Exhibit 10.12
MASTER SERVICES AGREEMENT
This Master Services Agreement, effective as of May 9, 2006 (the "EFFECTIVE
DATE"), is entered into by and between:
AIG Technologies, Inc. ("AIGT") And
Two Peachtree Hill Road Allied World Assurance Company, Ltd
Xxxxxxxxxx, Xxx Xxxxxx 00000 00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Phone#: 000-000-0000
Fax: 000-000-0000 Phone#: 000-000-0000
Fax: 000-000-0000
This Master Services Agreement and the Schedules and Attachments listed below,
and any Exhibits attached thereto (which are hereby incorporated by reference)
are collectively referred to as this "AGREEMENT:"
Schedule A Standard Terms and Conditions
Schedule B Fees and Services, as may be amended and restated from time
to time by the parties hereto.
Schedule C Customer Equipment, as may be amended and restated from
time to time by the parties hereto.
Schedule D Customer Facilities
Schedule E Optional Services
The term (the "TERM") of this Agreement shall begin on the Effective Date and,
unless earlier terminated pursuant to the terms hereof, shall expire on the date
that is the one-year anniversary of the Effective Date (the "Termination Date").
If the Termination Date is not a Business Day (as such term is defined herein),
then this Agreement shall expire on the next Business Day immediately following
the Termination Date.
This Agreement sets forth the entire understanding and agreement of the parties
and supersedes any and all prior or contemporaneous agreements or understanding,
written or oral, between the parties as to the subject matter of this Agreement.
AIGT and Customer acknowledge having read this Agreement and agree to be bound
by its terms. All services provided under this Agreement are subject to it.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
AIG TECHNOLOGIES, INC. ALLIED WORLD ASSURANCE COMPANY, LTD.
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
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SCHEDULE A
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS.
1.1 "AFFILIATE" with respect to a party, shall have the meaning set forth in
Section 3.4 below.
1.2 "AIGT FACILITY" shall mean any location owned, leased, rented or used by
AIGT where the Customer Equipment (if applicable) or any Service is located or
provided.
1.3 "AIGT SOFTWARE" shall mean any software that is installed on any Customer
Equipment or otherwise made available to Customer in connection with the
Services and that is either (a) owned by AIGT or its Affiliates or (b) licensed
to AIGT and provided to Customer herein.
1.4 "APPLICABLE LAW" shall mean (a) any law, statute, regulation, rule,
ordinance or subordinate legislation in force from time to time to which a party
is subject and which is applicable to a party's obligations under this
Agreement; (b) the common law as applicable to a party's obligations under this
Agreement; (c) any binding court order, judgment or decree to which a party is
subject and that is applicable to a party's obligations under this Agreement;
and (d) any directive, policy, rule or order that is binding on a party, that is
made or given by any government, an agency thereof, or any regulatory body and
that is applicable to a party's obligations under this Agreement; in each case,
of any country, the European Union, or other national, federal, commonwealth,
state, provincial or local jurisdiction and of any exchange or association
(including the New York Stock Exchange and the National Association of
Securities Dealers) whose regulations are binding on either party pursuant to a
self-regulating mechanism approved by a governmental entity and which are
applicable to a party's obligations under this Agreement.
1.5 "BUSINESS DAY" shall mean any day, other than a Saturday or Sunday, which is
not a day on which banking institutions in New York City, Bermuda, Dublin or
London are authorized or obligated by law or executive order to close.
1.6 "CONFIDENTIAL INFORMATION" shall have the meaning given in Section 8.1
(Definition of Confidential Information).
1.7 "CUSTOMER" shall mean Allied World Assurance Company, Ltd ("AWAC") and its
Affiliates.
1.8 "CUSTOMER DATA" shall mean any information relating to an identifiable
individual or legal person (as specified by Applicable Law) that AIGT processes
on behalf of Customer in performing the Services. "Customer Data" excludes: (a)
information processed by AIGT for any reason other than AIGT'S performance of
the Services; (b) business communications between or among AIGT, its Affiliates,
its customers, Customer, Subcontractors or Third Parties related to the Services
or otherwise; and (c) information relating to employees of AIGT, its Affiliates,
and its and their Subcontractors.
1.9 "CUSTOMER EQUIPMENT" shall mean any Equipment owned, rented or leased by
Customer and provided to AIGT for use in performing the Services, as listed on
Schedule C (Customer Equipment) attached hereto.
1.10 "CUSTOMER FACILITY" shall mean any location: (a) owned, leased, rented or
used by Customer that AIGT may use in providing the Services and to/from which
data is sent as part of the Services; and (b) that is listed in Schedule D
(Customer Facilities) attached hereto.
1.11 "EQUIPMENT" shall mean the computer and telecommunications equipment owned,
rented or leased by Customer or AIGT and used by AIGT to provide the Services
and shall include the equipment set forth in Schedule C (Customer Equipment)
attached hereto.
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1.12 "SERVICES" shall mean any and all services performed by or on behalf of
AIGT as described herein.
1.13 "SERVICE LEVELS" shall mean the levels of performance under which AIGT'S
provision of the Services will be measured, if applicable, in accordance with
Schedule B (Fees and Services) attached hereto.
1.14 "SOFTWARE" shall mean Systems Software, unless a more specific reference is
required.
1.15 "SUBCONTRACTOR(S)" shall mean any contractor, vendor, agent or consultant,
together with its employees, that may be retained by a party.
1.16 "SYSTEMS SOFTWARE" shall mean those programs (including the supporting
documentation, media, on-line help facilities and tutorials) that perform tasks
basic to the functioning of the Equipment.
1.17 "TERM" shall have the meaning given on the cover page of this Agreement.
1.18 "THIRD PARTY" shall mean any entity or person other than AIGT and Customer
and their respective Affiliates, directors, officers, and employees.
Capitalized terms used in this Schedule A but not otherwise defined in this
Schedule A shall have the meanings ascribed to such terms as set forth on the
cover page of this Agreement.
2. SERVICES.
2.1 GENERAL. Subject to Customer's payment of all applicable fees and its
compliance with all other material terms and conditions of this Agreement, AIGT
shall provide the Services to Customer in accordance with the Service Levels and
otherwise in accordance with the terms and conditions of this Agreement.
2.2 COMPATIBILITY AND INTEGRATION.
AIGT shall provide all of the Services and the Equipment (excluding the Customer
Equipment, if any), AIGT network(s) (as described in Schedule B), hardware, AIGT
Software, spare parts, replacement parts, and other resources utilized by AIGT
(and by its subcontractors and Third Party service vendors) in connection with
the Services provided by AIGT to Customer, or approved or recommended by AIGT
for use by Customer in connection with the Services so that such shall be fully
compatible with, and shall not materially and adversely affect, or be materially
and adversely affected by, the software, equipment and network components that
are owned or leased by, or licensed to, Customer, which Customer uses to receive
the Services.
2.3 CONFIRMATION. AIGT has made certain assumptions in creating the Schedules
attached hereto, which assumptions are based upon information and materials
supplied by or on behalf of Customer. During the three (3) months after the
Effective Date (the "CONFIRMATION PERIOD"), Customer and AIGT may inventory and
confirm any information that is reflected in or omitted from any Schedule based
upon information supplied by Customer. In the event that, during the
Confirmation Period, Customer or AIGT discovers inaccuracies in the information
contained in any such Schedule or inaccuracies because of an omission from any
Schedule, AIGT and Customer shall amend this Agreement to provide for an
equitable adjustment to the fees and other terms affected by such inaccuracies.
After the Confirmation Period, if a material inaccuracy or omission is
discovered, the parties shall amend the Agreement and equitably adjust the terms
hereof including the fees if necessary.
2.4 CUSTOMER-PROVIDED ASSISTANCE.
(a) Assigned Tasks
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Customer agrees to perform all tasks specifically assigned to it in this
Agreement, or in any Schedule attached hereto, and may, in its discretion, use
other Subcontractors to perform any such task, provided that Customer shall
remain primarily liable to AIGT for all acts or omissions of any such
Subcontractors.
(b) Right to Use
Customer shall be responsible for obtaining (including paying any applicable
fees) all required consents, including those for the necessary licenses to use,
and to permit AIGT to use for the limited purpose of performing the Services
contemplated hereunder, software applications that AIGT is required to use in
connection with its performance of the Services hereunder.
(c) Assistance and Cooperation
Customer will assist and cooperate with AIGT by promptly providing, during
normal business hours, such information and access to the personnel, applicable
facilities, and information technology resources of Customer as AIGT may
reasonably request and require in order to perform its obligations in accordance
herewith. Customer acknowledges that its timely provision of (and AIGT's
reasonable access to) the Customer Facility, Customer Equipment, assistance,
cooperation, and complete and accurate information and data from Customer's
officers, agents, Subcontractors and employees ("COOPERATION") is essential to
the performance of the Services, and that AIGT shall not be liable for any
deficiency or delay in performing the Services if such deficiency or delay
results solely from Customer's failure to provide reasonable Cooperation as
required hereunder.
3. PROJECT MANAGEMENT AND PERSONNEL.
3.1 AIGT'S PERSONNEL
(a) AIGT shall initially assign one (1) individual designated as an "ACCOUNT
EXECUTIVE" responsible with respect to AIGT'S performance of the Services. The
Account Executive shall be Customer's primary contact in connection with the
Services. AIGT shall ensure that at least one (1) Account Executive is assigned
to Customer pursuant to and during the Term of this Agreement.
(b) Additional AIGT Personnel
In addition to the individual identified as the Account Executive, AIGT shall
also assign such additional personnel to the performance of the Services, and
engage such Third Party consultants and subject matter experts, as are
necessary, sufficient, and appropriate to fulfill all of AIGT'S obligations in
accordance with this Agreement and to provide Customer with Services meeting the
requirements of this Agreement, including the Service Levels.
(c) AIGT agrees that: (a) all Services provided under this Agreement shall be
performed and completed by AIGT for Customer (1) in accordance with this
Agreement and by competent, qualified personnel, in a prompt, timely,
professional, work person-like manner; and (2) subject to Customer's duty to
inform AIGT of any specific actions AIGT must take with respect to protecting
Customer Data, in compliance with all Applicable Laws and in accordance with
efficient, cost-beneficial, and productive standards and practices then used by
reputable service vendors providing similar services to customers similarly
situated as Customer; and (b) no amendment to this Agreement or additional cost
or expense shall be required by AIGT during the Term in order for it to be able
to perform the Services in accordance with the terms hereof.
3.2 CUSTOMER'S PERSONNEL
Customer shall assign an individual to act as Customer's "PROJECT MANAGER-AIGT".
Customer's Project Manager-AIGT shall at all times: (a) act as the primary
liaison between Customer and AIGT'S Account Executive; (b) have overall
responsibility for directing all of Customer's activities hereunder and the
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Services as a whole; and (c) be vested with the necessary authority to fulfill
all of the responsibilities of Customer's Project Manager-AIGT described in this
Section 3.2. In the event of the unavailability of Customer's Project
Manager-AIGT, Customer will make available, within a reasonable period of time,
such suitable substitute as Customer shall deem appropriate at the time.
Customer shall also assign such additional personnel in connection with the
Services as are necessary and appropriate to fulfill Customer's obligations in
accordance with this Agreement.
3.3 CUSTOMER'S POLICIES AND PROCEDURES
AIGT agrees that AIGT, any Subcontractors of AIGT and their respective
employees, and all other agents and representatives of AIGT or its
Subcontractors, shall at all times comply with and abide by all policies and
procedures of Customer (as such exist as of the Effective Date and have been
provided to AIGT in writing, or as such may be revised or established by
Customer from time to time, provided that AIGT has advance prior written notice
of such change or establishment) that reasonably pertain to AIGT in connection
with AIGT'S performance of the Services hereunder, including all such policies
that pertain to conduct on Customer's premises.
3.4 USE OF AFFILIATES AND SUBCONTRACTORS
AIGT may subcontract all or any part of the Services to be performed hereunder,
including subcontracting to an Affiliate without the prior written consent of
Customer. Notwithstanding the foregoing, AIGT shall not be relieved of its
obligations under this Agreement by use of any Affiliates or Subcontractors and
all such performance of such Services by each such Affiliate or Subcontractor
shall at all times be in accordance with the terms and conditions of this
Agreement. AIGT shall be and remain fully responsible and liable for the
performance of any such Affiliate or Subcontractor and for fulfilling all of
AIGT'S obligations under this Agreement. Prior to performing any Services, each
Subcontractor engaged or retained by AIGT to perform all or any part of the
Services hereunder shall execute a confidentiality agreement with AIGT that
imposes obligations with respect to Confidential Information of or about
Customer and its Affiliates that are at least as restrictive as those set forth
in this Agreement. As used in this Agreement, the term "AFFILIATE[S]" shall
mean, with respect to a party, any person or entity that, directly or
indirectly: (i) owns or controls such party (i.e., such person or entity owns or
controls more than fifty percent (50%) of the outstanding voting securities or
other equity interests of such party); (ii) is owned or controlled by such
party; or (iii) is under common ownership or control with such party.
3.5 RELATIONSHIP MANAGEMENT
(a) Project Status Reports
Each month during the Term of this Agreement (or more frequently as needed based
on the urgency of the project(s) being undertaken), AIGT shall deliver to
Customer's Project Manager-AIGT, and such other Customer personnel as may be
designated by Customer in writing from time to time, a written report
summarizing the progress of the Services during the preceding month (or shorter
period, as the case may be), including problems that have occurred and could
delay AIGT'S performance of any of the Services or other anticipated activities,
problems anticipated or expected during the upcoming month (or shorter period)
and any remedial actions taken or proposed to be taken by AIGT in response to
any problems that have occurred or are anticipated or expected to occur.
4. FACILITIES.
4.1 CUSTOMER EQUIPMENT AT AIGT FACILITIES. To the extent AIGT is providing
Services using Customer Equipment at AIGT'S Facilities, the following terms and
conditions shall apply:
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(a) No Property Right. AIGT shall install Customer Equipment in the AIGT
Facility for the purpose of providing Services hereunder. Such installation
shall be in accordance with this Agreement, the Schedules, and as AIGT otherwise
deems necessary and appropriate in order to provide the Services. Customer
grants AIGT all necessary rights and permissions in connection therewith. The
use and placement of Customer Equipment in the AIGT Facility shall not create or
vest in Customer any easement, leasehold interest or other property right of any
nature in the AIGT Facility or in any property located in the AIGT Facility
except for Customer Equipment. Nothing contained herein shall limit AIGT'S right
to access, operate and use the AIGT Facility as it deems necessary or
appropriate in its sole discretion.
(b) Access. Customer, its employees and Subcontractors shall be provided
reasonable access to Customer Equipment in the AIGT Facility during regular
business hours, provided that Customer provides AIGT with forty-eight (48) hours
prior written notice setting forth: (i) the identity of the Customer's employee
or Subcontractor who will access the AIGT Facility; and (ii) the specific
purpose(s) for which Customer needs access to its Equipment and the work
Customer intends to undertake. AIGT shall have the right to reject Customer's
access request or to dictate the terms of such access; provided, that, such
access request shall not be unreasonably rejected or delayed and that the terms
of such access shall not be unreasonable. Notwithstanding the foregoing, in the
case of a bona fide emergency in which Customer, its employees or Subcontractors
need to gain immediate access to the AIGT Facility, AIGT shall use its
commercially reasonable efforts to grant immediate access; provided, however,
that such individuals must abide by AIGT'S emergency access procedures as posted
or as otherwise communicated in writing, and such individuals must also comply
with any other reasonable terms of access dictated by AIGT.
(c) Maintenance. AIGT will periodically conduct routine scheduled
maintenance of the AIGT Facility during which time Customer Equipment may be
unable to transmit or receive data, and Customer may be unable to access its
Equipment. AIGT shall provide Customer with written notice at least 15 days
prior to conducting such routine maintenance. AIGT shall use its commercially
reasonable efforts (i) to conduct such AIGT Facility maintenance during non-peak
hours and (ii) to complete such routine scheduled maintenance as promptly and
efficiently as possible so as to minimize any inconvenience to Customer, any
interruption of Services or any failure to achieve applicable Service Levels.
During such routine maintenance, AIGT shall not be liable for interruption of
Customer's Services or failures to achieve any applicable Service Levels, unless
such interruption of Customer's Services or failure to achieve any applicable
Service Levels is the result of any gross negligence or willful misconduct of
AIGT. The notice provisions of this Section 4.1(c) shall apply to routine
scheduled maintenance only and not to any maintenance required to be performed
by AIGT on an urgent or emergency basis, for which reasonable notice (if
possible) shall be required.
(d) Placement. AIGT shall have the right to designate the placement of
Customer Equipment in the AIGT Facility, as it deems necessary from time to
time, to provide the Services hereunder.
4.2 PROVISION OF CUSTOMER FACILITIES. To the extent AIGT is providing Services
using Customer's Equipment at Customer's Facilities, the following terms and
conditions shall apply:
(a) Access. Customer shall provide AIGT, at no charge, temporary use of
space, Equipment and support at the Customer Facility as reasonably necessary
for the performance of the Services, including all heat, light, power, air
conditioning, uninterruptible power supply and other similar utilities,
reasonable office space, furniture, reasonably secure storage space and
equipment staging facilities, office supplies, telephone service, office support
services (including security and janitorial), coordination of Customer Facility
access security requirements and administrative support to be used by AIGT in
support of the Services. Customer shall provide AIGT with reasonable and safe
access at all reasonable times required by AIGT in support of the Services, to
such Customer Facility. If access is unreasonably denied or delayed, AIGT shall
not be liable to Customer for any negative impact on the Services or Service
Levels that is caused by or is the direct result of such denial or delay of
access to the Customer Facility. Customer shall ensure that the Customer
Facility provides a safe working environment, including
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compliance with any Applicable Laws. AIGT'S use of any Customer Facility does
not constitute, create or vest any leasehold interest, easement or other
property right of any nature and nothing contained herein shall limit Customer's
right to access, operate and use any Customer Facility as it deems necessary or
appropriate in its sole discretion.
(b) AIGT Equipment at Customer's Facility. Customer shall maintain all
Equipment (if any) owned, rented or leased by AIGT that is located on Customer's
premises in a room to which access may be obtained only through a key or
computerized card-access security system and to which only those Customer
employees who are responsible for the operation or maintenance of such Equipment
and any AIGT-authorized personnel shall have access.
4.3 CONDUCT WHILE ON OTHER PARTY'S PREMISES.
Each party shall exercise due care and diligence to prevent any injury to
persons or damage to property while on the other party's premises. The operation
of vehicles by either party's personnel on the other party's property shall
conform to posted and other regulations and safe driving practices located at
the other party's property. Vehicular accidents on either party's property and
involving any of the other party's personnel shall be reported promptly to the
appropriate personnel of both parties. Each party agrees that it and its
Subcontractors, and their respective employees, agents, and representatives
(including all AIGT and Customer personnel), shall at all times comply with, and
shall at no time take action that results in such party being in violation of,
any federal, state, or local law, ordinance, regulation, or rule, including
those regarding use or possession of contraband and those regarding
confidentiality, privacy (subject to each party's obligation to inform the other
party of all such laws, ordinances, regulations and rules), security, or
exportation.
5. SOFTWARE, EQUIPMENT AND THIRD PARTY CONTRACTS.
5.1 SOFTWARE.
(a) With respect to the software used by AIGT to provide the Services,
other than the AIGT Software: (a) Customer hereby grants to AIGT, for AIGT'S
provision of the Services, the same rights to access and use such software that
Customer has with respect to such software and (b) Customer represents and
warrants to the best of its knowledge and belief, that (i) Customer and AIGT
shall have the rights necessary to access and use such software in the manner
contemplated by this Agreement, (ii) such software shall not include or
incorporate or require use of any "open source" software or other materials, and
(iii) Customer will not provide AIGT with any software that Customer knows or
should have reason to know contains any virus or destructive element. If any
virus or destructive element is found in or furnished with any content or
software, Customer will use its commercially reasonable efforts, upon learning
that such a situation exists, to eliminate the virus or destructive element.
Customer will notify AIGT as to the existence of any such virus or destructive
element immediately upon discovery thereof, and AIGT will have the right to take
any steps it deems appropriate to eliminate the virus or destructive element
from AIGT's network, in which case Customer shall reimburse AIGT for AIGT's
reasonable costs.
5.2 EQUIPMENT.
(a) Rights. With respect to the Customer Equipment used by AIGT to provide
the Services: (i) Customer hereby warrants to AIGT that to the best of its
knowledge and belief, Customer has all rights with regard to such Customer
Equipment that are necessary in order for the Customer Equipment to be lawfully
used by AIGT in providing the Services hereunder; (ii) Customer grants to AIGT,
for AIGT's provision of the Services, the same rights to access and use such
Customer Equipment that Customer has with respect to such Customer Equipment and
(ii) Customer represents and warrants that to the best of its knowledge and
belief Customer and AIGT shall have the rights necessary to access and use such
Customer Equipment in the manner contemplated by this Agreement.
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(b) Maintenance Plan. Customer is solely responsible and liable, subject to
Section 5.2(c), for maintaining Customer Equipment.
(c) Damage. Customer is responsible for damage to Equipment or other
property owned, leased, or rented by AIGT that is approved by Customer to be
located at Customer's Facility to (a) the extent such damage is caused by the
gross negligence or willful misconduct of Customer, its employees or
Subcontractors, or (b) the extent such damage is caused by or is the result of
Customer failing to permit AIGT, its employees, or Subcontractors reasonable
access to Customer's Facility (pursuant to the terms set forth in Section 4.2(a)
and Section 4.3 of this Agreement) to facilitate maintenance of AIGT Equipment,
or other property owned, leased or rented by AIGT, located at Customer's
Facility to provide the Services. AIGT is responsible for damage to Customer
Equipment or other property owned, leased, or rented by Customer that is
approved by AIGT to be located at AIGT'S Facility to (x) the extent such damage
is caused by the gross negligence or willful misconduct of AIGT, its employees
or Subcontractors, or (y) the extent such damage is caused by or is the result
of AIGT failing to permit Customer, its employees, or Subcontractors reasonable
access to AIGT Facility (pursuant to the terms set forth in Section 4.1(b) and
Section 4.3 of this Agreement) to facilitate maintenance of Customer Equipment,
or other property owned, leased or rented by Customer, located at AIGT Facility.
Subject to the foregoing, neither AIGT nor Customer is responsible or liable for
damage to or loss of any Equipment of, or other property owned, leased or rented
by the other party that is caused by a failure of such party, its employees or
Subcontractors to maintain such Equipment. Each party shall report potential or
actual operational issues of which it becomes aware to the other party in a
timely manner.
(d) Disposition of Equipment. Upon termination or expiration of this
Agreement, AIGT shall disconnect the Customer Equipment, if any, located at the
AIGT Facility, and make it available for Customer's retrieval at the AIGT
Facility during regular business hours. If Customer fails to retrieve its
Equipment within twenty (20) Business Days of termination or expiration, the
parties agree that AIGT will deliver such Customer Equipment to Customer at its
address set forth in this Agreement or such other address provided in writing by
Customer, and Customer shall be obligated to accept such delivery and pay for
the delivery at its sole expense.
6. FEES
As the sole and entire financial consideration for all of the Services to be
performed by AIGT and for all of the other tasks, services, and obligations of
AIGT under this Agreement, Customer shall pay to AIGT the fees described in
Schedule B. With respect to Services, AIGT shall invoice Customer for the Fees
on a monthly basis. Payment of all undisputed invoiced amounts shall be due and
payable by Customer to AIGT on the date that is thirty (30) days after
Customer's receipt of the applicable invoice.
6.1 TAXES
The Fees do not include sales, use, excise, occupation, privilege, value-added
or similar taxes ("TAXES"). Consequently, in addition to the Fees specified
herein, Customer shall pay, or reimburse AIGT for, the gross amount of any such
Taxes applicable to the price, sale, or use of any materials or other tangible
items furnished by AIGT to Customer hereunder (but specifically excluding any
taxes based on the Equipment provided by AIGT or on the net income of AIGT
hereunder) that is actually paid by AIGT or for which AIGT is otherwise liable
and can provide Customer with written documentation of such liability. AIGT
shall promptly and fully cooperate with Customer to minimize such tax liability
to the extent legally permissible. AIGT'S invoices shall separately state the
amounts of any Taxes that AIGT is collecting from Customer in accordance
herewith.
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7. TERMINATION.
7.1 TERMINATION FOR CONVENIENCE OR BREACH
(a) Customer may terminate this Agreement (i) at any time on thirty (30)
days prior written notice or (ii) immediately in the event that AIGT breaches a
material term of this Agreement and fails to cure such breach within thirty (30)
days after receiving written notice from Customer reasonably identifying and
describing such breach, provided that if such breach is incapable of being cured
within 30 days after receipt of a default notice and AIGT is diligently
attempting to cure such breach and provides Customer with written notice
reasonably identifying and describing the remedial action(s) it is taking to
cure such breach, the cure period under this Section 7.1(a) shall be extended
from 30 days to 60 days. Such 30 day or 60 day cure period is referred to herein
as the "CURE PERIOD." In the case of termination of this Agreement due to a
breach set forth in Section 7.1(a)(ii), such termination shall occur on the date
the Cure Period has ended, unless such Cure Period is further extended by
Customer, in its sole discretion, by written notice on or prior to the date such
Cure Period was to have ended.
(b) AIGT may terminate this Agreement (i) at any time on thirty (30) days
prior written notice (provided that AIGT may not exercise its termination right
or send any prior written notice of termination under this Section 7.1 (b) (i)
until 90 days after the Effective Date) or (ii) for nonpayment of Fees by
Customer, but only in the event that Customer fails to pay any valid and
undisputed invoice within thirty (30) days after receipt thereof and then only
after AIGT provides Customer with written notice of such overdue invoice
followed by an additional sixty (60) day period in which Customer fails to cure
such nonpayment.
7.2 TRANSFER ASSISTANCE
In connection with any termination or expiration of this Agreement, AIGT shall
cooperate fully with Customer and its designated Third Party successor to AIGT,
and shall take all actions reasonably necessary or reasonably requested by
Customer, to accomplish a prompt, smooth, and complete transition of the
responsibility for provision of the Services from AIGT to Customer, or to any
replacement of AIGT designated by Customer, without any material adverse effect
upon the Services. All such termination assistance services performed by AIGT
pursuant to this Section 7.2 (the "TRANSFER ASSISTANCE") shall be performed by
AIGT at the then current rates of AIGT for such services.
AIGT shall not be required to perform any of its obligations under this Section
7.2 with respect to a successor vendor if such vendor does not enter into a
confidentiality agreement with Customer, which agreement (a) protects the
confidential information of AIGT consistent with the terms of this Agreement and
(b) has been approved in advance by AIGT, such approval not to be unreasonably
withheld or delayed. Customer shall be obligated to indemnify AIGT against
Losses (as defined in Section 12.1(a)) suffered by AIGT resulting from, arising
out of or relating to any breach of such confidentiality agreement by such
successor vendor as if effected by Customer.
8. CONFIDENTIAL INFORMATION.
8.1 DEFINITION OF CONFIDENTIAL INFORMATION
Certain confidential information of or about each party may be furnished or
disclosed to, or created or used by, the other party in connection with the
parties' performance of their respective obligations under this Agreement. As
used in this Agreement, the "CONFIDENTIAL INFORMATION" of each party means: (a)
technical information, formulas, materials, data, reports, programs,
documentation, diagrams, ideas, concepts, techniques, processes, inventions,
knowledge, know-how, and trade secrets that are developed, created, or acquired
by such party or its Affiliates, whether in tangible or intangible form, in any
specific form or media, or disclosed orally; (b) information and data relating
to or describing such party's or its Affiliates' practices, personnel, agents,
subcontractors, clients, customers, suppliers, products, services,
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orders, business, financials, costs, or margins that is not generally known by
others; and (c) records, data, information and other materials in the possession
or control of the other party, or created, collected, processed, handled,
stored, transmitted, or received, in any form or media, directly or indirectly
related to the Services provided under this Agreement, the disclosure of which
is prohibited by any Applicable Law.
8.2 EXCLUSIONS AND EXCEPTIONS.
The obligations of confidentiality and non-disclosure imposed under this Section
8 shall not apply to, and the term "Confidential Information" shall not include,
information that a party can demonstrate was: (i) published or otherwise made a
part of the public domain after disclosure to such party, through no fault of
such party and no breach of this Agreement; (ii) in the public domain at the
time of disclosure to such party, through no fault of such party; (iii) already
in the possession of such party, without such party being under any obligations
of confidentiality with respect thereto, at the time of disclosure by the other
party; (iv) received or obtained by such party, without such party assuming any
obligations of confidentiality with respect thereto, from a Third Party who had
a lawful right to disclose such information to such party; or (v) independently
developed by such party without reference to Confidential Information of the
other party and not in connection with the provision or use of the Services.
8.3 PROTECTION OF CONFIDENTIAL INFORMATION.
Each party shall, at all times (subject to Customer's duty to inform AIGT of any
specific actions AIGT must take with respect to protecting Customer Data): (i)
maintain the confidentiality of the Confidential Information of the other party;
(ii) take reasonable and appropriate steps to prevent the use, disclosure,
dissemination, or copying of the Confidential Information of the other party
other than as necessary for such party to perform its obligations under this
Agreement; (iii) use the same care to prevent disclosure of the Confidential
Information of the other party to third parties as it employs to avoid
disclosure, publication, or dissemination of its own Confidential Information of
a similar nature, but in no event less than a reasonable standard of care; (iv)
use the Confidential Information of the other party solely as necessary and
appropriate for the purpose of performing its obligations under this Agreement;
(vi) not acquire any express or implied right or license to any intellectual
property or other proprietary right in or to, or assert any lien against, the
Confidential Information of the other party; (vii) use commercially reasonable
efforts to inform its employees, agents, and Subcontractors who perform duties
with respect to this Agreement about the restrictions with regard to
Confidential Information set forth in this Section 8; and (viii) pursuant to
Section 8.5 (i), notify the other party as soon as possible in the event of any
use, disclosure, or loss of Confidential Information of or about such other
party other than as permitted by this Agreement. The provisions of this Section
8 are in addition to, and not in replacement of, any protections afforded either
party's trade secrets by Applicable Law, and nothing in this Agreement shall
reduce or restrict any protections provided by Applicable Law to the trade
secrets of either party and its Affiliates.
8.4 PERMITTED DISCLOSURES.
Notwithstanding the restrictions of this Section 8, each party may disclose
Confidential Information of the other party to its employees, agents, and
Subcontractors who have: (i) a bona fide need to know such Confidential
Information in order to perform their assigned duties; and (ii) a legal duty to
protect the Confidential Information that is substantially equivalent to the
obligations of confidentiality imposed upon such party hereunder. A party
receiving Confidential Information of the other party assumes full
responsibility (subject to Customer's duty to inform AIGT of any specific
actions AIGT must take with respect to protecting Customer Data) for the acts or
omissions of its Subcontractors and employees with respect to such Confidential
Information. AIGT and Customer may each disclose the existence of this Agreement
(but not the terms thereof) in promotional and advertising materials.
Notwithstanding anything to the contrary contained elsewhere in this Agreement,
either party may disclose the existence of this
11
Agreement, or the terms of this Agreement, to the extent such disclosure is
required to enforce the terms of this Agreement or the rights of such party
hereunder, and to the extent that such party deems it necessary or appropriate,
in its sole discretion, to enable, permit, or facilitate filings with
governmental agencies, including the Securities and Exchange Commission, that
such party is required or reasonably deems it appropriate to make.
8.5 REQUIRED DISCLOSURES.
Either party may disclose Confidential Information of the other party to the
extent disclosure is required by law or by order of a court or governmental
agency. The party that is subject to such law or order shall use all
commercially reasonable efforts to: (i) maintain the confidentiality of the
Confidential Information by giving (where permitted by law to do so) the party
who owns such Confidential Information (or to whom such Confidential Information
otherwise pertains) prompt notice in order that it have every reasonable
opportunity to intercede in such process to contest such disclosure; and (ii)
cooperate with such other party to protect the confidentiality of such
Confidential Information. The party who owns such Confidential Information (or
to whom such Confidential Information otherwise pertains) shall have the right
to seek, with the other party's reasonable assistance and cooperation, a
protective order or otherwise protect the confidentiality of such Confidential
Information.
8.6 INJUNCTIVE RELIEF.
Each party acknowledges and agrees that any breach of any provision of this
Section 8 by it, or by its personnel, agents, or subcontractors, may cause
immediate and irreparable injury to the other party that cannot be adequately
compensated for in damages, and that, in the event of any such breach and in
addition to all other remedies available at law or in equity, the non-breaching
party shall be entitled to seek injunctive relief from any court of competent
jurisdiction, without bond or other security.
8.7 RETURN OF CONFIDENTIAL INFORMATION.
Upon either termination or expiration of this Agreement or the written request
of the other party, each party shall promptly return or destroy, at the other
party's option, the other party's Confidential Information and all copies
thereof. Notwithstanding anything to the contrary in this Section 8.7 to the
extent and for so long as such return or destruction is infeasible (e.g., with
regard to Confidential Information of the other party retained in the memories
of a party's employees), the protections of this Section 8 shall continue to
apply to such Confidential Information. In the event the return or destruction
of Confidential Information of the other party is infeasible, the party unable
to make such return or destruction shall promptly notify the other party in
writing, indicating the reason for such inability, the expected duration, and
the specific Confidential Information to which such inability applies. Each
party may retain any copies of the other party's Confidential Information
necessary to comply with applicable laws and regulations.
8.8 CONFIDENTIALITY AGREEMENTS.
Each party shall require each of its employees, agents, and Subcontractors to
whom Confidential Information of or about the other party is disclosed under
this Agreement to be subject to the terms of a confidentiality agreement,
written or otherwise, that provides no less degree of protection for the
Confidential Information of or about the other party than is provided for under
this Agreement.
8.9 DURATION.
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The obligations of the parties with respect to Confidential Information, as are
set forth in this Section 8, shall remain in force and effect at all times
during the Term and: (i) with respect to Confidential Information that
constitutes a trade secret under Applicable Law, for so long as such trade
secret status is maintained; and (ii) with respect to Confidential Information
that does not constitute a trade secret, for five (5) years after termination or
expiration of the Term (or for the maximum amount of time permitted under
Applicable Law, if shorter than five (5) years).
9. DATA PROTECTION.
9.1 GENERAL. AIGT and Customer are each responsible for complying with their
respective obligations under Applicable Law, including state and federal data
protection laws, rules and regulations governing Customer Data and other data
(such as the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and the Health Insurance Portability
and Accountability Act of 1996). Customer shall identify and monitor all such
data protection laws, rules and regulations and inform AIGT, in writing, if
there are any such laws with which AIGT must comply in processing Customer Data,
or in performing any other Services for Customer hereunder. Customer's
reasonable and lawful directions to AIGT for processing Customer Data or
providing other Services hereunder shall be set provided to AIGT in writing and
AIGT shall perform such Services in compliance with Customer's directions.
Customer shall remain solely responsible and liable for any actions AIGT takes
in compliance with Customer's directions, including Customer's directions for
processing Customer Data and other data, and any direct consequences flowing
therefrom. Each party acknowledges that it is not investigating the steps the
other party is taking to comply with Applicable Law. Nothing in this Agreement
prevents AIGT or Customer from taking the steps it deems necessary to comply
with Applicable Law.
9.2 SECURITY.
AIGT shall establish and maintain reasonable safeguards against, and use its
commercially reasonable efforts to prevent, the unintended disclosure,
destruction, loss or alteration of Customer Data and data files that may be in
AIGT'S possession, but Customer shall be primarily responsible for storing all
Customer Data and establishing and maintaining such reasonable safeguards
against the unintended disclosure, destruction, loss or alteration of Customer
Data as may be necessary, including, but not limited to firewalls, passwords and
encryption or similar controls. Customer acknowledges it is solely responsible
for protecting against any threats to the security, confidentiality and
integrity of Customer Data and determining that the security measures undertaken
in connection with the Services constitute appropriate technical and
organizational measures to protect Customer Data as required by Applicable Law.
AIGT reserves the right to monitor its network or systems electronically and to
access and disclose any information (subject to Section 8) as required by any
Applicable Law operate its systems properly, to protect itself or its customers,
or for any other reason it in good xxxxx xxxxx necessary. AIGT and Customer will
fully cooperate with law enforcement authorities in investigating suspected
lawbreakers and each reserves the right to report to law enforcement any
suspected illegal activity.
9.3 USE; DISCLOSURE. If under Applicable Law, Customer is required to provide
information to an individual regarding Customer Data, AIGT shall reasonably
cooperate with Customer in providing such information, provided Customer shall
pay AIGT reasonable fees for such assistance. Upon AIGT'S or Customer's
reasonable written request, the other party shall provide the requesting party
with such information that it has regarding Customer Data and its processing as
is necessary to enable the requesting party to comply with its obligations under
this Section 9.3 and Applicable Law (including the applicable data protection
laws, rules and regulations).
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10. RECORD KEEPING AND AUDIT RIGHTS.
10.1 RECORD KEEPING.
AIGT shall maintain complete and accurate records and books of account with
respect to this Agreement utilizing generally accepted accounting principles
("GAAP"), consistently applied and complying, and not preventing Customer from
complying, in all respects with all Applicable Laws (including the
Xxxxxxxx-Xxxxx Act of 2002 (Pub. L. No. 107-204)). Such records and books of
account of AIGT'S business shall be maintained by AIGT at a principal business
office and Customer, upon prior written notice, may examine and make extracts of
information and copy parts thereof solely to the extent necessary for Customer
to verify the accuracy of AIGT'S invoices or AIGT'S performance under this
Agreement.
10.2 RETENTION / AUDITS.
AIGT shall retain for a period of five (5) years after AIGT'S receipt therof, or
such longer period as may be required by laws or regulations applicable to AIGT,
all records and information required to verify amounts invoiced under this
Agreement and AIGT'S compliance with the terms of this Agreement, and Applicable
Laws, in its performance hereunder. Customer, or, subject to the execution of
appropriate confidentiality agreements, the Third Party auditors (from a
regional or national certified public accounting firm) designated by Customer,
shall be granted access to the aforesaid records solely for the purpose of
verifying or auditing the accuracy of AIGT'S invoicing and AIGT'S compliance
with the terms and conditions of this Agreement and laws and regulations
applicable to AIGT. All such audits shall be conducted during normal business
hours, with reasonable advance notice (in any case, not less than 10 Business
Days), and shall take place no more than once per calendar year and,
notwithstanding anything to the contrary elsewhere in this Agreement, shall not
include access to proprietary or Confidential Information except to the extent
necessary to confirm the accuracy of AIGT'S invoices or the extent of AIGT'S
compliance herewith (but in no case including any information related to costs
incurred by AIGT in connection with the Services). Nevertheless, subject to such
limitations, during such hours and with such advance notice, AIGT shall grant
Customer and its representatives full and complete access to all of the AIGT
Personnel and to the relevant portion of AIGT'S books, records, documents, data,
or information, as they relate to amounts invoiced, invoices submitted, or the
extent of AIGT'S compliance with the terms this Agreement and Applicable Laws,
or as such access to personnel, books, records, documents, data or information
may be required in order for Customer to ascertain any facts relative to the
accuracy of AIGT'S invoicing hereunder, including facts with regard to
verification of all Fees (and all components and calculations thereof, but in no
case including any information related to costs incurred by AIGT in connection
with the Services). In the event that any such verification or audit reveals a
failure by AIGT to comply with the terms hereof, or with laws or regulations
applicable to AIGT, and performance hereunder is ongoing, then AIGT shall
promptly and fully correct such failure to comply and any effects thereof.
11. REPRESENTATIONS AND WARRANTIES.
11.1 PREPARATION FOR PERFORMANCE.
AIGT represents that: (i) it is capable in all respects of providing, and it
shall provide, the Services in accordance with this Agreement; (ii) it has had
sufficient opportunity to inspect all material components, workings,
capabilities, procedures, and capacities of Customer's networks and software
directly related to the provision of the Services, and to review Customer's
related business processes, as necessary to analyze Customer's requirements in
connection therewith; and (iii) it understands the nature, location, and scope
of work to be performed hereunder and is not relying on any representations or
promises of Customer except those, if any, contained in this Agreement.
11.2 AIGT AUTHORIZATIONS AND APPROVALS.
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AIGT represents that: (i) it is a corporation duly formed and in good standing
under the laws of the State of New Hampshire; (ii) it is qualified and
registered to transact business in all locations where the performance of its
obligations hereunder would require such qualification; (iii) it has all
necessary rights, powers, and authority to enter into and to fulfill all of its
obligations under this Agreement, (iv) the execution, delivery, and performance
of this Agreement by AIGT have been duly authorized by all necessary corporate
action; (v) the execution and performance of this Agreement by AIGT shall not
violate any domestic law, statute, or regulation applicable to AIGT, and shall
not breach any agreement, covenant, court order, judgment, or decree to which
AIGT is a party or by which it is bound; (vi) it has, and agrees that it shall
maintain in effect, all governmental licenses and permits necessary for it to
provide the Services as contemplated by this Agreement; and (vii) it owns or
leases, and agrees that it shall own or lease, or have the right to use, free
and clear of all liens and encumbrances, other than lessors' interests, or
security interests of AIGT'S lenders, appropriate right, title, or interest in
and to the Equipment provided by AIGT that AIGT intends to use or uses to
provide the Services in accordance herewith (except with regard to any resources
provided by Customer).
11.3 COMPLIANCE WITH LAWS.
Subject to Customer's duty to inform AIGT of any specific actions AIGT must take
with respect to protecting Customer Data, each party warrants that, in
performing and receiving the Services hereunder, as the case may be, such party
shall comply, and shall not prevent the other party or its Affiliates from
complying, with all Applicable Laws of any relevant jurisdiction.
11.4 CUSTOMER AUTHORIZATIONS AND APPROVALS.
AWAC represents that: (i) it is a corporation duly formed and in good standing
under the laws of Bermuda; (ii) it is qualified and registered to transact
business in all locations where the performance of its obligations hereunder
would require such qualification; (iii) it has all necessary rights, powers, and
authority to enter into, and to fulfill all of its obligations, under this
Agreement, (iv) the execution, delivery, and performance of this Agreement by
AWAC have been duly authorized by all necessary corporate action; and (v) the
execution and performance of this Agreement by AWAC shall not violate any
domestic law, statute, or regulation applicable to AWAC, and shall not breach
any agreement, covenant, court order, judgment, or decree to which AWAC is a
party or by which it is bound.
11.5 DISCLAIMER OF WARRANTIES.
NEITHER AIGT NOR CUSTOMER MAKES ANY WARRANTIES OTHER THAN THOSE EXPRESSLY
CONTAINED IN THIS AGREEMENT. EACH OF THE PARTIES HERETO EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES WITH RESPECT TO MERCHANTABILITY.
15
12. INDEMNIFICATION.
12.1 BY AIGT.
(a) Bodily Injury and Property Damage
AIGT shall indemnify, defend, and hold harmless Customer and its Affiliates, and
the respective officers, directors, employees, agents, and representatives of
Customer and its Affiliates (collectively, "CUSTOMER'S INDEMNITEES") from and
against all Losses (as defined below) arising out of any claims or demands
brought by any Third Party alleging bodily injury to, or death of, persons, or
loss of or damage to tangible or real property, to the extent that such injury
or damage arises from physical acts or omissions that constitute negligence,
fraud, willful misconduct, or violations of law by AIGT or its Subcontractors,
or the respective employees, agents, and representatives of AIGT and its
Subcontractors. As used in this Agreement, "LOSSES" means: (i) amounts actually
paid, or due and payable, to Third Parties by the applicable Indemnities
(including judgments, settlements, awards, liabilities, losses, damages,
interest, and civil penalties); (ii) reasonable attorneys' fees and court costs
reasonably incurred by the applicable Indemnitees, in the case of litigation or
arbitration; and (iii) out-of-pocket expenses reasonably incurred by the
applicable Indemnitees in connection with the investigation, defense,
litigation, or settlement of the applicable claims or demands.
(b) Infringement
AIGT shall defend or, at its option, settle, and shall indemnify and hold
harmless, Customer's Indemnitees from and against all Losses arising out of any
claim, action, or demand brought by any third party against any of Customer's
Indemnitees for actual or alleged infringement of any United States patent,
United States trademark, United States copyright, or other United States
intellectual property or proprietary right (including misappropriation of trade
secrets) to the extent based upon the Services or any hardware, software,
technology, products, techniques, methods, materials, business processes, or
data used by AIGT (excluding any hardware, software, technology, products,
techniques, methods, materials, business processes, or data owned or provided by
Customer) in providing the Services hereunder or provided by AIGT to Customer in
connection herewith (any such claim, action, or demand, a "CUSTOMER INFRINGEMENT
CLAIM"). In the event of a Customer Infringement Claim, AIGT may, in its
reasonable discretion, either procure a license to enable Customer to continue
to use such Services, or other technology or materials, or develop or obtain,
and provide Customer with, a non-infringing substitute reasonably acceptable to
Customer. Notwithstanding anything to the contrary in this Section 12.1(b), AIGT
shall have no obligation with respect to indemnification of Customer's
Indemnitees regarding any claim or action to the extent that it is based upon:
(i) a modification by Customer of the Services or other technology or materials
provided by AIGT hereunder, that was not intended (as communicated by AIGT in
writing) or otherwise approved by AIGT; (ii) Customer's operation or use of the
Services or any other technology or materials provided by AIGT hereunder, in
combination with apparatus, data, or programs neither furnished nor approved by
AIGT; or (iii) the use by Customer of the Services or any other technology or
materials provided by AIGT hereunder, other than in accordance with Customer's
applicable licenses or rights, as set forth in this Agreement.
(c) Third-Party Services
AIGT shall defend, indemnify, and hold Customer's Indemnitees harmless from and
against all Losses related to claims by Third Parties (including any AIGT
personnel and any of AIGT'S Subcontractors or their respective employees) based
upon an alleged breach by AIGT of any agreement with such Third Party (e.g., an
employment agreement or a subcontracting agreement).
12.2 BY CUSTOMER.
(a) Bodily Injury and Property Damage
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Customer shall indemnify, defend, and hold harmless AIGTand its Affiliates, and
the respective officers, directors, employees, agents, and representatives of
AIGT and its Affiliates (collectively, "AIGT'S INDEMNITEES") from and against
all Losses arising out of any claims or demands brought by any Third Party
alleging bodily injury to, or death of, persons, or loss of or damage to
tangible or real property, to the extent that such injury or damage arises from
physical acts or omissions that constitute negligence, fraud, willful
misconduct, or violations of law by Customer or its Subcontractors, or the
respective employees, agents, and representatives of Customer and its
Subcontractors.
(b) Infringement
Customer shall defend or, at its option, settle, and shall indemnify and hold
harmless, AIGT'S Indemnitees from and against all Losses arising out of any
claim, action, or demand brought by any Third Party against any of AIGT'S
Indemnitees for actual or alleged infringement of any United States patent,
United States trademark, United States copyright, or other United States
intellectual property or proprietary right (including misappropriation of trade
secrets) to the extent based upon any hardware, software, technology, products,
techniques, methods, materials, business processes, or data provided by Customer
to AIGT for use by AIGT in providing the Services hereunder (excluding the
Services, hardware, software, technology, products, techniques, methods,
materials, business processes, or data owned or provided by AIGT) or provided by
Customer to AIGT in connection herewith (any such claim, action, or demand, an
"AIGT INFRINGEMENT CLAIM"). In the event of an AIGT Infringement Claim, Customer
may, in its reasonable discretion, either procure a license to enable AIGT to
continue to use such hardware, software, technology, products, techniques,
methods, materials, business processes, or data, or develop or obtain, and
provide AIGT with, a non-infringing substitute reasonably acceptable to AIGT.
Notwithstanding anything to the contrary in this Section12.2(b), Customer shall
have no obligation with respect to indemnification of AIGT'S Indemnitees
regarding any claim or action to the extent that it is based upon: (i) a
modification by AIGT of the technology or materials provided by Customer
hereunder, that was not intended (as communicated by Customer in writing) or
otherwise approved in writing by Customer; (ii) AIGT'S operation or use of the
technology or materials provided by Customer hereunder, in combination with
apparatus, data, or programs neither furnished nor approved in writing by
Customer; or (iii) the use by AIGT of the technology or materials provided by
Customer hereunder, other than in accordance with AIGT'S applicable licenses or
rights, as set forth in this Agreement.
(c) Third-Party Services
Customer shall defend, indemnify, and hold AIGT'S Indemnitees harmless from and
against all Losses related to claims by Third Parties (including any Customer
personnel and any of Customer's Subcontractors or their respective employees)
based upon any alleged breach by Customer of any agreement with such Third Party
(e.g., an employment agreement or subcontracting agreement).
13. LIMITATION OF LIABILITY.
13.1 MAXIMUM LIABILITY OF AIGT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 13, AIGT'S MAXIMUM,
CUMULATIVE, AND AGGREGATE MONETARY LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING
OUT OF AIGT'S PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR OF ANY OTHER WORK
OR OBLIGATIONS SET FORTH IN THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL IN NO EVENT
EXCEED THE AMOUNT OF FEES RECEIVED FROM CUSTOMER FOR THE SERVICES PROVIDED
HEREUNDER IN THE TWELVE MONTH PERIOD PRIOR TO THE CLAIM.
17
13.2 EXCLUSION OF INDIRECT DAMAGES.
EXCEPT FOR CLAIMS OF THE TYPES DESCRIBED IN SECTION 13.3, EACH PARTY AGREES NOT
TO ASSERT CLAIMS OR DEMANDS AGAINST THE OTHER PARTY FOR, AND NEITHER PARTY SHALL
BE LIABLE TO THE OTHER PARTY FOR, ANY SPECIAL, INCIDENTAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES. THE LIMITATION ON THE TYPES OF RECOVERABLE DAMAGES SET
FORTH IN THIS SECTION 13.2 SHALL APPLY IRRESPECTIVE OF WHETHER THE POSSIBILITY
OF ANY SUCH DAMAGES WAS KNOWN OR HAD BEEN DISCLOSED TO A PARTY IN ADVANCE, OR
COULD HAVE REASONABLY BEEN FORESEEN BY SUCH PARTY, AND NOTWITHSTANDING THE FORM
IN WHICH ANY CLAIM OR ACTION IS BROUGHT.
13.3 EXCEPTIONS.
THE LIMITATIONS SET FORTH ABOVE IN THIS SECTION 13 UPON THE TYPES AND AMOUNTS OF
EACH PARTY'S LIABILITY, AND THE EXCLUSIONS IN THIS SECTION 13 OF CERTAIN TYPES
OF DAMAGES, SHALL NOT APPLY TO: (i) CLAIMS SUBJECT TO (OR AMOUNTS PAYABLE
PURSUANT TO) INDEMNIFICATION, CLAIMS WITH RESPECT TO A BREACH OF ANY
CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN OR IN ANY CONFIDENTIALITY AGREEMENT
ENTERED INTO PURSUANT HERETO; (iii) CLAIMS FOR DAMAGES FOR BODILY INJURY
(INCLUDING DEATH) AND DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY;(iv) CLAIMS
FOR DAMAGES BASED UPON FRAUD OR THE WILLFUL MISCONDUCT OF A PARTY.
13.4 DISPUTE RESOLUTION.
(a) Dispute
If, during the Term, any issue, dispute, or controversy ("DISPUTE") arises
hereunder, then the designated representatives of AIGT and Customer (AIGT'S
Account Executive and Customer's Project Manager-AIGT, unless otherwise
designated) shall promptly confer and exert commercially reasonable efforts to
attempt to reach a reasonable and equitable resolution of such Dispute. If such
representatives fail to resolve such Dispute within five (5) Business Days after
such Dispute arises, the Dispute shall be referred promptly to the responsible
senior management of each party. If such Dispute is not resolved within five (5)
Business Days after such referral to senior management, each party shall
promptly make an appropriate member of its senior management team available
on-site at the location designated by Customer, and the parties shall exert all
commercially reasonable efforts to resolve such Dispute in good faith during
such meeting. Except with regard to any breach or alleged breach of Confidential
Information, or any other claim for which injunctive or other equitable relief
is sought, neither party shall seek any means of resolving any Dispute arising
in connection with this Agreement other than as described in this Section 13.4
before the end of the fifth (5th) Business Day after the first date on which one
party notified the other of the existence of the Dispute. Each party shall have
the right to include or involve in any discussions between or among the parties'
responsible senior management regarding such Dispute any Third Party having an
interest in such Dispute.
(b) Exceptions
Each party acknowledges that any breach of such party's obligations under
Section 8 (Confidential Information) may cause immediate and irreparable injury
to the other party that cannot be adequately compensated for in damages, and
that, in the event of any such breach, and in addition to all other remedies
available to it, the other party shall be entitled to seek injunctive or other
equitable relief from any court of competent jurisdiction, without bond or other
security.
(c) No Termination or Suspension of Services
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Notwithstanding anything to the contrary contained herein, and even if any
Dispute or other problem arises between the parties and regardless of whether or
not it requires at any time the use of the dispute resolution procedures
described above, in no event nor for any reason shall AIGT interrupt or suspend
or terminate the provision of Services to Customer or perform any action that
prevents, impedes, or reduces in any way the provision of Services or Customer's
ability to conduct its activities, unless: (i) authority to do so is granted by
Customer or conferred by a court of competent jurisdiction; or (ii) the Term of
this Agreement has been terminated in accordance with the terms hereof.
13.5 GOVERNING LAW; VENUE. This Agreement is to be construed in accordance with
and governed by the internal laws of the State of New York (as permitted by
Section 5-1401 of the New York General Obligations Law or any similar successor
provision) without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of New York to the rights and duties of the parties. Any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
commenced in a federal court in the Southern District of New York or in state
court in the County of New York, New York, and each party hereto irrevocably
submits to the exclusive jurisdiction and venue of any such court in any such
suit, action or proceeding. Except for actions for nonpayment, neither AIGT nor
Customer may bring a claim or action more than two (2) years after the cause of
action arose.
13.6 RESALE. Customer may not resell, remarket or make available to any Third
Party all or any portion of the Services.
13.7 INDEPENDENT CONTRACTOR.
The parties are and intend to be independent contractors with respect to each
other and all performance hereunder. No employee, agent, or other representative
of either party shall at any time be deemed to be under the control or authority
of the other party, or under the joint control of both parties. As between the
parties, each party shall be fully liable for all worker's compensation premiums
and liability and all federal, state, and local withholding taxes or charges
with respect to it and its Subcontractors, and their respective employees, and
each party agrees to hold the other party harmless from any claims brought
against the other party in respect thereto. By executing this Agreement, each
party acknowledges and agrees that it and its Subcontractors, and their
respective employees, shall not be considered as having an employee status with
the other party or as being entitled to participate in any of the other party's
employee benefit programs, including workers compensation and disability
insurance, group health and dental insurance, unemployment insurance, retirement
plans, and stock-based benefits or plans. Neither party shall act as an agent of
the other party in connection with this Agreement, nor shall either party be
authorized or entitled to enter into any agreements, or incur any obligations or
liability, on behalf of the other party. No form of joint employer, joint
venture, partnership, or similar relationship between the parties is intended or
hereby created. As an independent contractor, each party shall be solely
responsible for: (a) determining the means and methods for performing the
professional and/or technical services or performing its obligations described
herein and (b) persons employed by each party and engaged in the performance of
the specified work or performance of obligations hereunder, including
responsibility for all applicable employee-related tax, salary and benefit
programs, and each party further agrees to indemnify and hold the other party
harmless against any and all liability, claims, penalties, costs and taxes
related thereto. All of each party's activities hereunder will be at such
party's own risk and each party is hereby given notice of its responsibility for
arrangements to guard against physical, financial, and other risks, as
appropriate. The foregoing statement does not relieve either party of
responsibility or liability with respect to bodily injury or physical property
damage of either party's personnel or property to the extent caused by the other
party's negligence, acts, or omissions.
13.8 THIRD PARTY BENEFICIARIES. This Agreement does not create any benefits,
rights, claims, obligations or causes of action in, to, or on behalf of, any
person or entity (including, Third Parties or Subcontractors) other than to
Customer and AIGT.
19
13.9 SEVERABILITY.
If any provision of this Agreement is determined to be invalid or unenforceable
by a court of competent jurisdiction, that provision shall be deemed stricken
here from and the remainder of this Agreement shall continue in full force and
effect insofar as it remains a workable instrument to accomplish the intent and
purposes of the parties, as evidenced herein. In such an event, the parties
shall promptly replace the severed provision with the provision that will come
closest to reflecting the intention of the parties underlying the severed
provision but that is valid, legal, and enforceable.
13.10 NOTICES. All notices, consents, and approvals given by a party under this
Agreement shall be in writing and shall be delivered in person, or by facsimile,
electronic mail, first class or express mail, or overnight carrier, addressed as
follows:
IF TO CUSTOMER:
Allied World Assurance Company (Europe) Limited
0xx Xxxxx - Xxxxxxx Xxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxx 0, Xxxxxxx
Xxxxxxxx XX 12, Bermuda
Phone#: 000-000 0 000 0000
Fax: 000-000 0 000 0000
Email:xxxx.xxxx@xxxx.xxx
Attention: Xxxx X'Xxx
WITH A COPY TO:
Allied World Assurance Company, Ltd
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxx#: 000-000-0000
Fax: 000-000-0000
Email: Xxxxxx.Xxxxxx@xxxx.xxx
Attention: Xxxxxx X. Xxxxxx, Esq.
20
IF TO AIGT:
AIG Technologies, Inc.
0 Xxxxx Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone#:
Fax: 000-000-0000
Email:
Attention: President with a copy to:
AIG Technologies, Inc.
0 Xxxxx Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Phone#: 000-000-0000
Fax: 000-000-0000
Email:
Attention: Legal Department
Either party may designate a different or additional address or addressee for
the purposes of this Section 13.10 by providing the other party with notice in
accordance with this Section 13.10. Notice given in accordance with this Section
13.10 shall be deemed given when received, in the case of personal delivery or
delivery by mail or overnight carrier.
13.11 WAIVER.
Waiver by a party of any term or condition of this Agreement, or any breach or
default by the other party hereunder, shall only be made in writing and shall be
signed by an authorized representative of Customer and by an authorized
representative of AIGT. Any such waiver so duly signed shall be effective only
in the specific instance, and for the specific purpose, stated in such writing
and no waiver shall be deemed a waiver of any other term, condition, breach, or
default, irrespective of whether similar to that waived. No failure to exercise,
and no delay in exercising, on the part of either party, any right, power, or
privilege hereunder shall constitute a waiver thereof, nor will any party's
exercise of any right, power, or privilege hereunder preclude further exercise
of the same right or the exercise of any other right hereunder.
13.12 PUBLICITY.
Each party shall submit to the other all advertising, written promotional
materials, press releases, and other publicity matters relating to this
Agreement, or the execution hereof, that mention or contain the other party's
name or xxxx, or that contain language from which said name or xxxx xxx be
inferred or implied, and neither party shall publish or disclose any such
advertising, promotional materials, press releases, or publicity matters without
the prior written approval of the other party. Nevertheless, a party may
disclose the other party's name and the fact of the existence of this Agreement
whenever required by Applicable Law.
13.13 EMPLOYEE SOLICITATION.
During the period beginning with Effective Date and ending twelve (12) months
after any termination or expiration of this Agreement, each party, for itself
and its Affiliates, agrees that it shall not offer employment to, solicit, or
otherwise interfere with the employment of any employee of the other party or
its Affiliates except with the prior written consent of the other party.
Notwithstanding the immediately preceding
21
sentence, the parties acknowledge and agree that this Agreement will not
prohibit solicitations through general advertising or other publications of
general circulation by either party.
13.14 INTERPRETATION. In this Agreement, (a) all capitalized derivative forms of
defined terms and phrases have meanings that correspond to the defined terms and
phrases; (b) the words "include", "includes" or "including" mean "include
without limitation"; "includes without limitation"; and "including without
limitation," respectively; (c) the division of this Agreement into separate
Sections, subsections and Schedules, this Agreement's title and the insertion of
headings is for convenience of reference only and shall not affect the
construction or interpretation of the Agreement; (d) words or abbreviations that
have well known or trade meanings are used herein in accordance with their
recognized meanings; and (e) references to currency herein are references to
United States dollars unless otherwise explicitly stated. Any modification to
the terms of this Schedule A (Standard Terms and Conditions) contained in a
Schedule will be applicable only to such Schedule and will be effective for such
Schedule only if such modification expressly references the applicable Section
of this Schedule A (Standard Terms and Conditions) that is to be modified.
13.15 INTEGRATION AND AMENDMENT.
This Agreement, including the Schedules and Attachments attached hereto (each of
which Schedules and Attachments is incorporated herein by this reference),
contains the complete agreement between the parties with respect to the subject
matter hereof. All other previous and collateral agreements (including letters
of intent or purchase orders prepared by AIGT or Customer), representations,
warranties, promises, and conditions relating to the subject matter of this
Agreement are superseded by this Agreement. Any understanding, promise,
representation, warranty, or condition not incorporated into this Agreement
shall not be binding on either party. This Agreement may only be modified,
amended, or otherwise altered by a written agreement signed by an authorized
representative of AIGT and by an authorized representative of Customer.
22
SCHEDULE B (FEES AND SERVICES)
1. Messaging
AIG Technologies, Inc ("AIG Technologies") will provide email services for
intra-company and inter-company messaging for Allied World Assurance Company,
Ltd ("AWAC") employees, and associated disk space to store email. The services
are inclusive of all Messaging Service noted below.
Included in the product:
- email
- Calendar
- Task list
- Free/Busy Schedule
- 200 MB Storage
- Address list and Distribution lists
- Journaling mail
- Virus protection, SPAM filtering and content management
- Internet mail with 4 MB attachment
- Backup and recovery of mail system
- Backup and recovery of mail box
- Server hardware, OS and Messaging System Life Cycle Management
- Disaster Recovery (at data centers)
- Mail retention policy implementation
Service Levels
All Service Level Objectives that are relevant to this product
- System Availability (End-to-End as measured by Topper): 99%
- Overall Server Availability: 99.5%
- Mail Delivery Time: 3 seconds within the server; 10 seconds internal
to US
- Domestic and 20 seconds for international
- Return to Service Time: MS Exchange 5.5 (8 Hrs with contingency
server); MS
- Exchange2003: 90 Minutes, best efforts for sites without a contingency
server.
- Data Loss at system recovery: 24 hrs (RPO)
- Incident Resolution:
- Sev1 - 75.0% in 4 hrs
- Sev2 - 75.0% in 8 hrs
- Sev3 - 75.0% in 2 Business Days
Pricing
Unit of charge: email ID
Monthly Rate: $15.95
Current Volume: 227
2. NETWORK DEVICE MANAGEMENT
AIG Technologies provides 24x7 management and support of all OCIO approved
network devices which are owned and controlled by AIG Technologies
Included in the product:
- Incident Management
- Change Management
- Problem Management (Root Cause Analysis)
23
- Configuration Management
- Security Management
- Radius Authentication
- Network Management
- Capacity/Performance Management
- Hardware Maintenance Management
- Documentation Management
- Technology Management/Updates
Service Levels
All Service Level Objectives that are relevant to this product:
- Device Availability - 99.4%
- Hardware Maintenance and Repair - New hardware on-site within 4 hours.
- Incident Resolution:
- Sev1 - 75.0% in 4 hrs
- Sev2 - 75.0% in 8 hrs
- Sev3 - 75.0% in 2 Business Days
- Sev4 - 75.0% in 5 Business Days
Pricing
Unit of Charge: per device
Monthly Rate: $104.50
Current Volume: 17
AWAC -Boston 000 Xxxxxx Xx.
[Primary Cisco PIX-515 Firewall S/N:809233739
Secondary Cisco PIX-515 Firewall S/N:809302018
Dedicated Cisco 3550-48 Switch S/N:CAT09330DYK]
AWAC-NYC 000 Xxxxx Xx.
Primary Cisco PIX-515 Firewall S/N:809361883
Secondary Cisco PIX-515 Firewall S/N:809361854
Cisco 0000XX Xxxxxx X/X:XXX0000X00X
Cisco 4506 Switch S/N:FOX084002G0
AWAC-Bermuda Xxxxxxxx
Primary Cisco PIX-515 Firewall S/N:809245146
Secondary Cisco PIX-515 Firewall S/N:809230417
AWAC-Dublin
Dedicated Cisco 2950 Switch S/N fcz0942x03h
Dedicated Cisco 2950 Switch S/N foc0836s1gq
Primary Cisco Pix 515 Firewall S/N 88809272029
Secondary Cisco Pix 515 Firewall S/N 88809314637
AWAC- London
Dedicated Cisco 2950 Switch S/N FCZ0942Y03Y
Dedicated Cisco 2950 Switch S/N FCZ0942Y03R
Primary Cisco Pix 515 Firewall S/N 88809272012
Secondary Cisco Pix 515 Firewall S/N 88809314659
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3. NETWORK CIRCUIT MANAGEMENT
AIG Technologies provides 24x7 management and support of all data circuits,
which are owned by AIG Technologies. The service types include private lines,
frame relay, IP/VPN, and ISDN
Included in the product:
- Incident Management
- Change Management
- Problem Management (Root Cause Analysis)
- Configuration Management
- Security Management
- Network Management
- Capacity/Performance Management
- Documentation Management
- Vendor Management
Service Levels
All Service Level Objectives that are relevant to this product:
- Service Availability - 99.9% by site
- Latency / round trip delay- by site
- Circuit Upgrades
- Incident Resolution:
- Sev1 - 75.0% in 4 hrs
- Sev2 - 75.0% in 8 hrs
- Sev3 - 75.0% in 2 Business Days
- Sev4 - 75.0% in 5 Business Days
Pricing
Unit of Charge: per circuit for management and Core Allocation. AWAC is
responsible for carrier circuit costs for the circuits.
Monthly Rate: $209.00
Volume: - See table below
SHARED OR MANAGEMENT CORE ALLOCATION
SOURCE LOCATION DESTINATION LOCATION TYPE DEDICATED FEE/MONTH FEE/MONTH
--------------- -------------------- ---- --------- --------- ---------------
NYC Xxxxxxxxxx, XX X0 D $209 $1,544
Xxxxxxx Xxxxxxx 000 - XXXX X $209 $256
Bermuda Livingston, NJ T1 S(33%) $69 $510
Bermuda Livingston, NJ T1(2) S(33%) $69 $510
Xxxxxx Xxxxxxx X0 D $209 $2,000
London Xxxxxx X0 D $209 $0
Dublin Xxxxxxx X0 D $209 $2,000
Boston Livingston Shared DS3 S(minimal)* $0 $0
Boston Livingston Shared DS3(2) S(minimal)* $0 $0
* charges for Boston were not included because the Customer population is
such a small fraction of the total office that shares the circuit.
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4. VPN REMOTE ACCESS
The service provides remote access service capabilities for users in need of
access to the internal AWAC systems from a remote location. This service grants
the ability to connect remotely to E-Mail, Internet, and AWAC applications.
Access methods supported include dial-in or broadband (DSL or cable modem)
through the public Internet.
Included in the product:
- Incident Management
- Change Management
- Problem Management (Root Cause Analysis)
- Configuration Management
- Security Management
- Network Management
- Capacity/Performance Management
- Documentation Management
- Vendor Management
Service Levels
All Service Level Objectives that are relevant to this product:
- Service Availability - 99.9%
- Incident Resolution:
- Sev1 - 75.0% in 4 hrs
- Sev2 - 75.0% in 8 hrs
- Sev3 - 75.0% in 2 Business Days
- Sev4 - 75.0% in 5 Business Days
Pricing
Unit of Charge: per ID
Monthly Rate: See Below Chart
Volume: 47
AIGT Remote Access Services
(all rates quoted in US$)
User-id $5.50 per month
HOURLY RATE
FOR
BROADBAND HOURLY RATE TOLL-FREE
COUNTRY MONTHLY FEE FOR DIAL-UP DIAL UP
------- ----------- ----------- -----------
Australia $65.95 $ 5.72 $ 5.72
Canada $38.45 $ 1.87 $ 6.55
Eastern Europe $38.45 $ 6.88 $ 9.59
France $38.45 $ 5.63 $ 9.59
Germany $38.45 $ 5.63 $ 9.59
Hong Kong $38.45 $ 7.61 $ 7.61
Indonesia $38.45 $ 8.80 $ 8.80
Ireland $38.45 $ 5.63 $ 9.59
Japan $65.95 $12.16 $12.16
Korea $65.95 $12.16 $12.16
Malaysia $65.95 $ 8.03 $ 8.03
26
New Zealand $65.95 $ 5.72 $ 5.72
Philippines $65.95 $ 8.80 $ 8.80
Singapore $65.95 $ 7.43 $ 7.43
South Africa $49.45 $ 5.23 $ 5.23
Taiwan $65.95 $ 9.63 $ 9.63
Thailand $65.95 $ 5.78 $ 5.78
UK/Western Europe $38.45 $ 5.63 $ 9.59
US $38.45 $ 1.87 $ 6.55
** Broadband ids are charged the $5.50 monthly fee in addition to the
Broadband monthly fee
** Broadband fees vary by country based on AT&T charges in those countries
** All rates include appropriate VAT and taxes for each country
** Rates are subject to change if there are extraordinary changes to exchange
rates
Ids and usage are billed monthly based on actual usage for the prior month. All
active ids are billed, regardless of usage
27
SCHEDULE C (CUSTOMER EQUIPMENT)
As of the Effective Date, there is no Customer Equipment to be managed by AIGT.
As contemplated herein and on the cover page of this Agreement, this Schedule C
may be amended and restated by AIGT and Customer from time to time to include
any Customer Equipment to be managed by AIGT. Any amendments or restatements to
this Schedule C shall be signed by AIGT and Customer and shall form a part of
the Agreement.
28
SCHEDULE D (CUSTOMER FACILITIES)
ALLIED WORLD ASSURANCE HOLDINGS, LTD
ALLIED WORLD ASSURANCE COMPANY, LTD
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 12
Bermuda
ALLIED WORLD ASSURANCE COMPANY (REINSURANCE), LIMITED (London Branch)
ALLIED WORLD ASSURANCE COMPANY (EUROPE), LIMITED (LONDON BRANCH)
3rd Floor - West 00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, XX
ALLIED WORLD ASSURANCE COMPANY (REINSURANCE), LIMITED
ALLIED WORLD ASSURANCE COMPANY (EUROPE), LIMITED
0xx Xxxxx - Xxxxxxx Xxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxx 0, Xxxxxxx
ALLIED WORLD ASSURANCE COMPANY (U.S.) INC.
18th Floor, 000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000, X.X.X.
ALLIED WORLD ASSURANCE COMPANY (U.S.) INC. (NEW YORK BRANCH)
16th Floor, 000 Xxxxx Xxxxxx
XX, XX 00000, X.X.X.
ALLIED WORLD ASSURANCE COMPANY (U.S.) INC (SAN XXXXXXXXX XXXXXX)
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx 00000, X.X.X.
NEWMARKET UNDERWRITERS INSURANCE COMPANY (CHICAGO BRANCH)
Suite 3100, 000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000, X.X.X.
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SCHEDULE E (OPTIONAL SERVICES)
AIGT can provide any of the optional Messaging services for additional fees if
requested by Customer. Customer should submit a scope document outlining their
requirements. A solution and cost will be defined and added to this Agreement as
an addendum to Schedule B (Fees and Services). The additional services that are
available to the customer include:
- Public Folders
- Outlook Web Access (OWA)
- Mobile Messaging Device Support (RIM)
30
