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Exhibit 10.8
FORM OF
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("AGREEMENT"), dated as of December
__, 2000, is by and between Aetna U.S. Healthcare Inc. a Pennsylvania
corporation located at 780 Jolly Road, Blue Bell, PA ("SPINCO"), and Aetna
Inc., a Connecticut corporation located at 151 Farmington Ave., Hartford, CT
06156 ("AETNA").
RECITALS
WHEREAS, Spinco and Aetna have entered into the distribution
agreement ("Distribution Agreement") as contemplated by the Agreement and Plan
of Restructuring and Merger, dated July 19, 2000, by and among ING GROEP N.V.,
a corporation organized under the laws of the Netherlands, ING AMERICA
INSURANCE HOLDINGS, INC., a Delaware corporation, ANB ACQUISITION CORP., a
Connecticut corporation, and Aetna;
WHEREAS, Spinco is the sole owner of and holds all rights, title
and interest in certain software that performs functions for the Aetna
Business as well as Spinco's businesses; and
WHEREAS, subject to the terms and conditions hereinafter set forth,
Spinco and Aetna desire to enter into a limited license agreement so that
Aetna will be able to continue to run the software in the Aetna Business.
NOW THEREFORE, in consideration of the transactions contemplated by
the Distribution Agreement and the Agreement and Plan of Restructuring and
Merger, and in reliance upon the representations, warranties, conditions and
covenants contained herein, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 Capitalized terms used without definition in this Agreement have
the respective meanings assigned to them in the Distribution
Agreement.
1.2 "SOFTWARE" means the computer programs set forth on Schedule 1, in
source code and object code form, together with related
documentation.
2. GRANT OF LICENSE.
2.1 Subject to the terms and conditions of this Agreement, Spinco
hereby grants to Aetna, and Aetna hereby accepts from Spinco, a
perpetual, non-exclusive, sub-licensable (only to Aetna Affiliates
and only to the extent consistent with all of the termination
provisions contained in this Agreement), royalty-free, irrevocable
(except for Spinco's right to terminate in the event of Aetna's
breach, as described below) license to use, reproduce, display,
perform, modify and create derivative works of the Software solely
in connection with the Aetna Business.
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2.2 The license granted hereunder does not include any rights in
previous versions of the Software nor in any future versions of the
Software created by Spinco. Aetna may modify and/or create
derivative works of the Software and Aetna shall own such
modifications and derivative works, subject to Spinco's rights in
the Software.
3. DELIVERY.
3.1 As soon as reasonably practicable following the date hereof, Spinco
shall deliver to Aetna a copy of all source code and related
documentation of the Software in Spinco's possession on the
Distribution Date. The parties shall share equally the costs of
creating such copies.
4. NO OBLIGATIONS TO MAINTAIN OR SUPPORT.
4.1 Spinco shall have no obligation to provide Aetna with any upgrades,
updates, training, maintenance, error corrections or support for
the Software.
5. TAXES.
5.1 Aetna shall be responsible for all property taxes, sales taxes, use
taxes, and any other similar taxes or assessments properly levied
by any governmental authority upon the Software licensed and
delivered hereunder.
6. TERM AND TERMINATION.
6.1 Spinco may terminate the license granted herein in the event of a
material breach by any member of the Aetna Group or any Affiliate
of the Aetna Group that has not been cured within thirty (30), or
if substantial progress is being made ninety (90), days of written
notice by Spinco to Aetna. Nothing in this Section 6 shall be
deemed to limit Spinco's right to seek and obtain injunctive
relief, or any other right or remedy available at law or in equity,
in an appropriate case.
7. CONFIDENTIALITY.
7.1 Aetna acknowledges that the Software is proprietary and
confidential to Spinco.
7.2 Aetna agrees not to reveal or disclose the Software for any purpose
to any other person, or to use the Software for any purpose other
than as contemplated herein, without the prior written consent of
Spinco. Aetna agrees to maintain adequate security procedures and
take reasonable precautions (no less rigorous than Aetna takes with
respect to its own comparable confidential information) to prevent
misuse, unauthorized or inadvertent disclosure or loss of the
Software.
7.3 The Software may be disclosed pursuant to any statute, regulation,
order, subpoena or document discovery request, provided that prior
written notice of such disclosure is furnished to Spinco as soon as
practicable in order to afford Spinco an opportunity to seek a
protective order (it being agreed that if Spinco is unable to
obtain or does not seek a protective order and Aetna is legally
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compelled to disclose such information, disclosure of such
information may be made without liability).
7.4 Aetna shall notify Spinco immediately upon discovery of any
prohibited use or disclosure of the Software, or any other breach
of this Section 7 by Aetna, and shall fully cooperate with Spinco
to help Spinco regain possession of the Software and prevent the
further prohibited use or disclosure of the Software.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Each party represents and warrants to the other party,
respectively, as follows:
8.1.1 It is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization.
8.1.2 It has all requisite power and authority to execute and
deliver, and to perform its obligations under, this
Agreement.
8.1.3 The execution and delivery by it of this Agreement, and the
performance by it of its obligations hereunder, have been
duly authorized by all necessary corporate action on its
part.
8.1.4 This Agreement has been duly executed and delivered by it
and constitutes a valid and binding obligation of it,
enforceable against it in accordance with its terms, except
as such enforceability may be limited (a) against Spinco by
bankruptcy, insolvency, reorganization, rehabilitation,
liquidation, conservation and other laws affecting the
rights of creditors of insurance companies generally, (b)
against Aetna by bankruptcy, insolvency and other laws
affecting creditors' rights generally, or (c) against
Spinco and Aetna by general principles of equity (whether
considered in a proceeding at law or in equity).
8.2 Spinco represents and warrants that, to the best of its knowledge,
as of the date of this Agreement, (i) Spinco holds all right, title
and interest in and to the Software, and (ii) use of the Software,
as delivered by Spinco to Aetna, by Aetna will not infringe upon
any patent, copyright, trade secret or other intellectual property
right of any third party.
8.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SPINCO IS
PROVIDING THE SOFTWARE "AS IS" AND DOES NOT REPRESENT OR WARRANT
THAT SUCH SOFTWARE WILL OPERATE UNINTERRUPTED OR BE ERROR FREE OR
WILL OPERATE IN COMBINATION WITH ANY OTHER SOFTWARE PROGRAMS OR
DATA.
8.4 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, CONDITIONS, GUARANTEES OR REPRESENTATIONS, WHETHER
EXPRESS OR IMPLIED, MADE BY EITHER PARTY AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTIES, CONDITIONS,
GUARANTEES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW
OR IN FACT, ORAL
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OR IN WRITING WITH RESPECT TO THE SOFTWARE. EACH PARTY HEREBY
ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY, CONDITION,
GUARANTEE OR REPRESENTATION MADE BY THE OTHER EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT.
9. INDEMNIFICATION AND REMEDIES.
9.1 Aetna hereby agrees to indemnify, defend and hold each member of
the Spinco Group, their Affiliates and their respective directors,
officers and employees (the "SPINCO INDEMNITEES") harmless from
and against any and all Damages resulting from the use or
operation of the Software by Aetna or any person authorized by
Aetna, except for any such Damages arising within the scope of
Spinco's indemnification of Aetna under Section 9.2.
9.2 Spinco hereby agrees to indemnify, defend and hold each member of
the Aetna Group, their Affiliates and their respective directors,
officers and employees (the "AETNA INDEMNITEES") harmless from and
against any and all Damages (i) resulting solely from Spinco's
failure to have or maintain valid intellectual property rights in
the Software, as delivered by Spinco to Aetna, or (ii) arising out
of any third party claim that Aetna's or an Aetna sub-licensee's
use of the Software, as delivered by Spinco to Aetna, pursuant to
this Agreement infringes such third party's intellectual property
rights.
9.3 The indemnities referred to in the preceding two paragraphs shall
be in addition to and shall not supersede the indemnities set
forth in Article 4 of the Distribution Agreement, provided that if
any of the Aetna Indemnitees or the Spinco Indemnitees determines
that it is or may be entitled to indemnification pursuant to this
Agreement, the procedures set forth in Sections 4.04 to 4.06 of
the Distribution Agreement shall apply and, for this purpose, such
person shall be referred to as the "INDEMNIFIED PARTY" and Spinco
or Aetna, as the case may be, shall be referred to as the
"INDEMNIFYING PARTY."
9.4 Nothing in this Section 9 shall be deemed to limit a party's
entitlement to injunctive relief, or any other right or remedy
available at law or in equity, in an appropriate case.
10. MISCELLANEOUS.
10.1 Survival. Sections 5, 7, 8 and 9 of this Agreement, as well as the
provisions of Sections 10.2, 10.4, 10.7 and this Section 10.1,
shall survive the termination of this Agreement for any reason.
10.2 Notices. Any notice or other communication required or permitted
hereunder shall be delivered in accordance with the Notice
provision of the Distribution Agreement.
10.3 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by each of the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the
part of any party on exercising any right,
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power or privilege hereunder shall operate as a waiver thereof,
nor shall any waiver on the part of any party of any right, power
or privilege, or any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege. The rights
and remedies herein provided are cumulative and are not exclusive
of any rights or remedies that any party may otherwise have at law
or in equity.
10.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Each of the
parties hereto agrees that any legal action or proceeding with
respect to this Agreement may be brought in the Courts of the State
of New York or the United States District Court for the Southern
District of New York in the borough of Manhattan and, by execution
and delivery of this Agreement, each party hereto irrevocably
submits itself in respect of its property, generally and
unconditionally to the non-exclusive jurisdiction of the aforesaid
courts in any legal action or proceeding arising out of this
Agreement. Each of the parties hereto hereby irrevocably waives any
objection which 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 brought in the courts referred to in
the preceding sentence. Each party hereby consents to process being
served in any such action or proceeding by the mailing of a copy
thereof in accordance with the Notice provisions of this Agreement
and agrees that such service upon receipt shall constitute good and
sufficient service of process or notice thereof. Nothing in this
Section 10.4 shall affect or eliminate any right to serve process
in any other matter permitted by law.
10.5 Entire Agreement. This Agreement and the other Distribution
Documents contain the entire agreement among the parties hereto
with respect to the subject matter hereof and supersede all
previous written or oral negotiations, commitments and writings.
The section headings of this Agreement are for convenience of
reference only and do not form a part hereof and do not in any way
modify, interpret, or construe the intentions of the parties.
10.6 Further Assurances. At any time and from time to time, each party
hereto agrees, without further consideration, to take such actions
and to execute and deliver such documents as may be reasonably
necessary to effectuate the terms of this Agreement.
10.7 Counterparts. This Agreement may be executed in counterparts, and
such counterparts will constitute one and the same instrument.
10.8 Severability. If any term or clause of this Agreement is held to be
illegal, invalid or unenforceable, the validity or enforceability
of the remainder of this Agreement shall not be affected thereby.
10.9 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, permitted assigns and legal representatives. Neither
this Agreement, nor any right or obligation hereunder, may be
directly or indirectly assigned or transferred by Aetna, in whole
or in part, to any third party, including, without limitation, any
bankruptcy trustee, by operation of law or otherwise, whether
voluntary or involuntary, without the
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prior written consent of Spinco; provided, however, that, Aetna may
assign this Agreement to one or more of its wholly-owned
subsidiaries, in whole or in part, provided, that (a) no such
assignment shall relieve Aetna of its obligations hereunder; and
(b) none of the wholly-owned subsidiaries of Aetna to whom any
rights hereunder have been assigned may further assign or transfer
(directly or indirectly, by operation of law or otherwise) such
rights, without the prior written consent of Spinco.
10.10 Relationship of the Parties. This Agreement does not create any
joint venture, partnership, agency or fiduciary relationship
between the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AETNA U.S. HALTHCARE, INC.
By:
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Name:
Title:
AETNA INC.
By:
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Name:
Title:
