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EXHIBIT 10.20
Transatlantic Holdings, Inc.
80 Pine Street
New York, New York 10005
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.
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Customer Name
Contact Information
Allied World Assurance
Name: Andrew Peel
Company, Ltd.
Telephone: 441-505-5256 Fax No.
Email Address:
Mailing Address: 29 Richmond Road
Pembroke 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
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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 NT, 2000, 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
Page 5 of 15
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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
