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Exhibit 10.36
Software License Agreement
This computer software license agreement ("Agreement") is entered
into as of the
21st day of November, 2003, by and between OneShield, Inc.
("Licensor"), a
Delaware corporation with its principal place of business at 304
Cambridge Road,
Woburn, MA, and Darwin Professional Underwriters, Inc. a Delaware
corporation,
whose principal address is 76 Batterson Park Road, Farmington,
Connecticut,
06032 ("Licensee").
RECITALS
A. Licensor develops and markets computer software applications for
the
insurance industry, including a product known as Dragon; and
B. Licensee desires to acquire a license to use the Software and
Documentation
for its own internal use in processing professional D&O,
E&O, Medical
Malpractice, Fidelity and Crime, Fiduciary, EPLI, and related
professional
liability insurance policies underwritten by Licensee (the
"Intended Use") and
Licensor desires to grant Licensee such a license.
THEREFORE, the parties agree as set forth herein.
1.
DEFINITIONS
1.1 AUTHORIZED
PLATFORM
"Authorized Platform" means the computer or operating system, or
both, on
which Licensee is authorized to use the Software pursuant to
this
Agreement. A list of the Authorized Platforms is set forth in
Schedule A,
attached to this Agreement and incorporated by this reference. As
used
herein, the term "Authorized Platform" refers to all Authorized
Platforms
included on the aforementioned list.
1.2 DOCUMENTATION
"Documentation," means the user manuals, specifications and other
material
listed in Schedule B, attached to this Agreement and incorporated
by this
reference, which describe the functionality and use of the
Software.
1.3 SOFTWARE
"Software," means the computer program or programs marketed and
sold as
Dragon, in object code form only, and the Documentation. Software
includes
any
Updates and Upgrades and excludes any version of the Software or
other
software developed or marketed by Licensor that constitutes a
separate
product because of differences in function or features.
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2. LICENSOR'S
OBLIGATIONS
2.1 DELIVERABLES
Promptly following the execution of this Agreement, Licensor shall
make the
Software available to Licensee in a format appropriate for the
Authorized
Platform together with the Documentation (the "Delivery Date").
2.2 IMPLEMENTATION
SERVICES
Licensor shall provide Licensee with implementation services in
connection
with
Licensee's use of the Software according to the Implementation
Services Agreement executed on or about the date of this
Agreement.
2.3 SUPPORT AND
MAINTENANCE
Licensor shall provide Licensee with technical support in
connection with
Licensee's use of the Software according to the Maintenance and
Support
Agreement executed on or about the date of this Agreement.
3. GRANT OF
LICENSE
3.1 GRANT
Subject to the terms and conditions set forth in this Agreement,
Licensor
hereby grants to Licensee, and Licensee accepts, a
nonexclusive,
royalty-bearing, nontransferable, perpetual license in the
Software, to use
and
reproduce the Software exclusively for the Intended Use on the
Authorized Platform and to use the Documentation solely in
connection with
Licensee's use of the Software.
3.2 LICENSE
RESTRICTIONS
Except as specifically granted in this Agreement, Licensor owns and
retains
all
right, title, and interest in the Software, Documentation, and any
and
all
related materials. This Agreement does not transfer ownership
rights of
any
description in the Software, Documentation, or any related
materials to
Licensee or any third party. Licensee shall reproduce, install, and
render
the
Software operational only on the Authorized Platform and for
the
Intended Use. Licensee shall not distribute the Software to any
persons or
entities nor shall Licensee sell the Software to any person or make
any
other commercial use of the software, provided that, Licensee may
allow
access to the Software to other persons and entities for the sole
purpose
of
facilitating Customer's Intended Use. Licensor shall retain all
copyright and trademark notices on the Software and Documentation
and shall
take
other necessary steps to protect Licensor's intellectual
property
rights.
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4. LICENSE
FEES
4.1 LICENSE FEES
In
consideration for the License granted to Licensee under this
Agreement
the
Licensee shall pay Licensor $175,000 (the "License Fee").
Licensee
shall be responsible for all fees, and compliance with terms and
conditions
associated with third party software whether such fees are paid
directly by
Licensee or indirectly through Licensor. The License Fee shall be
due and
payable upon Licensee's acceptance under the Deployment Plan as
defined in
the
Implementation Services Agreement. Amounts not paid within 10 days
of
their due date shall bear interest at the lesser of 1.5% per month
or the
highest amount allowed by law.
4.2 TAXES
In
addition to other amounts payable under this Agreement, Licensee
shall
pay
any and all federal, state, municipal, or other taxes, duties,
fees, or
withholding currently or subsequently imposed on Licensee's use of
the
Software or the payment of the License Fee to Licensor, other than
taxes
assessed against Licensor's net income. Such taxes, duties,
fees,
withholding, or other charges shall be paid by Licensee or Licensee
shall
provide the appropriate authority with evidence of exemption from
such tax,
duty, fee, withholding, or charge. If Licensor is required to pay
any such
tax,
duty, fee, or charge, or to withhold any amount from monies due
to
Licensor from Licensee pursuant to this Agreement, Licensee shall
promptly
reimburse Licensor any such amounts.
5. TERM AND
TERMINATION
5.1 TERM
This
Agreement becomes effective on the date first set forth above.
Unless
sooner terminated as set forth in Section 5.2, below, the Agreement
shall
continue in effect until the expiration of Licensor's rights in
the
Software.
5.2 TERMINATION FOR
CAUSE
Either party, as applicable, shall have the right, in addition, and
without
prejudice to any other rights or remedies, to terminate this
Agreement as
follows:
(a) By Licensor, upon 10 days' written notice, if Licensee fails
to
pay the amounts due to Licensor pursuant to this Agreement that is
not
cured within such 10 days;
(b) By either party, upon 60 days' written notice, if the other
party
has committed a material breach of this Agreement, other than
failure
to make payments under Section 4, that is not cured within such
60
days; or
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(d) By either party, immediately upon written notice, if (a) all or
a
substantial portion of the assets of the other party are
transferred
to an assignee for the benefit of creditors, to a receiver, or to
a
trustee in bankruptcy, (b) a proceeding is commenced by or against
the
other party for relief under bankruptcy or similar laws and
such
proceeding is not dismissed within 60 days, or (c) the other party
is
adjudged bankrupt.
5.3 RIGHTS ON
TERMINATION
Licensor has and reserves all rights and remedies that it has by
operation
of
law or otherwise to enjoin the unlawful or unauthorized use of
Software
or
Documentation. On termination, (a) all rights granted to Licensee
under
this
Agreement cease and Licensee will promptly cease all use and
reproduction of the Software and Documentation and (b) Licensee
will
promptly return all copies of the Software to Licensor or destroy
all of
Licensee's copies of the Software and so certify to Licensor in
writing
within fourteen (14) days of termination. Sections 4.1, 6, 7, and 8
will
survive termination or expiration of this Agreement as will any
cause of
action or claim of either party, whether in law or in equity,
arising out
of
any breach or default.
6. WARRANTIES,
DISCLAIMER AND LIMITATIONS
6.1 WARRANTIES
Licensor hereby warrants to Licensee that (a) Licensor is the owner
of the
Software and the Documentation or has the right to grant to
Licensee the
license to use the Software and Documentation in the manner and for
the
purposes set forth in this Agreement without violating any rights
of a
third party, (b) that the software is free from material deviations
from
the
Documentation which significantly impair the Software's Intended
Use,
(c)
the media containing the Software is free from defects, and (d)
the
Software does not contain any program, routine, device, code or
instructions (including any code or instructions provided by third
parties)
or
other undisclosed feature, including, without limitation, a time
bomb,
virus, software lock, drop-dead device, malicious logic, worm,
Trojan
horse, that is capable of accessing, modifying, deleting,
damaging,
disabling, deactivating, interfering with, or otherwise harming
the
Software, any computers, networks, data or other electronically
stored
information, or computer programs or systems. OneShield does not
warrant
that
the Software is free of immaterial bugs or errors.
6.2 DISCLAIMER
THE
WARRANTIES SET FORTH IN SECTION 6.1, ABOVE, ARE IN LIEU OF, AND
THIS
AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED,
ORAL
OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (a) ANY WARRANTY THAT
THE
SOFTWARE IS ERROR FREE, WILL OPERATE WITHOUT
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INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE
CONFIGURATIONS; (b) ANY AND
ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND
(c)
ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
6.3 REMEDIES ON BREACH
OF WARRANTY
In
the event of any breach of the warranty
