Exhibit 10.9


 


SERVICES AGREEMENT


 


THIS CONSULTING
SERVICES AGREEMENT (this “Agreement”) is made this 26th day of
October, 2009, by and between OneBeacon Insurance Company (“OneBeacon”), a
Pennsylvania corporation, on behalf of itself and its affiliates and
subsidiaries, with a principal place of business at One Beacon Lane, Canton,
MA, 02021 and  Small Army, Inc.,             (“Consultant”), an S-corporation,
with an address at 20 Newbury St. Boston, MA 
02116.  If there is any conflict
between the terms of this Agreement and any Schedules, the terms and conditions
of such Schedules shall control.


 


1.             SCOPE OF SERVICE


 


Consultant
agrees to provide to OneBeacon the services (the “Services”) and deliverables
(the “Deliverables”) described in the attached Schedule A, Statement of Work.


 


2.             TERM


 


Subject to termination in
accordance with Section 11 below, this Agreement shall remain in full
force and effect for a period of three (3) year or until completion of the
Services, whichever is earlier or in accordance with Termination, Section 11.  This Agreement may be extended by mutual
written agreement of the parties.


 


3.             FEES, PAYMENT & EXPENSES


 


3.1           Fees -  In consideration of the Services to be performed by
Consultant, Consultant shall be entitled to compensation as described in the
attached Schedule A.  All other
compensation shall be paid to Consultant within 30 days after receipt of
Consultant’s properly documented invoice or, as applicable, OneBeacon’s
acceptance of any Deliverables as defined in Section 7.


 


3.2           Expenses -  Except as otherwise agreed to in this Agreement or the
Statement of Work, Consultant shall be responsible for all costs and expenses
incident to the performance of services.


 


4.             CONFIDENTIALITY


 


Each
party acknowledges that it may periodically disclose to the other party certain
information that the disclosing party regards as proprietary and confidential
(the “Confidential Information”). 
Accordingly, the receiving party will take commercially reasonable
measures to prevent unauthorized disclosure including, but not limited to,
employment of precautions for the protection of Confidential Information
received which are no less stringent than those employed by the receiving party
to protect its own proprietary information. “Confidential Information” shall
mean any information (a) concerning customers, trade secrets, methods,
processes, procedures or any financial or business information of OneBeacon, or
(b) which is identified as proprietary or confidential.


 


With respect to all such
Confidential Information to be kept confidential pursuant to this Section,
Consultant shall (a) not provide or make available the Confidential
Information to any person other than those employees who have a need to know in
connection with the performance of the services; (b) not reproduce the
Confidential Information except for use reasonably necessary to the performance
of this Agreement; (c) return or destroy all such Confidential
Information, and any copies thereof, upon the request of OneBeacon or
termination of this Agreement.


 


Confidential Information
shall not include (a) information that is or becomes a part of the public
domain through no act or omission of the receiving party; (b) was in the
receiving party’s lawful possession prior to the disclosure and had not been
subject to any limitation on disclosure; (c) was received from a third
party which the receiving party reasonably believed had no obligation of
secrecy with respect thereto; (d) was independently developed by the
receiving party without use of the information disclosed under this Agreement;
or (e) is required to be disclosed by a court or other governmental
authority after reasonable 


 

















 


notice is given to the
other party, provided that no notice is required to be given by OneBeacon with
respect to disclosures to regulators.


 


5.             PRIVACY


 


Consultant has a
responsibility to protect the privacy of OneBeacon’s employees, policyholders,
customers, agents, and contractors, and all personally identifiable information
including, but not limited to, name, social security number, driver’s license
number, and financial account information (“PII”) shall be held in
confidence.  Consultant shall comply with
all state and federal laws and regulations, including the provisions of the
Gramm-Leach-Bliley Act (“GLB”), Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), Office of Foreign Assets Control (OFAC), state data
breach laws, and all other applicable laws and regulations.


 


Consultant must have
adequate safeguards in place to comply with federal, state and local laws and
regulations.  If, in the opinion of
OneBeacon, Consultant’s security procedures are not compliant, or if OneBeacon
identifies procedures that may lead to the compromise or unauthorized access to
personal information, Consultant agrees to cooperate with OneBeacon to adopt
mutually acceptable security procedures within a specified timetable at no
charge to OneBeacon


 


Consultant agrees to
notify OneBeacon by sending an email to The Information Privacy and Security
Officer at privacyandsecurity@onebeacon.com within 24 hours after Consultant
becomes aware of a breach, or threatened breach, of PII or unauthorized access
to its, or a third party’s, computer systems and/or unencrypted personal data
with respect to the services provided under this Agreement.  Consultant shall set forth in detail the
nature of the security breach and the measures taken by Consultant to cure the
breach.  Consultant and OneBeacon will thereafter
jointly decide what action to take, which may include, but not be limited to,
notifying the appropriate state reporting agency.


 


6.             INTELLECTUAL PROPERTY RIGHTS


 


All Deliverables under
this Agreement shall be considered work(s) made for hire by Consultant for
OneBeacon and shall belong exclusively to OneBeacon and its designees.  If, by operation of law, any of the
Deliverables (including any related intellectual property rights) are not owned
in their entirety by OneBeacon automatically upon creation by Consultant, then
Consultant agrees to assign, and hereby assigns, to OneBeacon and its designees
the ownership of such Deliverables, including all related intellectual property
rights.  Deliverables include, but are
not limited to, software, specifications, documentation, enhancements,
prototypes, reports, and any other materials or documents produced in the
course of performing the services.


 


7.             WARRANTIES


 


The Services will be
performed by appropriately qualified and trained personnel with due care and
diligence and in accordance with all applicable professional standards for the
field of expertise. Any Deliverables under this Agreement shall be free from
defects in material, workmanship and design; shall conform to all applicable
specifications, drawings, samples and descriptions; shall be suitable for their
intended purposes; and, shall be free from all liens and encumbrances.


 


8.             COMPLIANCE WITH LAWS & STANDARDS OF
CONDUCT


 


Consultant shall comply
with all applicable federal and state laws and regulations governing the
Services and Deliverables.


 


9.             EXCUSE OF PERFORMANCE


 


Neither party shall be
liable for any failure to perform its obligations under this Agreement during
any period in which such failure to perform arises directly or indirectly out
of an act of nature, acts of the public enemy, embargoes, insurrection, riot,
or the intervention of any government authority (collectively, “Excusable Cause”),
provided that the party so delayed immediately notifies the other party of such
delay in writing and uses its best efforts to minimize the adverse effect of
such events.


 


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10.           CONSULTANT INDEMNITIES


 


Indemnification - Consultant agrees to indemnify, defend
and hold OneBeacon harmless from any and all claims, actions, liabilities,
damages, costs and expenses, including reasonable attorneys’ fees and expenses,
arising out of (a) any third party claims of infringement of any patents,
copyrights, license, trademarks, service marks or any other intellectual
property right or (b) the acts and omissions of its employees, subcontractors,
and/or agents.  If Consultant reasonably
believes that a Deliverable constitutes infringement, Consultant shall, at
Consultant’s expense procure for OneBeacon the right to continue to use the
Deliverable or replace or modify the Deliverable so that it is not infringing.


 


Conditions of Indemnity - The indemnities contained in this Section 10
are conditioned upon (i) notice by OneBeacon to Consultant as soon as
practicable of any claim, and (ii) Consultant’s right to control the
defense of all such claims, related lawsuits or proceedings.


 


11.           TERMINATION


 


OneBeacon may terminate
all or any portion of this Agreement, with or without cause, at any time upon
written notice to Consultant.  Upon
receipt of notice of termination, Consultant shall immediately stop all
activities associated with this Agreement and forward to OneBeacon all finished
work or work in process in Consultant’s possession.  OneBeacon shall have no further obligation or
liability to Consultant other than for work performed and accepted by OneBeacon
through the date of termination, which is the date Consultant is deemed to have
received notice.


 


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12.           INSURANCE REQUIREMENTS


 


Consultant agrees to
maintain insurance throughout any term of this Agreement at its sole cost from
insurance companies and in a form satisfactory to OneBeacon in accordance with
the limits of liability required by OneBeacon. 
If insurance is required by OneBeacon, certificates of insurance must be
furnished to OneBeacon upon execution of this Agreement, and any future change
or cancellation shall not be valid without 30 days prior written notice to
OneBeacon.  Consultant shall also furnish
OneBeacon, promptly upon receipt by Consultant, renewal notices regarding such
insurance policies.


 


13.           LIMITATION OF LIABILITY


 


IN NO EVENT SHALL EITHER PARTY BE
LIABLE UNDER ANY CLAIM, DEMAND OR ACTION (WHETHER ARISING IN CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS, LOSS OF USE, OR LOSS FROM BUSINESS DISRUPTION,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


14.           GENERAL PROVISIONS


 


14.1         Entire Agreement; Validity; Amendments; Waiver; Survival. 
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter and supersedes all prior agreements, whether oral
or written.  The invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision. 
No amendment to this Agreement shall be binding on either party unless
such amendment is in writing and executed by authorized representatives of both
parties.  A waiver by either party of a
breach of any of the terms or provisions of this Agreement shall not operate or
be construed as a waiver of any subsequent breach. The provisions of Sections 4
(Confidentiality) 5 (Privacy) and 10 (Consultant Indemnities) shall survive the
termination or expiration of this Agreement regardless of the reason for such
termination.


 


14.2         Assignment - OneBeacon may assign its interests under this Agreement to a successor
in interest, provided that such successor in interest fulfills the obligations
under this Agreement.  In no event shall
Consultant subcontract, delegate or assign its rights and responsibilities
under this Agreement without OneBeacon’s written consent.


 


14.3         Notices -
Except as otherwise specified in this Agreement, all notices or other
communications under this Agreement shall be deemed to have been duly given
when made in writing and delivered in person, via a nationally recognized
overnight carrier or deposited in the United States mail as certified mail with
return receipt requested, postage prepaid, and addressed to the notice
recipient at the following address or such other address as specified in
writing by the parties:


 


	
  “OneBeacon”

  	
   

  	
  “Consultant”

  
	
   

  	
   

  	
   

  
	
  OneBeacon Insurance
  Company

  	
   

  	
  Small Army, Inc,

  
	
  One Beacon Lane

  	
   

  	
  20 Newbury St,

  
	
  Canton, MA 02021

  	
   

  	
  Boston, MA 02116

  
	
   

  	
   

  	
   

  
	
  Attn:

  	
   

  	
   

  	
  Attn: Office Manager

  
	
   

  	
   

  	
   

  
	
  Copy to:

  	
   

  	
  Copy to:

  
	
   

  	
   

  	
   

  
	
  OneBeacon Insurance
  Company

  	
   

  	
  Small Army, Inc.

  
	
  OneBeacon Lane

  	
   

  	
  20 Newbury St.

  
	
  Canton, MA 02021

  	
   

  	
  Boston, MA

  
	
  Attn: Corporate
  Contracts

  	
   

  	
  Attn: Jeff Freedman

  
				



 


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14.4         Governing Law - This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, including all matters of
construction, validity, performance and enforcement.


 


14.5         Independent Contractor - The parties are independent contractors, and nothing
in this Agreement shall be deemed to cause this Agreement to create an agency,
partnership, or joint venture between the parties.  Consultant shall pay all wages, salaries, and
other amounts due its employees in connection with this Agreement and shall be
responsible for all reports and obligations, including withholding of  taxes. 
In the  event Consultant, as a result of
performing services under this Agreement, is deemed to have any right to any
benefits under any employee benefit plans or programs, Consultant hereby waives
any such rights to benefits.


 


14.6         Background Check - Prior to an assignment by Consultant of a contract
employee, Consultant shall, subject to applicable law, have an employment,
education, and criminal background check performed on the employee or
contractor.  Consultant will not assign
an employee or contractor if the criminal background check reveals that an
employee or contractor has, as an adult in the United States, been convicted of
a felony.


 


14.7         No Publicity -  Consultant agrees to submit to
OneBeacon all proposed advertising and other publicity matter relating to any
service provided by Consultant in which OneBeacon’s name is mentioned or
language used from which Consultant’s connection of OneBeacon can be
inferred.  Consultant agrees not to
publish or use such advertising or publicity matter without the prior written
consent of OneBeacon, which consent shall not be unreasonably withheld.


 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed by their duly authorized
representatives, on the date and year first above-written.


 


	
  ONEBEACON INSURANCE COMPANY

  	
   

  	
  CONSULTANT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Carmen Duarte

  	
   

  	
  /s/ Jeff Freedman

  
	
  Signature

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Carmen Duarte

  	
   

  	
  Jeff Freedman

  
	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
  CEO

  
	
  VP Corp. Communications

  	
   

  	
   

  
	
  Title

  	
   

  	
  October 26, 2009

  
	
   

  	
   

  	
   

  
	
  11.03.09

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  



 


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Schedule
A


 


Statement
of Work


 


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