THIRD PARTY ADMINISTRATION AND TRANSFER AGENT AGREEMENT
THIS AGREEMENT by and between [ ] TPA, Inc. (hereinafter called "[ ]"), a
Pennsylvania corporation, and The Travelers Insurance Company (hereinafter
called "Carrier"), A Connecticut corporation is effective as of April 1, 1999
("Effective Date").
WHEREAS, Carrier intends to issue certain life insurance policies and related
riders on the forms set forth in the attached Schedule A (hereinafter called
"Policies") through producers (hereinafter called "Producer") to employers or,
in certain instances, to other entities or persons, such as designated employees
of an employer (hereinafter called "Policy Owner"); and
WHEREAS, both [ ] and Carrier desire that [ ] provide Carrier, Producer and
Policy Owner with certain administrative and transfer agent services in
conjunction with the Policies; and
WHEREAS, Carrier wishes to ensure continuity of administrative and transfer
agent services in the event [ ] is, for any reason, no longer providing such
services;
NOW, THEREFORE, intending to be legally bound, the parties agree as follows:
1. DEVELOPMENT SERVICES
a. [ ] will customize its life insurance administrative systems so
[ ] will be able to provide the service responses specified in
the system specifications (hereinafter called "Administrative
System Scope Definitions") which shall be mutually agreed upon in
writing, attached thereto and incorporated herein no later than
the date referenced on Schedule A.
b. [ ] will provide Carrier with a written Project Plan for each
such customization that [ ] will make to its life insurance
administrative systems. The Project Plan will include the
mutually agreed upon target dates and terms to be met by Carrier
and [ ].
c. [ ] and Carrier understand and agree that achieving the target
dates is important. Both [ ] and Carrier will use their
reasonable best efforts to meet the target dates and acknowledge
that failure to meet target dates may introduce delays to
subsequent target dates.
1. ONGOING SERVICES
Subject to all other terms and conditions of this Agreement, [ ] will
provide the services set forth in this Section 2 for as long as this
Agreement is in force. The Development Services, Ongoing Services and
Modification Services set forth in this Agreement are hereinafter
collectively referred to as the "Services."
a. INSURANCE COVERAGE DOCUMENTS
[ ], on behalf of Carrier and upon its instruction, will issue
appropriate evidence of insurance to Policy Owner for each person
insured and maintain records of all policy transactions
(including, but not limited to premium payments, loans,
surrenders, and death claims) as set forth in the latest version
of the Administrative System Scope Definitions approved by
Carrier and [ ]. [ ] will have no authority to underwrite,
approve or effect insurance on behalf of Carrier or to collect
premium payments or any other funds due to Carrier, unless
otherwise previously agreed to in writing by Carrier and [ ]. [ ]
will promptly refer all inquiries to Carrier with respect to the
underwriting or purchase of policies. In administering the
policies, [ ] will only use forms that have been previously
approved in writing by Carrier.
b. COMPUTATION OF POLICY VALUES
For each person insured, [ ] will compute policy values as set
forth in the latest version of the Administrative System Scope
Definitions approved by Carrier and [ ].
c. REPORTING
[ ] will provide Carrier, Policy Owner and Producer with the
reports in accordance with the frequency, content, format, and
other requirements that are set forth in the latest version of
the Administrative System Scope Definitions approved by Carrier
and [ ].
d. RESPONSE TO INQUIRIES
[ ] will promptly respond to inquiries (e.g., policy values,
billing inquiries) as set forth in the latest version of the
Administrative System Specifications approved by Carrier and [ ].
For SEC registered products, [ ]'s responses will be limited to
those that the SEC authorizes a Transfer Agent to make.
e. TRAINING
[ ] will provide training at [ ]'s office for personnel of
Carrier in the operation of [ ]'s life insurance administrative
system as customized for Carrier and on a schedule Carrier and
[ ] will agree upon. [ ] will make up to three (3) days (i.e., 24
hours) of training available each calendar year without charge to
Carrier. Additional training will be provided upon request and
according to a schedule mutually convenient to [ ] and Carrier.
[ ] will maintain a record of hours used for training and will
convert such hours to training fees according to the current rate
schedule published by [ ] and updated annually. [ ] will invoice
Carrier monthly in arrears for training fees in excess of said 24
hours and Carrier shall pay such proper invoices in accordance
with Section 8.
1. MODIFICATION SERVICES
a. Carrier may from time to time request additional services or
improvements to existing services provided by [ ]. Where such
requests require modifications to the life insurance
administrative systems that are not included within the scope of
the Development Services provided under Section 1 or the Ongoing
Services provided under Section 2, Carrier will compensate [ ] in
accordance with Section 8. c.
b. Within ten (10) business days of Carrier's modification request,
[ ] will acknowledge modification requests in writing and [ ]
will provide Carrier with a written estimate of the time and cost
to complete the modifications. Modifications will be completed on
a mutually determined and agreed to as soon as possible. [ ]
shall own all such modifications and improvements developed
pursuant to this section 3, unless otherwise mutually agreed upon
by the parties in writing. [ ] reserves the right to refuse
modification requests that [ ] reasonable deems to be beyond
[ ]'s existing business scope.
1. STANDARDS OF PERFORMANCE
[ ] will perform Services with the highest degree of professional
care. In furtherance thereto, Standards of Performance for specific
services will be done according to standards set forth in the latest
version of the Administrative System Scope Definitions approved by
Carrier and [ ], or as otherwise mutually agreed upon in writing.
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2. TERM OF AGREEMENT
This Agreement will continue from the Effective Date until canceled,
in whole or in part, pursuant to the provisions of Sections 11 or 12.
6. CONFIDENTIALITY
a. Each of the parties to this agreement acknowledge that in the
performance of their duties as outlined herein they may require
access to information or data (including software) that is
confidential and proprietary to the other party or is information
the other party is required to keep confidential pursuant to an
agreement with a third Party, ("Confidential Information"). For
the purposes of this Agreement, confidential information also
includes all information and materials related to the business
affairs, and procedures of [ ] and Carrier that have been
designated to the other in writing as confidential, and the
design, programs, flow charts and documentation of [ ]'s and
Carrier's data processing applications system and software.
Neither party may use, copy or disclose any such Confidential
Information other than as contemplated hereunder to a
then-current Policy Owner or Producer, without the express prior
written consent of the other party. Each of the parties shall
ensure that all Confidential Information is disclosed only to
those employee(s) who will have a need of such data or
information in connection with their employment. Each of the
parties shall clearly instruct such employee(s) not to violate
the restrictions contained herein and each of the parties shall
take appropriate step to ensure that these obligations are
fulfilled. Each of the parties will defend, indemnify and hold
the other party harmless from any loss, cost, expense, damage or
liability resulting from any judicial action brought or
threatened against them as a result of the other party's improper
disclosure of said Confidential Information which it will have
access to as a result of this Agreement.
b. [ ] and Carrier will not deem the following information
Confidential. [ ] and Carrier will have no obligation with
respect to any such information which:
(i) is independently developed by the receiving party without
the benefit of the disclosing party's disclosure;
(ii) is approved in writing by the party from which such
information was received for disclosure to third parties
generally;
(iii) is generally known or is available to the public at the
time of disclosure or becomes generally known through no
wrongful act on the part of the disclosing party;
(iv) is in the receiving party's possession at the time of
disclosure (unless such information has been received as a
result of such party's breach of obligation);
(v) is known by the receiving party through disclosure by
sources other than a party hereto, but only if such
disclosing sources had the legal rights to make such
disclosure;
(vi) is required to be disclosed by law, regulation or order of
a court of competent jurisdiction (provided that both
Carrier and [ ] will exercise their reasonable efforts to
notify each other of any hearing or proceeding that is
likely to result in any such order, and to afford each
other an opportunity to object to such disclosures
c. Each party will return promptly, the Confidential Information of
the other party upon the request of the other party, provided
that if such Confidential Information is destroyed, the other
party shall deliver an officer's certificate to such effect.
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d. This Section 6 shall survive the cancellation, expiration or
termination of this Agreement.
7. WARRANTIES
a. [ ] represents and warrants that the Services performed and/or
materials produced will not violate any proprietary rights of any
third party, including, but without limitation, confidential
relationships, patent, trademark and copyright rights. [ ]
represents and warrants that all non-[ ] owned software and
hardware used in furnishing the Services hereunder have been
obtained by [ ] under valid licenses or purchases from the owners
thereof, and that [ ] is not now, nor will be during the term of
the Agreement, in default under any such license. [ ] represents
and warrants that it will not use any software or hardware during
the term of the Agreement that may cause Carrier to be charged
with infringement upon or any violation of the rights of any
owner thereof. [ ] represents and warrants that it has the
absolute right to grant Carrier a license for the use of the
Licensed Software (as defined in Section 13 below). [ ]
represents and warrants that the services rendered under this
agreement will be provided according to the standards of
Performance set forth in Section 4. [ ] represents and warrants
that it will comply with all federal, state and local laws,
rules, regulations, requirements, orders, codes, and ordinances
applicable to its performance under this Agreement and applicable
to the payment of wages to employees and the selection of
personnel to perform the Services under this Agreement. [ ]
agrees to defend, indemnify and hold Carrier harmless from any
loss, cost, expense, or damage resulting from [ ]'s breach of
this Section 7.a. Carrier may fully participate in the defense
and/or settlement or compromise at Carrier's expense. In the
event any such claim of infringement is made or injunctive relief
is granted to a claimant, [ ] shall, at its own expense: (a)
obtain the right for Carrier to continue use of the Licensed
Software, the Services or other materials: (b) substitute other
product or services of like capability: (c) replace or modify the
Licensed Software, Services or other materials so as to render
them non-infringing while retaining like capability; or (d)
refund to Carrier the purchase price and/or fees thereof.
b. [ ] represents and warrants that it has registered and will
maintain its registration as a transfer agent under applicable
law if required for the Policies currently administered; that it
is empowered under applicable laws and by its charter and bylaws
to enter and perform this Agreement; and that it has and will
continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this
Agreement.
c. [ ] represents and warrants that it will maintain an errors and
omissions policy in an amount not less than $[ ] per occurrence.
[ ] will maintain criminal theft insurance in an amount not less
than $[ ] per [ ] employee, agent, officer, or subcontractor. [ ]
will, upon request from the Carrier, provide satisfactory
evidence of any such insurance coverage. [ ] shall give Carrier
thirty (30) days' written notice prior to cancellation,
termination, alteration or material change of their coverages
under such policies. Upon Carrier's request, Carrier shall have
the right to inspect or obtain a copy of the original policies of
insurance.
d. Carrier will identify failure as a result of errors by [ ] in a
notice to [ ] within a reasonable amount of time after Carrier
learns of such errors and sufficient documentation for [ ] to
correct such errors will accompany the notification. [ ] will
correct such errors within thirty (30) days after Carrier
provides [ ] with such notification and sufficient documentation.
e. [ ] will notify Carrier if it believes that any errors within
thirty (30) days after Carrier provides [ ] with the notification
and sufficient documentation required by Section 7.d. However,
the cost of such corrections may be billed, and if so, [ ] will
invoice Carrier at the hourly rates, not to exceed [ ]'s
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published rates, charged for improvements or modifications not
covered by the Administrative System Scope Definitions, and
Carrier shall pay such proper invoices in accordance with Section
8.
f. Carrier represents and warrants that it has the absolute right to
the Policy Owner data submitted to [ ] and agrees to hold [ ]
harmless for any damages resulting from Carrier's communication
of such data to [ ].
g. [ ] represents and warrants that the Licensed Software shall
function in accordance with its specifications and shall be
"Millennium Compliant" (as defined below). For purposes of this
Agreement, "Millennium Compliant" means:
(i) the functions, calculations and other computing processes
of the Licensed Software (collectively, "Processes")
perform in a consistent manner regardless of the date in
time on which the Processes are actually performed and
regardless of the date input to the deliverable, whether
before, on or after January 1, 2000 and whether or not the
dates are affected by leap years;
(ii) the Licensed Software accepts, calculates, compares,
sorts, extracts, stores, sequences and otherwise processes
date inputs and date values, and returns and displays date
values in a consistent manner regardless of the dates
used, whether before, on or after January 1, 2000; and
(iii) the Licensed Software will function without interruptions
caused by the date in time on which the Processes are
actually performed or by the date input to the
deliverable, whether before, on or after January 1, 2000.
b. [ ] shall correct or replace any Licensed Software w hich does
not conform to the Millennium Compliant warranty set forth in
Section 7.g, and shall indemnify Carrier for all loss, cost,
damage and expense (including without limitation reasonable
attorney's' fees) arising out of [ ]'s breach of this warranty.
Notwithstanding the foregoing, [ ] shall have no obligation to
indemnify Carrier against any loss, cost, damage or expense which
arise out of a defect in any other software product in use at
Carrier and not acquired from [ ], which causes the Licensed
Software not to conform to this warranty when used in combination
with such other software product.
c. Notwithstanding any other provision of this agreement, [ ]
represents and warrants that the Licensed Software does not
contain a lockup program or device ("Disabling Devices"). [ ]
further represents and warrants that it will not under any
circumstances including enforcement of a valid contract right,
install or trigger a disabling device which in any manner
interferes with Carrier's use of the Licensed Software and/or
restricts Carrier from accessing its data files or in any way
interferes with the transaction of Carrier's business. Failure to
strictly abide by the terms of this Section 7.i shall expose [ ]
to unlimited compensatory damages as well as punitive damages and
any attorneys' fees and other costs a court may award. Further,
[ ] understands and agrees that Carrier, in addition to seeking
damages as set aout above, may secure an injunction ordering [ ]
to immediately remove any softwar lockup program or device that
is installed in the Licensed Software.
d. [ ] represents and warrants that [ ] tests or protects the
Licensed Software against viruses, Trojan horses, trap doors and
similar devices ("Viruses") that could disrupt or disable a
computer system or any of its components and that, to the best of
[ ]'s knowledge, the Licensed Software, as delivered, contain no
such Viruses. At the time of the discovery of any Viruses which
Carrier and/or [ ] can positively identify as residing in [ ]'s
Licensed Software, [ ] shall assist Carrier in removing the
Viruses and in restoring the performance of Carrier's systems to
the level at which the systems were performing before
introduction of the Viruses, at no additional cost to Carrier.
e. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,
REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
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f. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO
EACH OTHER INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
g. This Section 7 shall survive the cancellation, expiration or
termination of this Agreement.
8. COMPENSATION TO [ ] FROM CARRIER
a. For the Development Services described in Section 1, Carrier will
pay [ ] according to Schedule B.
b. For the Ongoing Services described in Section 2, Carrier will pay
[ ] according to Schedule C.
c. For the Modification Services described in Section 3, Carrier
will pay [ ] according to Schedule C.
d. Carrier will reimburse [ ] for reasonable and verifiable
out-of-pocket expenses incurred pursuant to Carrier's request and
billed by [ ], including travel to and from Carrier's site,
lodging, meals, telephone and shipping, as may be necessary in
connection with the duties performed by [ ] under this Agreement.
Carrier must approve expenses of $[ ] or more in writing prior to
the expenditure. Proper invoices listing such expenses shall be
submitted to Carrier from time to time and shall be payable
within thirty (30) days of Carrier's receipt.
e. [ ] will address each invoice issued hereunder to:
The Travelers Insurance Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxxx
Vice President
Corporate Insurance Products & Life Product
Development, 6MS
f. Carrier shall pay all applicable state, local, and federal taxes
exclusive of taxes based on the net income of [ ]. Carrier shall
not be liable for and shall have no obligation to pay penalties,
interest, or late charges imposed as a result of [ ]'s failure to
pay taxes on a timely basis, if Travelers has made timely payment
to [ ] for such taxes.
g. Except as otherwise set forth in this agreement, each party is
responsible for its own expenses regarding the fulfillment of its
obligations under this Agreement. The fees set forth in this
Agreement are all-inclusive and [ ] shall not receive further
compensation for the Services or products provided to Carrier,
without Carrier's prior written approval.
h. Except as otherwise stipulated in this Agreement, if there is a
termination of [ ]'s services pursuant to Section 12.c before the
fifth anniversary of the execution of this Agreement, Carrier
will pay monthly the Base System Operations Fee, and the fees for
all Products, Cases and Policies active as of the termination
date until the fifth anniversary of the execution of this
Agreement.
9. OWNERSHIP OF RECORDS
[ ] and Carrier specifically agree that all records developed and
maintained pursuant to Section 2 are the properties of Carrier. Upon
termination of [ ]'s services pursuant to this Agreement for any
reason, [ ] will transfer such records to Carrier within ten (10)
business days following the date of termination. Carrier hereby grants
[ ] the right to maintain copies of records as may be required to
document the services performed prior to termination and to comply
with the provisions of Section 17.
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10. INSPECTION OF RECORDS
[ ] agrees to permit Carrier and its authorized representatives to
have full access to the premises and to all books and records of [ ]
concerning the business contemplated in this Agreement during regular
business hours and following reasonable advance notice to [ ]. Carrier
will have the right to make copies of books and records and excerpts
therefrom.
11. PARTIAL TERMINATION OF [ ]'S SERVICES
[ ]'s Services as described in Section 2 will end with respect to a
specific Policy Owner upon:
a. Cancellation of Policies for that Policy Owner by Carrier or
Policy Owner, or
a. [ ]'s failure to substantially perform its duties under this
Agreement with respect to a specific Policy Owner, unless cured
by [ ] within thirty (30) days of receipt of a written notice by
Carrier that specifies the nature of the alleged failure to
perform.
12. COMPLETE TERMINATION OF [ ]'S SERVICES
The Services will end with respect to all Policy Owners upon:
a. [ ]'s failure to substantially perform its duties under this
Agreement unless cured by [ ] within thirty (30) days of receipt
of a written notice by Carrier that specifies the nature of the
alleged failure to perform;
b. Failure of Carrier to make the compensation payments to [ ] as
specified in Section 8 within thirty (30) days of notification by
[ ] that the payment is overfue by sixty (60) or more days;
c. Election by Carrier; or
d. Election by Carrier, following bankruptcy, receivership,
dissolution or other cessation of business of [ ], or the
assignment by [ ] of more than twenty-five (25) percent of its
assets for the benefit of creditors.
13. LICENSED SOFTWARE
The executable programs and associated documentation [ ] uses to
provide the services specified in Section 2 are herein referred to as
"Licensed Software".
14. USE OF [ ]'S LICENSED SOFTWARE
If there is a complete or partial termination of the Services pursuant
to Sections 11.b, 12.a, 12.c, or 12.d, and Carrier elects to use
Licensed Software to provide the services specified in Section 2, then
Carrier will be entitled to use, modify and maintain its copy of the
Licensed Software and source code deposit materials that are being
kept in escrow in accordance with Section 16 of this Agreement. The
following conditions apply to Carrier's use of the Licensed Software
and source code deposit materials:
x. XXXXX OF LICENSE
[ ] grants Carrier a perpetual worlwide, irrevocable,
nonexclusive, unlimited license for the use modification and
maintenance of the Licensed Software. [ ] authorizes Carrier's
use modification and maintenance of the Licensed Software only
for providing the Policy Owner and Producer with the services
specified in Section 2. [ ] retains the right to use any ideas,
concepts, knowledge, or techniques contained in the materials or
information furnished by [ ] pursuant to this Agreement. [ ]
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retains any and all rights it may have under U.S. Patent Laws,
U.S. Statutory Copyright Laws, or other applicable laws.
b. USE OF SOFTWARE
Use of Licensed Software hereunder shall be limited to Carrier,
its subsidiaries and affiliates and their respective officers,
directors, employees, agents, contractors and other
representatives, subject to the limitations set forth herein.
Carrier may also utilize a third party to provide administrative
services to Policy Owners and Producers, and may, accordingly
authorize any such third party to use the Licensed Software for
such purposes. Any independent contractors which Carrier desires
to use the Licensed Software must agree in writing to maintain
the confidentiality of the Licensed Software and as long as [ ]
is in the business of providing administrative services to life
insurance companies that are substantially the same as the
Services, such independent contractors affiliated with a company
providing administrative services to life insurance companies
must put in place security devices designed to insure that the
affiliate does not have access to the Licensed Software.
c. CONFIDENTIALITY OF LICENSED SOFTWARE
Carrier will keep the Licensed Software confidential in
accordance with Section 6. In the event Carrier contracts to use
a third party to provide the administrative services to Policy
Owner, Carrier will inform such third party of this obligation.
Carrier will be responsible to [ ] for all damages resulting from
Carrier's or such third party's failure to comply with this
provision.
d. CONSULTING SERVICES
Within fifteen (15) days of Carrier's election to use the
Licensed Software, [ ] will provide to Carrier the licensed
specifications for hardware and software configuration, software
installation, and all other specifications reasonable necessary
to enable Carrier to operate, maintain and modify the Licensed
Software and to Perform the services described in Section 2.
e. TRAINING AND MAINTENANCE SERVICES
[ ] will provide training and Licensed Software maintenance in
accordance with Schedule E.
f. COMPENSATION OF [ ] BY CARRIER
Carrier will pay [ ] in accordance with the Licensed Software
fees set forth in Schedule E.
15. CONTINUED USE
Subject to the terms hereof, [ ] represents and warrants Carrier's
rights to continued, uninterrupted use of the Services provided
hereunder if there is a successor in interest by merger, operation of
law, assignment, purchase or otherwise. [ ] represents and warrants
that the terms and conditions of this Agreement will remain intact
unless Carrier and [ ]'s successor mutually agree to modify or amend.
16. ESCROW OF PROGRAMS
[ ] agrees to keep on deposit a current copy of the Licensed Software
and source code deposit materials identified in the Escrow Agreement
attached as Schedule F. The licensed software held in escrow will be
updated as necessary by [ ] to maintain the most current versions with
upgrades in escrow. Carrier will pay all expenses related to escrowing
the Licensed Software.
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17. RECORD MAINTENANCE, DATA SECURITY, BACKUP AND RECOVERY
[ ] will provide data security, backup and recovery according to its
Disaster Recovery Plan, a copy of which [ ] will provide to Carrier
upon request.
[ ] will maintain, for five (5) years beyond the term of this
Agreement, the records and other materials developed and maintained
pursuant to Section 2.
18. GENERAL PROVISIONS
a. This Agreement will be governed by and construed in all respects
according to laws of the State of Pennsylvania.
b. All disputes betweent he parties will be submitted to binding
arbitration according to the commercial arbitration rules of the
American Arbitration Association to be conducted at some mutually
agreed location. While an arbitration proceeding is pending, [ ]
will continue to provide the Services to the Carrier and the
Carrier will continue to pay compensation to [ ]. In no event
will [ ] attempt to resolve disputes via failure to perform
services. In no event will Carrier attempt to resolve disputes
via failure to compensate [ ].
c. All attached Schedules are incorporated herein by reference.
d. [ ], at all times, will be independent contractor and the
employees of [ ] will in no event be considered employees of
Carrier. No agency relationship between the parties, except as
expressly provided herein, will exist from the execution of this
Agreement or the performance of duties by the parties hereunder.
e. This Agreement and any waiver, amendment or modification of any
provision hereof will not be binding upon either party until an
authorized officer of said party signs it.
f. This Agreement will be binding upon and inure to the benefit of
the parties hereto and their respective successors and lawful
assigns.
g. All rights, powers and privileges conferred will be cumulative
and will not restrict those given by law. No failure of either
party to exercise any power or right given to said parties
hereunder, and no customs or practices of the parties in variance
of th eterms hereof will constitute a waiver of either party's
right to demand exact compliance with the terms hereof.
h. Except as otherwise may be stipulated in this Agreement, [ ] and
Carrier each agree to indemnify and to hold the other harmless,
against any and all calims, demands, causes of action, losses,
costs and expenses, including without limitation all costs,
expenses and reasonable attorneys' fees (whether based upon tort,
breach of this Agreement, failure to pay employee taxes or
withholdings, failure to obtain workers compensation insurance,
or otherwise), including reasonable attorneys' fees incurred in
appealing an adverse judgment, death or injury to any person,
damage to any property, by whomsoever suffered, arising out of
any act of omission or negligence by the indemnifying party, its
assigns, or their respective subcontractors, officers, directors,
employees, or servants.
i. The performance by [ ] and Carrier hereunder may be subject to
delays caused by an Act of God, war, riot, fire, explosion,
accident, flood, sabotage, inability to obtain fuel or power,
governmental laws, regualtions or order, acts or inaction of the
other party, or any other cause beyond th e reasonable control of
a party. If there is such delay, the times for performance as
specified in Section 11.b and 12.a will be adhered to.
j. Neither party may assign its rights, duties and liabilities
pursuant to this Agreement to any third party (other than their
respective subsidiaries or successors) without prior written
consent of the other party, which will not be unreasonably
withheld. Notwithstanding, the foregoing sentence, Carrier may
assign or transfer this Agreement in whole or in part, without
consent, by providing written notice to [ ] in the following
circumstances:
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(i) To an affiliate of Carrier;
(ii) Incident to a sale, transfer or other disposition by
Carrier or an affiliate of Carrier of all or substantially
all of the assets of that component of Carrier's business
or its affiliate's business having the benefit of this
Agreement.
[ ] agrees that is shall continue to honor the terms and
conditions of this Agreement following such assignment or
transfer.
a. The subsidiaries and affiliates of Carrier, and any third party
where the third party is contracted by Carrier to perform
services for or on behalf of Carrier are authorized to receive
the Services and use the Liensed Software to permit the orderly
continuation of business when a subsidiary or affiliate of
Carrier, or a department or division of either Carrier or of any
of its subsidiaries or affiliates ("Authorized User") loses its
status as such; said Authorized User shall have the right to
continue to receive the Sercies and/or use the Licensed Software
provided hereunder for a period not to exceed two (2) years at no
additional cost other than as provided for in this Agreement,
after the loss of its status as a subsidiary, affiliate,
department or division of Carrier. Continued use by an Authroized
User during this period shall not relieve Carrier of any of its
obligations hereunder. Without limiting the foregoing, and if so
indicated herein or otherwise by Carrier, Carrier enters into
this Agreement in its capacity as purchaasing agent for Travelers
Asset Funding Corporation ("TAFC"), an affiliate of Carrier,
Carrier assumes those obligations not assumed by TAFC.
b. If any court deems any word, phrase, clause or provision of this
Agreement to be invalid, illegal or unenforceable, then
notwithstanding such invalidity, illegality or unenforceability,
the remainder of this Agreement will nevertheless remain in full
force and effect.
c. This Agreement, taken together with supporting documents
incorporated by reference herein, constitutes the entire
Agreement between the parties with respect to the subject matter
contained herein and may only be modified by an amendment
executed in writing by both parties hereto. No statement,
promise, or inducement made by Carrier, [ ], or any
representative that is not contained in this Agreement will be
valid or binding.
d. Both parties agree to execute and deliver promptly any and all
further documents that may be necessary or appropriate to fully
carry out the terms and intent of this Agreement.
e. Carrier, through its own representatives, from time to time after
the Effective Date, may make such investigation of [ ] and such
audits of its financial condition as it deems necessary or
advisable to familiarize itself with [ ]. In furtherance thereto,
[ ] agrees to provide Carrier upon request with an annual
financial statement and independent auditor's report prepared by
a Certified Public Accountant chosen by [ ], and will not
unreasonably withhold information from Carrier concerning [ ]'s
interim financial condition. [ ] agrees to permit Carrier and its
authorized representatives to have full access to the premises
and to all books and records of [ ] concerning the business
contemplated in this Agreement during regular business hours and
upon reasonable advance notice to [ ]. Carrier will have the
right to make copies of books and records and excerpts therefrom.
f. Neither party shall use the name, trade name, service marks,
trademarks, tarde dress or logo of the other (nor the
subsidiaries and affiliates of the other) in publicity releases,
advertising or similar activities without the prior written
consent of the other.
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g. Whenever one party is required or permitted to give notice to the
other party under this Agreement such notice will be deemed given
either when delivered inhand, one day after being given to an
express courier with a reliable system for tracking delivery, or
three days after the day of mailing when mailed by registered or
certified, return receipt requested, postage prepaid Undited
States mail, or when sent by facsimile, and thereafter delivered
by one of th eforegoing methods of deliver to the persons and at
the addresses listed below. Each party hereto may from time to
time change its address for notification purposes by giving the
other party prior written notice of the new address and the date
upon which it will become effective.
[ ] Carrier:
[ ] TPA, Inc. The Travelers Insurance Company
[address redacted] Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxxxxx
Corporate Insurance Products
& Life Product Development,
6MS
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r. Each of the undersigned persons represents that they have the
authority to execute this Agreement on behalf of the party for
which he or she signs.
IN WITNESS WHEREOF the parties have by their duty authorized representatives
hereto executed this Agreement on the day and year above first written.
[ ] TPA, Inc. Carrier
By:__________________________________ By:______________________________________
Name: Name:
Title: President Title:
Date:________________________________ Date:____________________________________
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