exv10w1



 







Exhibit 10.1




SOFTWARE AND SERVICES AGREEMENT




          THIS SOFTWARE AND SERVICES AGREEMENT (this “Agreement”), dated as of this 31st day of May,
2006 (the “Effective Date”), is made by and between Health Benefits Direct Corporation (“HBDC”),
having a place of business at 5 Radnor Corporate Center, Suite 555, Radnor, Pennsylvania 19087,
Insurint Corporation (“Insurint”), having a place of business at 5 Radnor Corporate Center, Suite
555, Radnor, Pennsylvania 19087 and Realtime Solutions Group, L.L.C. (“Vendor”), having a place of
business at 20 North Wacker Drive, Suite 4000, Chicago, Illinois, 60606.




          WHEREAS, Vendor, Insurint and HBDC desire to enter into this Agreement to provide for, among
other things, the license of certain software, technology and related documentation by Vendor to
Insurint, and the development and ownership of derivative works thereof by Insurint.




          NOW THEREFORE, in consideration of the mutual covenants and conditions set forth herein, and
intending to be legally bound hereby, each of Vendor, Insurint and HBDC agrees as follows:




1. DEFINITIONS




          In addition to the capitalized terms defined throughout this Agreement, the following terms
when used herein shall have the respective meanings assigned to them below:




          1.1 “Certificate of Compliance” means a written certificate of a duly authorized
representative of Vendor stating that the Software functions in compliance with the written
specifications provided by Vendor.




          1.2 “Deliverables” means the Derivative Works, customizations and any other processes
and information developed or created for or provided to Insurint by, or on behalf of, Insurint,
Primary Contractor, Secondary Contractor or Vendor, including any Derivative Works, customizations
and any other processes and information developed by Primary Contractor or Secondary Contractor
during the performance of the Services.




          1.3 “Derivative Works” means the Materials, as modified or enhanced by or on behalf of
Insurint or as part of the Services, and any modifications, enhancements and derivative works based
on, or derived from, the Materials, including without limitation any translation, abridgement,
condensation, or any other form in which a work may be recast, transformed, or adapted.




          1.4 “Disabling Code” means any lock, clock, timer, counter, copy protection feature,
replication device, “virus” or “worm,” as those terms are commonly used in the computer industry,
or other software code that may (a) lock, disable, or erase any software, programs, or data of
Users, (b) limit or prevent full use of or copying of the materials as permitted under this
Agreement, (c) harm or otherwise interfere with servers or data processing hardware (including
terminals, auxiliary storage, and communication and peripheral devices), or (d) require action or
intervention by Vendor or any other person to allow use of the materials as permitted under this
Agreement.




          1.5 “Documentation” means, when used with respect to software or other technology, all
documentation, technical manuals, operator and user manuals, flow diagrams, file descriptions and
other written information describing the functions, operational characteristics and specifications
of such software or other technology, or explaining how to install, use, maintain and/or support
such software or other technology.




          1.6 “Insurint Agent” means any Person engaged in marketing, promoting or selling
health benefits or insurance policies, products or services, which Person shares any portion of the
corresponding compensation from any such sales with Insurint.




          1.7 “Insurint Customer” means any Person to whom Insurint and its affiliates and
subsidiaries provide products or services, and the direct and indirect customers of any such
Person.




          1.8 “Insurint Data” means (a) all data and information provided by or on behalf of any
User, (b) all data and information of any User(s) to which Vendor has access under this Agreement,
and (c) all data and information obtained, developed or produced by Vendor in connection with any
of the foregoing.




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          1.9 “Laws” means laws, rules, regulations or orders of any governmental, regulatory or
judicial authority or the rules of any stock exchange.




          1.10 “Maintenance Services” means support and maintenance services for the Software
provided by Vendor to Insurint pursuant to this Agreement or any attachments hereto.




          1.11 “Materials” means the Software, and all Documentation, Source Code and Object
Code associated with the Software.




          1.12 “Nonconformity” means an error or defect in the Software or in any Deliverable,
or any other failure of the Software or Deliverable to operate in compliance with the Software’s or
Deliverable’s corresponding Documentation, written specifications published by Vendor, or any
written specifications agreed to in writing by both parties hereto.




          1.13 “Object Code” means computer programming code, routines and programs in machine
executable form.




          1.14 “Person” means any individual, partnership, limited liability company, joint
venture, corporation, trust, association, unincorporated organization or other form of entity.




          1.15 “Privacy Laws” means all laws, rules, regulations and court orders governing the
privacy of the Insurint Data, including without limitation the Gramm-Leach-Bliley Act of 1999 and
the regulations promulgated thereunder, as the same may be amended from time to time, and similar
laws, rules, regulations and court orders in other jurisdictions.




          1.16 “Professional Services” means the customization and other professional services
provided by or on behalf of Vendor to Insurint, as further described in Exhibit B hereto.




          1.17 “Services” means the Professional Services, Maintenance Services and any other
support or training services provided by Vendor to Insurint.




          1.18 “Software” means the software programs and technology listed on Exhibit A, as
such list may be jointly amended by the parties from time to time, all Object Code and Source Code
relating thereto and all updates, new versions, new releases and upgrades to the Software offered
or created by or for Vendor.




          1.19 “Source Code” means computer programming code, routines and programs in human and
machine readable form, including, to the extent available, all documentation, programming
specifications, listings of instructions, diagrams and drawings necessary to understand, use and
maintain such computer programming code, routines and programs.




          1.20 “System” means any information technology product, solution or service with which
the Software operates or shares data, including without limitation any operating system,
development platform, or application software.




          1.21 “Users” means (a) Insurint and its affiliates and subsidiaries and their
respective employees, agents and providers; (b) Insurint Customers, insurance carriers and other
persons or entities authorized by Insurint; and (c) Insurint Agents.




2. LICENSE RIGHTS




          2.1 License Grant. Vendor hereby grants to Insurint a worldwide, transferable (if
transferred in accordance with Section 12.3), non-exclusive, perpetual, irrevocable right and
license to use, display, copy, modify, enhance and access (“Use”) the Materials and create
Derivative Works for Use within, and strictly limited to, the field of use of the marketing,
promotion and sale of health benefits or insurance products by Insurint or its affiliates or
subsidiaries or any of their respective employees and agents, or an Insurint Agent. The foregoing
license grant includes the right to grant sublicenses (through one or more tiers) to provide access
to and use of the Materials to Users, solely in support of the marketing, promotion and sale of
health benefits or insurance products where the sale is made by Insurint, or its affiliates or
subsidiaries or any of their respective employees and agents or by an Insurint Agent. The Users
may use, display, copy, modify, enhance, access and create Derivative Works of, and based on, any
product, solution or service developed, based on or incorporating the Materials or any derivative
work thereof at multiple locations simultaneously, both within and outside the United States. The
license rights granted to Insurint hereunder shall include rights to practice under any patents
owned or licensed to Vendor claiming or covering the Materials or any features, functions or
methodologies embodied therein.




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          2.2 Delivery. Within two calendar days following the Effective Date and upon
Insurint’s request, Vendor shall deliver to Insurint master copies of the Materials (including both
Object Code and Source Code of the Software). Thereafter, promptly after Vendor first distributes
an update to or new version, release or upgrade of any Software and Documentation to any other
customer of Vendor (and in any event within ten calendar days), Vendor shall deliver to Insurint
master copies of such Software and Documentation.




          2.3 Acceptance. Following delivery of the Software under this Agreement, Insurint
(itself or through one or more third parties) shall test and implement the Software. If, following
such acceptance testing, Insurint notifies Vendor that the Software contains one or more
Nonconformities, Vendor shall make continuous, commercially reasonable efforts to repair or replace
such item within ten calendar days of its receipt of such notice of Nonconformities and shall
deliver a Certificate of Compliance to Insurint to indicate that Insurint may begin retesting. If
Vendor cannot correct the Software so that it is free of Nonconformities within a thirty day
period, then Insurint may, in addition to other rights and remedies that may be available to
Insurint, terminate this Agreement, return to Vendor the Software and, Vendor shall reimburse
Insurint for the full amount previously paid under this Agreement for the Software or such portions
of the Software, as applicable, within 30 calendar days following receipt of the rejected item by
Vendor.




          2.4 No Dependency. The continuation of license rights granted under this Agreement
shall not be dependent on Insurint purchasing or continuing to purchase any maintenance or support
services from Vendor.




          2.5 Professional Services. Vendor shall provide the Professional Services at the
request of Insurint and pursuant to this Agreement and the terms and conditions set forth on
Exhibit B.




3. INTELLECTUAL PROPERTY RIGHTS




          3.1 Materials. Vendor owns and shall continue to own all intellectual property in or
attached to the Materials, subject to the license rights granted by Vendor hereunder and the
ownership rights in Sections 3.2, 3.3, 3.4 and 3.5.




          3.2 Deliverables. Vendor hereby irrevocably and perpetually assigns to Insurint all
right, title, and interest (including all copyrights, patent rights and rights of invention) in and
to the Deliverables.




          3.3 Derivative Works. Insurint shall own, and Vendor hereby irrevocably and
perpetually assigns to Insurint, all right, title and interest (including all copyrights, patent
rights and rights of invention) in Derivative Works made by or on behalf of Insurint, Insurint
Customers, any other agents of Insurint or by Vendor as part of the Professional Services and no
license is granted to Vendor with respect to such Derivative Works.




          3.4 Insurint Course Materials. Insurint shall have the right to create courses and
course materials in order to train its employees on the use of the Software. Any such courses and
course materials created by Insurint shall be the exclusive and proprietary property of Insurint.




          3.5 Insurint Ownership of Insurint Data. All Insurint Data, together with any
associated copyright and other intellectual property rights, shall be the sole and exclusive
property of Insurint, free and clear of all liens, encumbrances or other security interests.
Without Insurint’s prior written approval (in its sole discretion), the Insurint Data shall not be:
(a) used by Vendor other than in connection with fulfilling its obligations under this Agreement,
(b) disclosed, sold, assigned, leased or otherwise provided to third parties by Vendor, or (c)
commercially exploited by or on behalf of Vendor. Vendor hereby irrevocably assigns, transfers and
conveys to Insurint without further consideration all of its right, title and interest in and to
the Insurint Data, together with any copyright and other associated intellectual property rights.
Upon Insurint’s request, Vendor shall execute and deliver to Insurint all instruments and other
documents, and shall take such other actions as may be necessary or as reasonably requested by
Insurint, so that Insurint may protect and defend its rights in and to such Insurint Data and
associated copyright and other intellectual property rights.




          3.6 Further Assurances. Upon the request of Insurint, Vendor shall execute and deliver
any and all additional instruments and documents and take such other future actions as may be
necessary or reasonably requested by Insurint to document Insurint’s rights in and to the
Deliverables and Derivative Works or to enable Vendor to secure, register, maintain, enforce, and
otherwise fully protect its rights in and to the Deliverables and Derivative Works.




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4. MAINTENANCE AND SUPPORT




          Vendor shall provide Insurint with Maintenance Services for the Software, while the
Maintenance Services are in effect, as follows:




          4.1 Vendor shall provide telephone assistance and such other services and assistance as are
necessary to cause the Software to perform in accordance with its Documentation and specifications
and to otherwise cause the Software to conform to the warranties set forth in this Agreement.
Availability of assistance and response times shall be set forth in Exhibit C.




          4.2 Vendor shall be responsible for resolving all problems with the Software reported by
Insurint that impair one or more of the essential features or functions of the Software, including
without limitation diagnosing whether a problem is related to hardware or to the Software and, in
the case of a problem related to the Software, taking the steps necessary to cause the appropriate
response to be made to such problem. If it is determined that the problem is caused by Insurint’s
hardware, then Vendor will be compensated for its time in diagnosing the problem. In any event,
Vendor shall fully cooperate with other vendors as necessary to resolve any such problems.




          4.3 Vendor shall provide Insurint at any scheduled release date (at no charge) (i) while the
Maintenance Services are in effect with all new releases, enhancements, updates, corrections or
other modifications (regardless of how characterized) to the Software and (ii) during the first
five years while the Maintenance Services are in effect, all new versions of the Software
(including, updates and corrections to the Source Code for items provided pursuant to clauses (i)
or (ii) of this paragraph) that are distributed, designed, developed or created by Vendor. Without
limiting the foregoing, Vendor shall provide updates to the Software to enable them to operate
under new versions or releases of the operating systems used by Insurint so long as they are
technically feasible.




          4.4 Vendor shall, upon discovery, notify Insurint of any known problems with the Software and
shall provide to Insurint any discrepancy reports or technical newsletters when such problems are
identified and listing all known “bugs” and their status and, to the extent possible, providing
“fixes” and/or work-around procedures for such problems.




          4.5 Maintenance Services shall be provided at no charge for the first 12 months from date of
acceptance of the Software (the “Initial Period”).




          4.6 Following the Initial Period, Insurint shall have the option to require Vendor to provide
additional Maintenance Services to Insurint in accordance with Exhibit A. In the event Insurint so
elects, Insurint shall pay to Vendor an annual fee of $100,000, payable as set forth in Exhibit A,
for any future Maintenance Services to be provided by Vendor.




          4.7 Subject to the provisions of this Agreement allowing for suspension of Maintenance
Service, Vendor shall, at the request of Insurint, provide Maintenance Services for at least 12
months beyond the Initial Period. Insurint may terminate Maintenance Services upon 30 days’
written notice, to be effective any time after the Initial Period, at which time the Maintenance
Services shall cease and Insurint shall no longer be obligated to pay additional fees for such
Maintenance Services, or, if the maintenance fee was prepaid for a specified period of time, Vendor
shall refund a prorated amount for the period covered by the fee remaining after termination is
effective. Insurint may have Maintenance Services reinstated after any cancellation thereof upon
written request to Vendor.




          4.8 After the Initial Period plus the first year of Maintenance Services, Vendor may terminate
Maintenance Services at any time upon 90 calendar days’ prior written notice; provided, however,
that if Vendor does so and Insurint does not have a current version of the Source Code for the
Software involved, Vendor shall provide that Source Code to Insurint, upon Insurint’s request, at
least 60 calendar days prior to the actual termination of Maintenance Services.




          4.9 Each party hereto acknowledges and agrees that the provision of Maintenances Services by
Vendor to Insurint shall not be a requirement of obtaining or continuing Insurint’s license rights
under this Agreement. If for any reason the Maintenance Services are terminated, Insurint’s rights
under this Agreement shall not be affected in any manner. Without limiting the foregoing, if
Vendor becomes the subject of a Bankruptcy Event and in connection therewith Vendor is relieved of
its obligations under this Agreement with respect to the Maintenance Services pursuant to Section
365(n) of the Bankruptcy Code or Vendor otherwise ceases to perform such obligations in connection
with the Bankruptcy Event, the




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portions of the applicable schedule covering Maintenance Services shall terminate
automatically upon the occurrence of the Bankruptcy Event and Insurint shall be relieved of
Insurint’s payment obligations with respect to the Maintenance Services without affecting
Insurint’s license rights under this Agreement (Insurint’s payment obligations with respect to
Maintenance Services shall not be deemed to be “royalty payments,” as used in Section 365(n)(2)(B)
of the Bankruptcy Code). For purposes of this Section 4.9, “Bankruptcy Event” shall mean (i) if
Vendor becomes insolvent, (ii) if, voluntarily or involuntarily, proceedings by or against Vendor
are instituted in bankruptcy or under any insolvency law, (iii) if a receiver or custodian is
appointed for Vendor, (iv) if proceedings are instituted by or against Vendor for corporate
reorganization or the dissolution of Vendor, which proceedings, if involuntary, shall not have been
dismissed within 30 calendar days after the date of filing, (v) if Vendor makes an assignment for
the benefit of creditors, or (vi) if substantially all of the assets of Vendor are seized or
attached and not released within 30 calendar days thereafter.




5. COMPENSATION




          5.1 Fees. In consideration of the license rights granted by Vendor hereunder and the
other covenants of Vendor hereunder, HBDC shall pay to Vendor, on behalf of Insurint, the license
fees as set forth in Exhibit A (the “License Fees”). No other fees or amounts beyond those
expressly set forth in this Agreement are required for Insurint or the Users to enjoy all of the
rights granted under this Agreement.




          5.2 Taxes. Insurint shall be responsible for all federal, state, local and other
sales, use and other similar taxes that may be imposed by law upon Insurint or Vendor, other than
taxes based upon the income of Vendor with respect to the license rights granted hereunder. Where
Vendor is required to collect and remit any such taxes under applicable law, Vendor shall
separately state such taxes on its invoices to Insurint and shall remit all amounts received on
account thereof to the appropriate taxing authority. Vendor shall maintain full and detailed
records of all such taxes invoiced to Insurint and paid to the taxing authority by Vendor.




          5.3 Invoices. Vendor shall submit invoices to Insurint as specified in Exhibit A
detailing the amounts payable by Insurint hereunder. Insurint shall remit payment to Vendor within
30 calendar days following its receipt of each such invoice; provided that Insurint may withhold
payment of any amounts that are disputed by Insurint in good faith pending resolution of the
dispute.




          5.4 Best Customer Pricing by Vendor. Notwithstanding anything to the contrary herein,
Vendor guarantees that the fees charged to Insurint hereunder shall be as good as or better than
the fees and other amounts charged by Vendor to any of its other customers that have made
arrangements with Vendor that are substantially similar to those hereunder for the receipt of
similar license rights and with similar terms. Should Vendor provide any of such other customers
with similar rights for lower fees or other amounts as compared to those charged to Insurint
hereunder, Vendor shall promptly offer Insurint the benefit of such more favorable fees and other
amounts. Upon Insurint’s reasonable request, Vendor shall provide written confirmation signed by
an officer of Vendor that Vendor is in full compliance with the requirements of this Section.




6. REPRESENTATIONS, WARRANTIES AND COVENANTS




          6.1 Mutual. Each party hereto hereby represents and warrants to the other that (a) it
has all requisite corporate power and authority (or if a party is not a corporation, such party
represents and warrants that it has sufficient power and authority under its organizational
documents or agreements) to enter into this Agreement and to carry out the transactions
contemplated hereby, (b) the execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all requisite
corporate (or, as applicable, other entity) action on the part of such party, (c) this Agreement
has been duly executed and delivered by such party and (assuming the due authorization, execution,
and delivery hereof by the other party) is a valid and binding obligation of such party and
enforceable against it in accordance with its provisions, and (d) its entry into this Agreement
does not violate or constitute a breach of any agreement to which it is a party or otherwise bound.




          6.2 Materials and Deliverables. Vendor represents and warrants to Insurint that (a)
Vendor has all necessary rights, title, licenses, permissions, and approvals required to grant the
rights and licenses to the Materials and Deliverables as set forth in this Agreement, (b) Vendor
has not received any written notice or claim, and is not otherwise aware, that the Materials or any
Deliverable, or the use thereof as contemplated by this Agreement, infringes on or misappropriates,
or would infringe on or misappropriate, the copyright, patent, trademark, trade secret, or other
intellectual property or other proprietary rights of any third party, and (c) the Materials and the
Deliverables, and use of each of the foregoing as contemplated by this Agreement, do not violate
any laws, rules, or regulations of any governmental or judicial authority.




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          6.3 Media. To the extent any of the Materials or Deliverables are furnished hereunder
on magnetic, optical, or other storage media, Vendor represents and warrants to Insurint that such
media shall be free from defects in material and workmanship under normal use for a period of one
year from the date of its delivery by Vendor to Insurint (the “Media Warranty Period”). If
Insurint, during the Media Warranty Period, notifies Vendor of any breach of the foregoing
warranty, Vendor shall replace, at Vendor’s expense, the defective media.




          6.4 Services. Vendor represents and warrants to Insurint that (a) the professional
staff it assigns to perform Services shall be competent to perform the Services rendered by them as
required hereunder, and (b) the Services performed under this Agreement shall be of professional
quality, consistent with generally accepted industry standards for the performance of services of a
similar nature. If Insurint, within the 60 calendar days immediately following Vendor’s performance
of any portion of the Services, notifies Vendor of any breach of the foregoing warranty that
results in non-conforming Services, Vendor shall re-perform such Services such that they conform
with the foregoing warranty. If Vendor is unable to properly re-perform such Services within a
reasonable period of time, or if Insurint reasonably determines that such re-performance is
impractical, Vendor shall, if so directed by Insurint, promptly refund to Insurint any fees for
Maintenance Services or the Professional Services, as applicable, paid by Insurint for the
non-conforming Services.




          6.5 Compliance with Law. Vendor represents and warrants to Insurint that in
performing its obligations and exercising its rights under this Agreement, Vendor shall comply (and
shall require all of its personnel and agents providing Services hereunder or otherwise involved in
Vendor’s performance under this Agreement to comply) with all applicable laws, rules, regulations,
and other governmental requirements relating to or affecting this Agreement or the work to be
performed by Vendor hereunder, and that Vendor shall obtain and maintain all permits, licenses, and
consents required in connection therewith. Without limiting the foregoing, Vendor represents and
warrants to Insurint that in performing its obligations and exercising its rights under this
Agreement, Vendor shall comply with all applicable privacy laws, as well as all regulations
promulgated under any of the foregoing.




          6.6 No Open Source Code. Vendor represents and warrants to Insurint that neither the
Software nor any Deliverables provided by Vendor to Insurint under this Agreement or any addendum
hereto contain any freeware, computer code, or other items or materials that are subject to the GNU
General Public License or any other open source license agreement.




          6.7 Operation of Software. Vendor represents and warrants to Insurint that, for a
period of 12 months after acceptance (the “Software Warranty Period”), the Software shall not
contain any Nonconformities. If Insurint, within the Software Warranty Period, notifies Vendor of
any breach of the foregoing warranty, Vendor shall use commercially reasonable efforts to correct
the Nonconformity. If Vendor is unable to correct the Nonconformity within 30 calendar days,
Vendor shall, if so requested by Insurint, promptly refund to HBDC the License Fees (or refund to
Insurint a portion of the fees for Maintenance Services, if the Nonconformity is related to an
Update) paid by HBDC for the defective Software.




          6.8 Deliverables. Vendor represents and warrants to Insurint that, for a period of 12
months after acceptance (the “Deliverable Warranty Period”), the Deliverables (as delivered by
Vendor) shall substantially conform to their applicable specifications. If Insurint, within the
applicable Deliverable Warranty Period, notifies Vendor of any breach of the foregoing warranty,
Vendor shall use commercially reasonable efforts to correct the Nonconformity. If Vendor is unable
to correct the Nonconformity within 30 days, or if Insurint reasonably determines that such
correction is impractical, Vendor shall, if so directed by Insurint, promptly refund to Insurint
the fees paid by Insurint for the defective Deliverables.




          6.9 No Disabling Code. The Software does not contain, and Vendor shall not insert
into the Software any Disabling Code. Vendor shall use up-to-date, appropriate and commercially
available virus scanning software (e.g., McAfee, Norton) and shall institute and follow reasonable
virus scanning procedures. Vendor shall take commercially reasonable precautions so that Vendor
does not transmit a Virus to any Insurint computing system.




          6.10 THE WARRANTIES AND REPRESENTATIONS STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE, AND IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.




7. INSURANCE, DISCLAIMERS AND LIMITATIONS OF LIABILITY




          7.1 Insurance. Vendor shall carry at least the following insurance coverage
throughout the Term:




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               7.1.1 Commercial General Liability insurance, including personal injury, advertising injury,
products and completed operations and contractual liability, in an amount not less than $2,000,000
per occurrence;



               7.1.2 Worker’s compensation in statutory limits;



               7.1.3 Professional Liability and Cyber Risk insurance in the minimum amount of $1,000,000 per
claim and in the policy term aggregate, covering losses resulting from Vendor’s performance of the
services in this agreement; and



               7.1.4 Employee dishonesty in a minimum amount of $300,000 per occurrence.



          7.2 Additional Obligations. Vendor shall furnish Insurint with certificates of
insurance evidencing the above coverages and providing for at least 30 calendar days’ prior written
notice to Insurint of cancellation or material modification. Except for the workers’ compensation
policies, all policies of insurance shall name Insurint as an additional insured. Each policy shall
contain a provision that no act or omission of Vendor shall affect or limit the obligation of the
insurer to pay Insurint the amount of any loss sustained. The foregoing policies, with the
exception of professional liability insurance, shall be carried on an occurrence basis. Insurance
carried on a claims made basis shall be carried for a sufficient period after the Term of this
Agreement to cover all claims. The insurance coverages shall be primary, and all coverage shall be
non-contributing with respect to any other insurance or self insurance which may be maintained by
Insurint. With the exception of professional liability and cyber risk insurance, all coverage
required by this Agreement shall include a waiver of subrogation and a waiver of any
insured-versus-insured exclusion regarding Insurint (provided that this waiver of subrogation shall
not circumvent Vendor’s indemnification obligations under the terms of the Agreement). For the
avoidance of doubt, any policy amounts or limitations shall not in any event be construed as
limitations or expansions on Vendor’s liability under the Agreement. Vendor shall be responsible
for risk of loss of, and damage to, equipment, software or other materials in its possession or
under its control.




          7.3 Limitation on Certain Damages. EXCEPT IN CONNECTION WITH: (A) THE INDEMNIFICATION
OBLIGATIONS OF VENDOR UNDER SECTION 8; (B) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF VENDOR OR ITS PERSONNEL; (C) EITHER PARTY’S LIABILITY FOR A BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 AND (D) EITHER PARTY’S AGGREGATE LIABILITY OBLIGATIONS
UNDER SECTION 7.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFIT OR SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING UNDER OR IN CONNECTION
WITH A BREACH OR ALLEGED BREACH OF THIS AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.




          7.4 Maximum Aggregate Liability of the Parties. IN NO EVENT SHALL EITHER PARTY’S
AGGREGATE LIABILITY TO THE OTHER PARTY WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES
ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE,
EXCEED THE AMOUNT OF $550,000.




8. INDEMNIFICATION




          8.1 By Vendor. Vendor shall defend Insurint, its affiliates, and their respective
directors, officers, employees, agents, contractors, successors, and assigns (each, an “Indemnified
Party”) from and against any and all claims, demands, investigations, and causes of actions by
third parties (each, a “Claim”) to the extent such Claims are based on or arise from (a) any
allegations that any of the Materials (including any open source code incorporated therein),
Deliverables (as such Deliverables are delivered by Vendor), Professional Services or Maintenance
Services infringe upon or misappropriates the patent, copyright, trademark, trade secret, or other
intellectual property or proprietary rights of a third party, (b) any bodily injury (including
death) or damage to or loss of any tangible personal or real property caused by the actions or
omissions of Vendor, its affiliates, or any of their respective directors, officers, employees,
agents, contractors, successors, or assigns, or (c) any allegation that any of Vendor’s personnel
is an employee of Insurint by virtue of performing any Services under this Agreement or otherwise.
In addition, Vendor shall indemnify and hold each Indemnified Party harmless from and against any
and all damages, losses, fines, penalties, costs, and other amounts (including reasonable
attorney’s fees and expenses) incurred or suffered by any such Indemnified Party in connection with
any such Claims.




          8.2 Additional Remedy. If Insurint is enjoined or otherwise prohibited, or is
reasonably likely in the opinion of Insurint’s counsel to be enjoined or otherwise prohibited, from
using any of the Materials or Deliverables (as such Deliverables are delivered by Vendor), or a
portion of any of the foregoing, based on a Claim covered by Vendor’s indemnification obligations
under




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Section 8.1(a) above, then Vendor shall, at its sole expense and option and in addition to
fulfilling its obligations under Section 8.1: (a) obtain for Insurint the right to use the
infringing portion(s) of the affected Materials or Deliverables, (b) modify the infringing
portion(s) of affected Materials or Deliverables so as to render them non-infringing without
substantially diminishing or impairing their functionality, (c) replace the infringing portion of
the affected Materials or Deliverables with non-infringing items of substantially similar
functionality, or (d) request that Insurint return the Materials or Deliverables in question to
Vendor and Vendor shall promptly refund to HBDC the License Fees (or refund to Insurint a portion
of the fees for Maintenance Services, if the Claim is related to an Update) paid by HBDC for the
Materials.




9. CONFIDENTIAL INFORMATION




          9.1 Confidential Information means information, in any form, related to the subject matter of
this Agreement and any of the projects hereunder (including any third party information), and the
business of the disclosing party, which (a) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by other persons who can obtain economic value
from the disclosure or use of the information, (b) is the subject of efforts by the disclosing
party or owner of the third party Confidential Information that are reasonable under the
circumstances to maintain the secrecy of the information, (c) is identified by either party as
“Confidential” and/or “Proprietary,” or which, under all of the circumstances, ought reasonably to
be treated as confidential and/or proprietary, including this Agreement, or (d) is accessed by the
receiving party and is of the nature that a reasonable person would consider or should consider
such information to be of a confidential or proprietary nature, whether or not the disclosing party
marks such information “confidential.”




          9.2 Except as otherwise permitted hereunder, neither party shall disclose to a third party
Confidential Information of the other party. The receiving party shall use the same degree of care
as it uses to protect the confidentiality of its own confidential information of like nature, but
no less than a reasonable degree of care, to maintain in confidence the Confidential Information of
the disclosing party. The foregoing obligations shall not apply to any information that: (a) is
required to be disclosed by law, subpoena or other process, (b) is disclosed in connection with any
application for patent or copyright protection with respect to the intellectual property rights
specified in Article 3 or (c) is disclosed in connection with any dispute, claim or action between
the parties. Upon Insurint’s request or completion of Vendor’s obligations under this Agreement,
Vendor shall return or destroy all material in its possession or control, in any medium, that
contains or is based on Insurint’s Confidential Information.




          9.3 In the event of any disclosure or loss of, or inability to account for, any Confidential
Information of the disclosing party, the receiving party promptly shall: (a) notify the disclosing
party upon becoming aware thereof; (b) take such actions as may be necessary or reasonably
requested by the disclosing party to minimize the violation; and (c) cooperate in all reasonable
respects with the disclosing party to minimize the violation and any damage resulting therefrom.




          9.4 The obligations of confidentiality hereunder shall survive the termination or expiration
of this Agreement.




          9.5 Confidential Information shall not include any information that (a) is at the time of
disclosure, or thereafter becomes, through a source other than the receiving party, publicly known,
(b) is subsequently learned from a third party that does not impose an obligation of
confidentiality on the receiving party, (c) was known to the receiving party at the time of
disclosure, or (d) is developed independently by the receiving party.




          9.6 Each party’s Confidential Information shall remain the property of that party. Nothing
contained in this Section 9 shall be construed as obligating a party to disclose its Confidential
Information to the other party, or as granting to or conferring on a party, expressly or impliedly,
any rights or license to the Confidential Information of the other party, and any such obligation
or grant shall only be as provided by other provisions of this Agreement.




10. TERM AND TERMINATION; SURVIVAL




          10.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective
Date and shall continue until terminated as set forth herein.




          10.2 Termination by Insurint. Insurint may terminate the Term of this Agreement, with
or without cause, at any time on 30 calendar days’ prior written notice to Vendor.





8










 







     10.3 Survival. The following shall survive the termination of this Agreement:
(a) provisions of Sections 1, 2.1, 2.4, 3, 7.3, 8, 9, 10.3, 10.4 and 12 and (b) any other
provisions of this Agreement necessary to interpret the respective rights and obligations of the
parties hereunder.



     10.4 Continuing License Rights. The license rights in the Materials granted under
this Agreement shall survive any termination of this Agreement in perpetuity in accordance with the
express terms of this Agreement, solely for the purpose of allowing Insurint and other Users to
continue to provide Materials-based services to and otherwise support any of its or the Insurint
Customers who have agreed to sublicense or otherwise receive the benefit of the Materials or
receive any Materials-based products, solutions or services, prior to the effective date of such
termination, except to the extent Insurint has requested, and received, a refund of all amounts
payable hereunder.



11. CONSULTING SERVICES




     11.1 Use of Contractor. Vendor agrees to make Pete Gries (“Primary
Contractor”) available to Insurint for the purpose of providing technical assistance and
assistance in design, development and implementation, programming, training, consulting, project
management and other related services as designated by Insurint and Primary Contractor from time to
time (the “Contractor Services”) for a period of 12 months following the Effective Date (the
“Initial Contractor Period”). Primary Contractor shall provide the Contractor Services as
necessary and at the request of Insurint, and shall be paid directly by Insurint. In the event
that Primary Contractor becomes unavailable or unable to provide the Contractor Services for any
reason at any time before or during the Initial Contractor Period, Vendor agrees to make available
to Insurint another contractor with similar skills and experience (“Secondary Contractor”)
for the purpose of providing the Contractor Services to Insurint.



12. MISCELLANEOUS PROVISIONS




     12.1 Noncompetition. Vendor shall not, directly or indirectly, incorporate any
Insurint Data or Deliverables into the Materials for delivery to any third-party or for use in
Vendor’s existing and future business or operations, nor may Vendor create a product that is
substantially similar with any product incorporating any of the Deliverables.



     12.2 Independent Contractor. In making, and performing under, this Agreement, Vendor
shall be deemed to be acting as an independent contractor of Insurint and neither Vendor nor its
employees shall be deemed an agent, legal representative, joint venturer or partner of Insurint.
Neither party is authorized to bind the other to any obligation, affirmation or commitment with
respect to any other person or entity. Neither party’s employees, consultants or agents are
employees, consultants or agents of the other party by virtue of this Agreement and neither party’s
employees shall be entitled to participate in any of the other party’s employee benefits. Neither
party shall be responsible for payment of workers’ compensation, disability benefits or
unemployment insurance, or for withholding or paying employment-related taxes on behalf of the
other party or its employees, consultants or agents.



     12.3 Assignment; Binding Effect. Vendor may not assign, delegate or transfer, by
operation of law or otherwise, this Agreement (in whole or in part), or any of Vendor’s obligations
hereunder, without the prior written consent of Insurint, which consent shall not be unreasonably
withheld or delayed. Insurint may assign, delegate or transfer, by operation of law or otherwise,
all of its rights under this Agreement to an affiliate or subsidiary of Insurint or to any Person
who purchases all or substantially all of the business or assets of Insurint to which this
Agreement relates, provided that such Person agrees in advance and in writing to be bound by the
terms, conditions and provisions of this Agreement. Subject to the foregoing, all of the terms,
conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of
each party’s successors and permitted assigns. Any assignment, delegation, or transfer in
violation of this provision shall be void and without legal effect.



     12.4 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this
Agreement by Vendor are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the
United States Bankruptcy Code, licenses of rights to “intellectual property” as defined under
Section 101 of the Bankruptcy Code. The parties agree that Insurint or other Users, of such
license rights under this Agreement, shall retain and may fully exercise all of their rights and
elections under the Bankruptcy Code consistent with this Agreement. Pursuant to Section 365(n)(4)
of the United States Bankruptcy Code, Insurint or other Users request that Vendor and its trustees
perform this Agreement, provide to Insurint or other Users all applicable intellectual property,
and not interfere with the rights of the Insurint or other Users as provided in this Agreement.



     12.5 Third Party Beneficiaries. Except as expressly stated herein, nothing in this
Agreement shall confer any rights upon any Person other than the parties and the other Users and
their respective successors and permitted assigns.



9









 





     12.6 Use of Name. Neither party shall use the name(s), trademarks, trade names,
service marks, or other marks of the other party, whether registered or not, in publicity releases
or advertising or in any other manner, including company lists, marketing lists or client lists,
without securing the prior written approval of an authorized representative of the other party.
Further, Vendor shall not provide any Insurint contact or key person information to any affiliate
of Vendor or any third party, unless Insurint has approved such in advance. Notwithstanding
anything to the contrary contained in this Agreement, in the event of any violation of this Section
12.6, the non-defaulting party shall have, in addition to any other rights and remedies, the right
and remedy of applying to any court of competent jurisdiction for an injunction to restrain the
defaulting party from continuing the violation.



     12.7 Governing Law, Dispute Resolution. Any dispute between the parties arising out
of or relating to this Agreement, including with respect to the interpretation of any provision of
this Agreement and with respect to the performance by Vendor or Insurint, shall be resolved as
provided in this Section 12.7.



          12.7.1 Prior to instituting formal proceedings, Insurint and Vendor shall attempt to resolve
all disputes arising out of or relating to this Agreement through internal escalation to senior
executives that do not dedicate substantial attention to the daily performance of this Agreement.
If the Parties are unable to resolve any disputes after compliance with such informal escalation
processes, either party shall be permitted to institute formal proceedings pursuant to Section
12.7.2. This Section 12.7.1 shall not be construed to prevent a party from instituting: (i) formal
proceedings earlier to avoid the expiration of any applicable limitations period; (ii) claims for
injunctive relief or other equitable relief, if necessary to protect its interests pending
completion of any informal escalation process; or (iii) proceedings to preserve a superior position
with respect to other creditors. Nothing in this Agreement shall limit either party’s right to any
other remedies in equity or at law, including the recovery of damages.




          12.7.2 For all litigation that may arise with respect to this Agreement, each party expressly
consents to the jurisdiction of the state or federal courts in the Commonwealth of Pennsylvania and
hereby further irrevocably waive any claim that any such court lacks jurisdiction over it, and
agrees not to plead or claim, in any legal action or proceeding with respect to this Agreement
brought in any of the aforesaid courts, that any such court lacks jurisdiction over it. The
parties hereby irrevocably waive any objection that it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out of or in connection with this
Agreement the courts referred to in this Section and hereby further irrevocably waive and agree not
to plead or claim in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum. The parties further irrevocably consent to the service
of process from any of the aforesaid courts by mailing copies thereof by registered or certified
mail, postage prepaid, to such party at its address set forth in the opening paragraph of this
Agreement, with such service of process to become effective ten days after such mailing.




          12.7.3 This Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without reference to its choice of law principles and without regard
to the United Nations Convention on the International Sale of Goods.




     12.8 Notices.



          12.8.1 Any notice required to be given or delivered to either party under the terms of this
Agreement shall be in writing and addressed to such party at the address indicated below or such
other address as such party may designate, in writing, from time to time.




	 	 	 	 	 
	 

	 	In the case of Insurint:
	 	c/o Health Benefits Direct Corporation
	 

	 	 	 	5 Radnor Corporate Center
	 

	 	 	 	Suite 555
	 

	 	 	 	Radnor, Pennsylvania 19087
	 

	 	 	 	Attn: P. Pete Zografakis
	 
	 	 	 	 
	 

	 	In the case of Vendor:
	 	Realtime Solutions Group, L.L.C.
	 

	 	 	 	20 North Wacker Drive, Suite 4000
	 

	 	 	 	Chicago, Illinois 60606
	 

	 	 	 	Attn: Gregg Antenen






10









 





          12.8.2 All notices shall be deemed to have been given or delivered when actually received.




          12.8.3 A party may from time to time change its address or designee for notification purposes
by giving the other party prior written notice of the new address or designee and the date upon
which it shall become effective.




     12.9 Entire Agreement; Amendment. This Agreement sets forth the entire understanding
of the parties with respect to the subject matter hereof. This Agreement supersedes all prior or
contemporaneous representations, discussions, negotiations, letters, proposals, agreements and
understandings between the parties hereto with respect to the subject matter hereof, whether
written or oral. This Agreement may be amended, modified or supplemented only by a written
instrument duly executed by an authorized representative of each of the parties.



     12.10 Severability. Any provision of this Agreement that is determined to be invalid
or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining
provisions of this Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. If a court of competent jurisdiction declares any provision of this Agreement
to be invalid or unenforceable, the parties agree that the court making such determination shall
have the power to reduce the scope, duration, or area of the provision, to delete specific words or
phrases, or to replace the provision with a provision that is valid and enforceable and that comes
closest to expressing the original intention of the parties, and this Agreement shall be
enforceable as so modified.



     12.11 No Waiver. No term or provision of this Agreement shall be considered waived by
either party, and no breach consented to by either party, unless such waiver or consent is in
writing and signed on behalf of the party against whom it is asserted. No consent to or waiver of
a breach of this Agreement by either party, whether express or implied, shall constitute a consent
to, waiver of or excuse for any other, different or subsequent breach of this Agreement by such
party.



     12.12 Agreement is Controlling. If there is any inconsistency or conflict between the
provisions of the main body of this Agreement and the provisions of any exhibit hereto, the
provisions of the main body of this Agreement shall be controlling and shall govern, except to the
extent such provisions are expressly superseded by the provisions of such Exhibit.



     12.13 Counterparts; Execution and Delivery. The main body of this Agreement may be
executed in two counterparts, both of which shall constitute one and the same instrument. Each
such counterpart shall be deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart. Each such document shall be
deemed executed by both parties when any one or more counterparts hereof or thereof, individually
or taken together, bears the original or facsimile signatures of each of the parties.


[Remainder of page intentionally left blank; signature page follows on next page]




11









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.



	 	 	 	 	 
	INSURINT CORPORATION	 	 
	 
	By:
	 	/s/ Charles Eissa	 	 
	 

	 	 

	 	 
	Name: Charles Eissa	 	 
	Title: President	 	 
	 
	 	 	 	 
	REALTIME SOLUTIONS GROUP, L.L.C.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Gregg Antenen	 	 
	 

	 	 

	 	 
	Name: Gregg Antenen	 	 
	Title: Managing Director	 	 
	 
	 	 	 	 
	HEALTH BENEFITS DIRECT CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	/s/ Charles Eissa	 	 
	 

	 	 

	 	 
	Name: Charles Eissa	 	 
	Title: President and Chief Operating Officer	 	 






12









 





Exhibit A

Software and Fees



1. Description of Software: Realtime Solutions Group’s Straight Through Processing
software (“Realtime STP”) and any updates and modifications and improvements thereto. Realtime
STP includes access to electronic signature and third party data capabilities which will have
separate transaction charges for their use.



2. License Fees and Payment Schedule: The License Fee for the installation of the
Software and use thereof by the users hereunder is $550,000. The License Fee is due and payable at
the time the Agreement is executed and the Materials have been delivered to Insurint and shall be
paid with 216,612 unregistered shares of HBDC’s Common Stock (the “Shares”). Concurrently
with the delivery of the Shares, the parties shall enter into a Registration Rights Agreement,
which will provide for piggyback registration rights for the Shares. Transaction fees for use of
the electronic signature and third party data capabilities of the system are not included in this
License Fee.



3. Maintenance Fees and Payment Schedule: Maintenance Services shall be provided by
Vendor to Insurint at no charge for the Initial Period. Following the Initial Period, Vendor shall
provide, at the option of Insurint, further Maintenance Services for an annual fee of $100,000,
payable in cash or in additional shares of HBDC Common Stock (the “Additional Shares”).
The number of Shares to be delivered shall be determined by dividing $100,000 by the average of the
high and low prices of HBDC’s Common Stock during the ten trading day period ending on the trading
date three days preceding the delivery of the Additional Shares. Any fractional shares shall be
paid in cash. The Additional Shares shall be included in the Registration Rights Agreement.




13









 





Exhibit B

Professional Services



1. Professional Services.




     1.1 Provision of Professional Services. Insurint may retain Vendor to
perform Professional Services and prepare Deliverables, in each case as described in individual
Statements of Work agreed upon and entered into by the parties from time to time, and Vendor agrees
to furnish the Professional Services and prepare the Deliverables on the terms and subject to the
conditions set forth in the Agreement and this Exhibit B.



     1.2 Statements of Work (each an “SOW”).



          1.2.1 The initial SOW is attached hereto as Attachment B-1. Additional SOWs
shall be in a form substantially similar to the initial SOW, with such changes as are necessary to
reflect the details of the project that is the subject to the applicable additional SOW and such
other changes as are agreed to by Insurint and Vendor therein.




          1.2.2 Each SOW shall provide a schedule (which may include, without limitation,
milestones dates) for completion of the Professional Services and Deliverables required thereunder.
Each SOW shall detail the specifications applicable to any Deliverables required under such SOW.
Vendor shall provide the Professional Services at the locations specified in the applicable SOW.




     1.3 Changes in Scope. Insurint may request changes that affect the scope or
duration of the Professional Services under any SOW, including changes in the specifications for
the Deliverables. If Insurint requests such a change, Vendor shall promptly notify Insurint if
Vendor believes that an adjustment in the fees for Professional Services or an adjustment to the
schedule is required. Insurint also may request a change in the schedule without changing the
scope of the Professional Services. In either case, the parties shall negotiate in good faith a
reasonable and equitable adjustment in the fees for Professional Services, the schedule, and the
specifications, as applicable, and shall confirm such changes in a writing signed by the parties.
Vendor shall continue to furnish Professional Services pursuant to the existing SOW until such
changes have been agreed to by the parties in writing.



     1.4 Project Managers. Each party shall designate a “Project Manager” under
each SOW who shall be the principal point of contact between the parties for all matters relating
to that SOW. Each party may designate a new Project Manager by written notice to the other party.



     1.5 Customer’s Facilities; Compliance with Rules and Policies. When
Professional Services are provided at Insurint’s facility, Insurint shall provide reasonable
workspace and other facilities consistent with the requirements of the Professional Services to be
provided under the applicable SOW.



          While at Insurint’s facilities, Vendor and its personnel shall observe and follow Insurint’s
work rules, policies, and standards as the same are communicated from time to time, including those
rules, policies, and standards of Insurint relating to security of and access to data, facilities,
telephone systems, electronic mail systems, and computer systems.




          Vendor acknowledges and agrees that upon ten (10) days prior written notice to Vendor,
Insurint may conduct an audit of all copies of Vendor’s records relating to Vendor’s obligations
under this Section 1.5 to determine if Vendor is in compliance with the terms and
conditions hereof. The audit shall be conducted during Vendor’s normal business hours and
conducted so as to minimize any interference with Vendor’s normal business. In the event any such
audit discloses any breach of the terms of Section 1.5 by Vendor, Vendor shall, in addition
to such other rights and remedies as may be available to Insurint as the result of such breach, pay
to Insurint the full costs and expenses of such audit.




     1.6 Changes in Vendor Personnel Requested by Insurint. If Insurint becomes
dissatisfied with any of Vendor’s personnel providing the Professional Services, Insurint may
notify Vendor of the details of its dissatisfaction, and the parties shall cooperate to remedy the
problem as soon as reasonably possible.


2. Acceptance Testing.




     2.1 Delivery of Deliverables. When Vendor has completed a Deliverable under
an SOW, Vendor shall deliver such Deliverable (in source code, object code and byte code form) to
Insurint so that Insurint may determine whether the Deliverable substantially conforms to the
applicable specifications using (a) such acceptance testing criteria as may be set forth in the
applicable SOW, or (b) if there are no such acceptance testing criteria set forth in the applicable
SOW, then such tests and procedures as Insurint may deem appropriate.



14









 





     2.2 Acceptance Testing Period. Insurint shall have 30 days after receipt of
each Deliverable, and again upon the Delivery of the final Deliverable (or certification by Vendor
that it has met the final milestone under the applicable SOW, if any) to test the Deliverable (the
“Deliverable Acceptance Testing Period”) to determine whether it substantially conforms
with the applicable specifications, and with respect to the final Deliverable, to determine whether
the Deliverables as a whole substantially conform to the applicable specifications. If Insurint
notifies Vendor in writing of any substantial Nonconformities in any Deliverable within the
applicable Deliverable Acceptance Testing Period, Vendor shall make continuous, commercially
reasonable efforts to repair or replace such item within 10 days of its receipt of such notice of
Nonconformities and shall deliver a Certificate of Compliance to Insurint to indicate that Insurint
may begin retesting.



     2.3 Acceptance. If Insurint does not notify Vendor of any Nonconformities
within the applicable Deliverable Acceptance Testing Period, Insurint shall be deemed to have
accepted the Deliverable. Should Vendor fail to correct a Nonconformity within 30 days of
receiving written notice of such Nonconformity, Insurint may terminate the applicable SOW,
whereupon Vendor shall refund to Insurint the fees for Professional Services pre-paid to Vendor for
such Deliverable.



     2.4 No Release; No Waiver. Acceptance of any particular Deliverable by
Insurint in accordance with the provisions of this Section 2 shall not, and shall not be
deemed to, release Vendor from its warranty or other obligations set forth in this Agreement, or
constitute a waiver by Insurint of any of its rights under this Agreement.


3. Warranty Period. The Deliverable Warranty Period shall begin on the date the
Deliverable (and its Documentation) is “accepted” by Insurint and shall terminate 12 months
thereafter. If Insurint, within the Deliverable Warranty Period, notifies Vendor of any
Nonconformity in the Deliverable, then Vendor shall use commercially reasonable efforts to correct
the Nonconformity. If Vendor is unable to correct the Nonconformity within 30 days, Vendor shall,
if so requested by Insurint, promptly refund to Insurint any fees paid by Insurint for the
defective Deliverable.



4. Fees, Invoicing and Payment. During the term of each SOW, Insurint shall pay
to Vendor the fees for Professional Services set forth in the applicable SOW. The Professional
Services may be performed by Vendor on either a time and materials basis or on a fixed price basis,
or a combination thereof, in each case as set forth in the applicable SOW. Vendor acknowledges
that Insurint shall not be obligated to pay any amounts above those set forth in the applicable
SOW.



5. Hire Restriction. Unless otherwise mutually agreed to by the parties in
writing, Insurint agrees not to hire or to solicit the employment of any employees or consultants
of Vendor during the term of this Agreement or the performance of any SOW for the term of such
SOW and for 12 months thereafter. Unless otherwise mutually agreed to by the parties in writing,
Vendor agrees not to hire or to solicit the employment of any of the Insurint’s employees or
consultants assigned to Vendor to perform services under any SOW during the term of such SOW and
for 12 months thereafter.



6. Termination.




     6.1 Termination of SOW. Insurint may terminate any SOW hereunder at any time
on written notice to Vendor if Vendor breaches any material term or condition of this Exhibit
B and does not cure such breach within 30 days following its receipt of written notice thereof
from the terminating party. Without limiting the foregoing, Insurint shall have the right at any
time, with or without cause, to terminate any SOW upon providing 10 days’ prior written notice to
Vendor.



     6.2 Upon Termination. Upon termination of any SOW, Vendor shall immediately
deliver to Insurint any Deliverables specified in the terminated SOW, whether any such Deliverable
has been partially or fully completed, and Insurint shall pay to Vendor any fees for Professional
Services rendered up to the date of termination.




15









 








Exhibit C

Maintenance Availability and Response Times




     See attached.



16









 





Exhibit C




MAINTENANCE SERVICES



1. TERM. Vendor shall provide Maintenance Services to Insurint for the first 12
months from the date of acceptance of the Software (the “Initial Period”). At least 90 days prior
to the end of the Initial Period, Vendor shall notify Insurint that such period is about to expire.
Insurint may terminate Maintenance Services upon 30 days’ written notice. Subject to the
provisions of the Agreement allowing for termination, Vendor agrees, at the request of Insurint, to
offer Maintenance Services for at least 12 months beyond the Initial Period.



2. MAINTENANCE SERVICES.




     2.1 Definition of Problem. “Problem” shall mean a question or issue with
respect to, or a defect in or failure of, the Software (or, if applicable, its Documentation) to
operate in conformance with its applicable specifications and Documentation.



     2.2 Telephone Support; Defect Reporting. Insurint shall report any Problems
to Vendor by telephone or by email as described in this paragraph. Vendor shall provide telephone
assistance to Insurint with respect to the identification and resolution of Problems, and with
respect to the general operation of the Software, at telephone numbers designated by Vendor from
time to time. Telephone support provided by Vendor will be available from 9:00 am to 6:00 pm
Eastern Time Monday through Friday.



     2.3 Problem Fixes.



          2.3.1 Classification of Problems. Based on communications between Insurint
and Vendor under Section 2.2 above, Insurint shall determine, in accordance with the
following table, the “Severity Level” of the Problem.




	 	 	 
	Severity Level	 	Definition
	 
	1

	 	A Problem that causes the Software to crash or be
unavailable for use and which has no acceptable
work-around.
	 
	 	 
	2

	 	A Problem that affects multiple users of the Software
and prevents effective use of an essential feature or
essential features of the Software, but which does not
cause the Software to be unavailable for use in whole.
	 
	 	 
	3

	 	A Problem that affects productivity or ease of use of
the Software and for which there is typically a work
around.
	 
	 	 
	4

	 	A Problem that does not materially affect Insurint’s
ability to use the Software (e.g., user interface
inconveniences).





The parties agree to consider any Problem negatively impacting the security of the Software, or the
security of Insurint’s systems as a result of the Software, as a Severity Level 1 Problem.




     2.4 Problem Response and Resolution. Based on the “Severity Level” of the
Problem, each of Vendor and Insurint shall take the following actions:



	 	 	 	 	 
	Severity Level	 	Vendor Responsibilities	 	Insurint Responsibilities
	 
	1

	 	Acknowledge and assign
immediately. Vendor’s
client support and
production support
teams will work
continuously until
fixed, 24x7 if not
resolved by the close
of the business day.
	 	Call at time of opening ticket (email not acceptable for Severity
1). Be available to
answer questions,
provide information, and
receive and install code
fix immediately, 24x7 if
not resolved by the
close of the business
day.






17









 






	 	 	 	 	 
	Severity Level	 	Vendor Responsibilities	 	Insurint Responsibilities
	 
	2

	 	Acknowledge and assign
immediately. Vendor’s
client support and
production support
teams will work
continuously within
normal business hours
until resolved.
	 	Be available to answer
questions, provide
information within 4
hours of request.
Install/test fix
providing feedback.
	 
	 	 	 	 
	3

	 	Acknowledge within one
business day. Ticket
will be assigned when
possible, based on the
priority set by
Insurint and Vendor.
	 	Provide information and
answer questions within
one business day.
	 
	 	 	 	 
	4

	 	Acknowledge within one
business day. Ticket
will be assigned when
possible, based on the
priority set by
Insurint and Vendor.
	 	Provide information and
answer questions within
three business days.






     2.5 Updates. Vendor will provide Insurint with all new releases,
enhancements, updates, corrections, patches, bug-fixes, or other modifications (regardless of how
characterized) to the Software (and, if applicable, to the source code to the Software) that are
distributed, designed, developed, or created by or for Vendor (each, an “Update”), and shall
provide such Updates to Insurint at the same time as Vendor provides them to other users or
licensees of the Software. Vendor will ensure, by providing appropriate Updates, that the Software
contains security features that are consistent with industry best practices. Other than the
Maintenance Fees (if any), Vendor shall not charge Insurint for any Updates while Maintenance
Services are in effect. All Updates shall be deemed a part of the Software for the purposes of the
licenses granted by Vendor to Insurint under the Agreement. The foregoing sentence shall survive
any termination of this Exhibit C.



     2.6 Compliance with Insurint Policies. While at Insurint’s facilities,
Vendor and its personnel shall observe and follow Insurint’s work rules, policies, and standards as
the same are communicated to Vendor from time to time, including those rules, policies, and
standards of Insurint relating to security of and access to data, facilities, telephone systems,
electronic mail systems, and computer systems.




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