETARY INFORMATION
6.1. THI shall have sole and exclusive ownership of all right, title and
interest in and to the TIRS Software and all modifications, updates,
upgrades and enhancements thereto (including ownership of all trade
secrets, copyrights, trademarks, service marks, and patentable
inventions pertaining thereto), subject only to the rights and
privileges expressly granted to you herein by THI. This Agreement does
not provide Licensee with title or ownership of the TIRS Software, but
only a right of limited use as provided herein. Licensee shall keep
the licensed TIRS Software free and clear of all claims, liens, and
encumbrances.
6.2. This Agreement shall not be construed as an encumbrance or limitation
of any kind on THI's right to develop or modify the TIRS Software in
any way. In addition, this Agreement shall not be construed as an
encumbrance or limitation of any kind on THI's right to transfer
ownership of the TIRS Software or to license or sublicense the TIRS
Software to any party, provided that the rights granted to Licensee in
this Agreement shall remain in effect for the Initial Term and any
subsequent Renewal Term.
6.3. Licensee understands and agrees that THI considers the TIRS Software,
Third Party Software (as defined in Section 8.1), associated
documentation, and all modifications, updates, upgrades and
enhancements thereto (including ownership of all trade secrets,
copyrights, trademarks, service marks, and patentable inventions
Page 6 of 15
pertaining thereto this Agreement, and the pricing and any negotiated
terms of this Agreement (collectively "THI Confidential Information"),
as between THI and Licensee, to be the proprietary and confidential
information of THI. Licensee agrees to maintain the THI Confidential
Information in confidence and, except for the right of Licensee to
make copies of the TIRS Software for the purposes authorized in
Section 2.1 above, Licensee agrees not to disclose, duplicate or
otherwise reproduce, directly or indirectly, the THI Confidential
Information in whole or in part. Licensee may disclose THI
Confidential Information to consultants retained by Licensee to the
extent reasonably necessary solely for such consultants to assist
Licensee in the permitted use of the TIRS Software and provided
Licensee obligates such consultant to protect the confidentiality of
the THI Confidential Information as contained herein.
6.4. Licensee agrees that neither it nor anyone acting on its behalf,
including Licensee's officers, directors, employees, agents, or any
person or party acting at the request of Licensee, shall disassemble,
reverse engineer, or reverse compile the TIRS Software in whole or in
part. Licensee agrees to take reasonable steps to ensure that no
unauthorized persons shall have access to the THI Confidential
Information and that all authorized persons having access to the THI
Confidential Information shall refrain from any such disclosure,
duplication or reproduction. Licensee agrees not to remove any
copyright notice or other proprietary markings from the THI
Confidential Information, and any copy thereof made by Licensee for
backup purposes shall contain the same copyright notice and
proprietary markings contained on the copy of the TIRS Software
furnished by THI to Licensee hereunder.
6.5. If the THI Confidential Information will be provided or made available
to the U.S. Government, any use, duplication, or disclosure by the
U.S. Government of the THI Confidential Information shall be subject
to the restrictions applicable to proprietary commercial computer
software set forth in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software -
Restricted Rights clause at 48 CFR 52.227-19, as applicable.
6.6. During its performance of this Agreement, THI may be supplied with or
have access to written, tangible, oral or visual "Licensee
Confidential Information," as defined below. THI shall maintain the
Licensee Confidential Information in confidence, in a manner no less
restrictive than it would use to maintain its own confidential
information (in no case using less than a reasonable duty of care),
and use Licensee Confidential Information solely for the purpose of
THI performing its obligations under this Agreement and shall obligate
its employees and permitted subcontractors to make no other use of
such Licensee Confidential Information. THI and its employees and
permitted subcontractors shall not disclose such Licensee Confidential
Information to any third party, without Licensee's express written
consent. "Licensee Confidential Information" shall mean all
information concerning
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Licensee concerning Licensee's business affairs, property, methods of
operation, processing systems or other information, in tangible, oral
or visual information received by THI while on the premises of
Licensee, or otherwise, and which THI personnel are likely to
recognize as information which Licensee considers to be confidential
and which Licensee takes reasonable precautions to protect from
unauthorized use or disclosure.
6.7. Each party acknowledges that its failure to comply with the provisions
of this Section 6 may result in irreparable harm to the other for
which a remedy at law may be inadequate, and therefore, in the event
of breach or threatened breach by the recipient of information
protected by this Section, the other party shall be entitled to seek
equitable relief in the form of specific performance and/or an
injunction for any such actual or threatened breach, in addition to
the exercise of any other remedies at law and in equity.
6.8. The confidentiality obligations in this Section shall not apply to
information disclosed hereunder which:
a. was previously known to recipient;
b. is or becomes generally available to the public through no
fault of the recipient;
c. is developed by or on behalf of the recipient independent of
any information furnished under this Agreement; or
d. is received by recipient from a third party as a matter of
right.
Provided, however, if THI, with respect to Licensee Confidential
Information, or Licensee, with respect to THI Confidential
Information, is required to disclose such information by law or by any
governmental agency having jurisdiction pursuant to an order to
produce or in the course of a legal proceeding pursuant to a lawful
request for discovery, then, THI or Licensee, as applicable, shall
utilize reasonable efforts to promptly notify the other of the order
or request in discovery and reasonably cooperate with Licensee or THI,
as applicable, if the other elects (at its expense) to seek to limit
or avoid such disclosure by any lawful means.
6.9. Licensee agrees that the TIRS Software is the intellectual property of
THI. Licensee agrees not to directly or indirectly, register, apply
for registration or attempt to acquire any legal protection for any of
the TIRS Software or any proprietary rights therein.
6.10. Licensee agrees to utilize reasonable efforts to notify THI
immediately and in writing of all circumstances surrounding the
unauthorized possession or use of the
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TIRS Software and associated documentation by any person or entity of
which Licensee may become aware. Licensee agrees to cooperate with THI
in any litigation relating to or arising from such unauthorized
possession or use.
6.11. Notwithstanding any other provision of this Agreement, the
obligations set forth in this Section 6 will survive the termination
of this Agreement for any reason. However, the confidentiality
obligations set forth in this Section 6 will terminate 10 years after
the expiration or termination of this Agreement.
7. WARRANTIES
7.1. THI warrants that for a period of ninety (90) days from the date of
installation, the TIRS Software, when properly used, will operate
substantially in accordance with the specifications contained in its
documentation. THI's entire liability and Licensee's exclusive remedy
under this warranty shall be that THI will use reasonable commercial
efforts to correct, provide a workaround for, or replace malfunctions
in the TIRS Software, at THI's cost and expense, provided that written
notice itemizing the malfunctions is given to THI during the warranty
period.
7.2. The warranty set forth above shall not apply to the degree that the
malfunction occurs because (a) the affected TIRS Software has not been
used in accordance with the TIRS documentation; (b) the affected TIRS
Software has been altered, modified or converted by License without
the prior written approval of THI; (c) of the malfunctioning of
Licensee's hardware or software THI shall not be required to respond
to a warranty claim hereunder to the extent that Licensee has not
timely paid amounts due and owing to THI under this Agreement. THI
does not warrant that TIRS Software will operate uninterrupted or
error free, that the functions contained in the TIRS Software will
operate in combination with other software or hardware selected by
Licensee, or that the TIRS Software will meet Licensee's requirements.
7.3. THI does not warrant that TIRS Software will operate in the event of
any Force Majeure Condition (as defined in Section 12.4). Licensee is
solely responsible for establishing its own disaster recovery plan.
7.4. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, THE
TIRS SOFTWARE (INCLUDING ANY MODULES OR COMPONENTS LICENSED BY THI AND
PROVIDED WITH THE TIRS SOFTWARE) IS BEING PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. THE PARTIES DISCLAIM ANY OTHER REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE OR
NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
ACCURACY, INTEGRATION, VALIDITY,
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EXCLUSIVITY, MERCHANTABILITY, NON-INTERFERENCE WITH ENJOYMENT, FITNESS
FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE
OF DEALING OR USAGE OF TRADE.
7.5. THE WARRANTIES SET FORTH IN THIS SECTION 7 ARE EXPRESSLY SUBJECT TO
THE LIMITATIONS OF SECTION 11 (LIMITATION OF LIABILITY).
8. THIRD PARTY SOFTWARE
8.1. The TIRS Software incorporates program elements and/or databases
licensed from Actuate Corporation ("Actuate" and such software is
referred to as "Third Party Software"), title to which is retained by
Actuate.
8.2. THIRD PARTY SOFTWARE, PROGRAM ELEMENTS AND DATA ARE PROVIDED "AS IS."
THI DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING
THE USE, OR RESULTS OF USE, OF THE THIRD PARTY SOFTWARE, INCLUDING
PROGRAM ELEMENTS AND/OR DATABASES IN THE THIRD PARTY SOFTWARE, OR
RELATED MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY,
CURRENTNESS OR OTHERWISE. THI ASSUMES NO RISK AS TO PERFORMANCE AND
RESULTS OF THE THIRD PARTY SOFTWARE.
8.3. THI SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE)
ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE THIRD PARTY
SOFTWARE, PROGRAM ELEMENTS OR DATA SUPPLIED BY ACTUATE EVEN IF THI HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. SOFTWARE SUPPORT
9.1. Support and Upgrades to the TIRS Software. Provided Licensee has paid
the License Fees set forth in the Cover Page during the Initial Term
and any subsequent Renewal Term, Licensee shall receive (i) reasonable
telephone technical consultation during THI's normal business hours
with THI's technical support staff on the use of the TIRS Software,
and (ii) all upgrades and updates to the TIRS Software that are
generally made available to licensees of the TIRS Software. Licensee
agrees to install new versions and releases of the TIRS Software.
Licensee further agrees and acknowledges that THI will maintain and
support old versions of TIRS for a period of one (1) year from the
date that Licensee is notified that a new version or release is
available for installation.
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9.2. Training. THI agrees to provide up to five (5) consecutive days of
on-site training during the Initial Term. During the Initial Term and
any Renewal Term of this Agreement, additional training can be
purchased from THI at THI's then-prevailing rates for training. For
purposes of example, as of the Effective Date, THI's rate for training
is as follows: $1500.00 per training day (6 hours) plus the addition
of all travel related expenses including airfare, meals, and lodging.
9.3. Access to Premises. Licensee shall grant to THI such access to
Licensee's equipment and facilities, and to the TIRS Software
installed on Licensee's equipment, as may be necessary or appropriate
for THI to perform its obligations under this Agreement.
9.4. Licensee Requested Customizations. Licensee may request a custom
modification or addition to the TIRS Software exhibiting functionality
that is beyond the scope of the TIRS Software as of the date of such
request ("Customization"). THI, in its sole discretion, may agree to
implement such Customization on terms and conditions that are mutually
acceptable to THI and Licensee, and unless otherwise agreed between
THI and Licensee, THI shall own the Customization and may make it
available to any other party as THI may determine in its sole
discretion.
9.5. Development of TIRS Software. THI agrees that Licensee may submit
recommendations to the TIRS roadmap committee, which is the
decision-making body that determines the future enhancements and
releases of the TIRS Software.
10. THI INDEMNIFICATION
10.1. THI shall indemnify, defend, and hold Licensee and its officers,
directors harmless from any action against Licensee to the extent that
it is based on an allegation that the TIRS software and Third Party
Software licensed hereunder has infringed an intellectual property
right or trade secret, and pay those damages or costs related to the
settlement of such action or finally awarded against Licensee in such
action, including but not limited to attorneys' fees, provided that
licensee (i) promptly notifies THI of any such action, (ii) gives THI
full authority, information and assistance to defend such claim and
(iii) gives THI sole control of the defense of such claim and all
negotiations for the compromise or settlement thereof.
10.2. THI shall have no liability hereunder with respect to any claim based
upon (a) TIRS Software of the Third Party Software that has been
materially modified by anyone other than THI; (b) use of other than
the then-current release of the TIRS Software or the Third Party
Software, if infringement could have been avoided by use of the
then-current release and such current release has been made available
to Licensee; (c) use of the TIRS Software or the Third Party Software
in conjunction with Licensee data where use with such data gave rise
to the infringement claim; (d) use of any software in a manner
inconsistent with its documentation, and/or (e) use of
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any TIRS Software or Third Party Software which use materially
breaches this Agreement. In addition, THI shall have no indemnity
obligation for claims of infringement resulting from any combination,
operation or use of the TIRS Software or the Third Party Software, or
any components thereof, with any software or hardware not supplied by
THI.
10.3. If THI determines that the TIRS Software or the Third Party Software
is or is likely to be the subject of a claim of infringement, THI
shall have the right (a) to replace Licensee's copy of the TIRS
Software or Third Party Software with non-infringing software; (b) to
modify such software so as to cause such software to be free of
infringement; (c) to procure, at no additional cost to Licensee, the
right to continue to use such software; or (d) to terminate the
license to use the TIRS Software or Third Party Software and
associated documentation, and refund to Licensee the applicable
Licensee Fee (pro-rated over the License Term).
10.4. Maximum Intellectual Property Indemnification. The maximum indemnity
of THI to the Licensee for any and all damages, liabilities, costs and
expenses (including reasonable attorney's fees) covered by this
Section 10, for all claims made under this Section 10 in the
aggregate, shall be limited to the amount of licensee fees paid by
Licensee to THI over the course of the twelve (12) months preceding
the notification of THI by Licensee of a claim for indemnity under
Section 10.1.
10.5. THE PROVISIONS OF THIS SECTION 10 STATE THE EXCLUSIVE LIABILITY OF
THI AND THE EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY CLAIM OF
INTELLECTUAL PROPERTY OR TRADE SECRET INFRINGEMENT BY THE SOFTWARE OR
ANY PART THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NON-INFRINGEMENT, AND
INDEMNITIES WITH RESPECT THERETO.
11. LIMITATION OF LIABILITY
11.1. Licensee's sole remedies for THI's liability regarding the
performance of training, consulting, software support, or other
services, if any, provided in conjunction with the software shall be
limited to the re-performance of any defective service provided by
THI, or if re-performance is not available or practical, then a
pro-rata refund of the payments allocable to the defective service.
11.2. Except as expressly specified in this license agreement, neither THI
nor any third party from whom THI receives marketing or licensing
rights ("TECH PARTNER") shall be liable for any loss or damage that
may arise in connection with Licensee's use of the software. Licensee
acknowledges that data conversion, including data input to the TIRS
Software product, is subject to human and machine errors, omissions,
delays and losses, including inadvertent loss of data or damage to
media that may
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give rise to loss or damage. THI shall not be liable for any such
errors, omissions, delays, or losses. Licensee is responsible for
adopting reasonable measures to limit the impact of such problems,
including backing up data, and adopting procedures to ensure the
accuracy of input data; examining and confirming results prior to use,
and adopting procedures to identify and correct errors and omissions,
replace lost or damaged media, and reconstruct data. Licensee is also
responsible for complying with all local, state, and federal laws
pertaining to the use and disclosure of any data.
11.3. IN NO EVENT SHALL THI OR ITS TECH PARTNERS BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF THI
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
OF ANY KIND, EXCEPT WITH RESPECT TO THE DEFENSE OF INFRINGEMENT CLAIMS
UNDER SECTION 10, ABOVE, IN NO EVENT SHALL LICENSEE BE ENTITLED TO ANY
MONETARY DAMAGES AGAINST THI OR ITS TECH PARTNERS IN EXCESS OF THE
LICENSE FEES PAID TO THI BY LICENSEE UNDER THIS AGREEMENT FOR THE YEAR
IN WHICH THE CAUSE AROSE.
12. GENERAL
12.1. No Waiver. The failure of either party to exercise any right granted
herein, or to require the performance by the other party hereto of any
provisions of this Agreement or the waiver by either party of any
breach of this Agreement, will not prevent a subsequent exercise or
enforcement of such provisions or be deemed a waiver of any subsequent
breach of the same or any other provisions of this Agreement.
12.2. Assignment. Licensee may not assign this Agreement or any license
granted hereunder whether by operation of law, change of control, or
in any other manner, without the prior written consent of THI.
12.3. Benefit. Subject to provisions hereof restricting assignment, this
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
12.4. Force Majeure. If the performance of this Agreement or any obligation
hereunder, except for the making of payments hereunder, is prevented,
restricted or interfered with by reason of fire, flood, earthquake,
explosion or other casualty or accident, strikes or labor disputes
affecting third-party vendors, inability to procure or obtain delivery
of parts, supplies or power, war or other violence, any law, order,
proclamation, regulation, ordinance, demand or requirements of any
governmental agency, electrical power surges or outages or any act or
condition whatsoever beyond the reasonable control of the affected
party ("FORCE MAJEURE CONDITION"),
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the party so affected shall be excused from delays in performing or
from its failure to perform hereunder, provided that such party takes
reasonable steps to avoid or remove such cause of nonperformance and
will resume performance hereunder with dispatch whenever such causes
are removed.
12.5. Export. Licensee shall not export, re-export or transfer, whether
directly or indirectly, the TIRS Software or any system containing the
TIRS Software outside the United States of America without first
complying with the applicable export laws of the United States of
America and the import laws of the country in which the TIRS Software
is to be used.
12.6. Priority. Inconsistencies between the various documents that comprise
this Agreement shall be resolved in the following order of precedence,
lower numbered item prevailing: (1) Cover Page(s), (2) Terms and
Conditions, and (3) Exhibits and Schedules (if any).
12.7. Severability. If any provision of this Agreement is determined by a
court of competent jurisdiction to be or becomes unenforceable or
illegal, such provision shall be deemed eliminated and the remainder
of this Agreement shall remain in effect in accordance with its terms
as modified by such deletion.
12.8. Modifications In Writing. Any modification or amendment of any
provision of this Agreement must be in writing and bear the signature
of the duly authorized representative of each party.
12.9. Venue. This Agreement is made and will be governed by and construed
in accordance with the laws of the State of New York, without giving
effect to its conflicts-of-laws provisions.
12.10. Prevailing Party. In the event a dispute arising under this
Agreement results in litigation, the non-prevailing party shall pay
the court costs and reasonable attorneys' fees of the prevailing
party.
12.11. Press Release. Licensee agrees that THI, upon the execution of this
Agreement, may issue a press release, subject to Licensee's reasonable
and prompt review, indicating that Licensee has chosen to use the TIRS
Software.
12.12. Integration. This Agreement sets forth the entire agreement and
understandings between the parties hereto with respect to the subject
matter hereof. This Agreement merges all previous discussions and
negotiations between the parties and supersedes and replaces any other
agreement that may have existed between THI and Licensee with respect
to the subject matter hereof.
12.13. Survival. The provisions of Sections 4.3, 4.4, 6, 7, 8, 11 and 12
shall survive the termination of this Agreement.
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The parties hereby acknowledge that they have read, understand, and accept this
Agreement and all Exhibits and Addenda hereto.
TRANSATLANTIC HOLDINGS, INC. ALLIED WORLD ASSURANCE COMPANY, LTD.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------- ------------------------------------
NAME: ▇▇▇▇ ▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TITLE: Vice President & General Counsel TITLE: Executive Vice-President
DATE: November 13, 2003 DATE: November 13, 2003
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