Exhibit 10(q)
Information and Processing Services Schedule No. 2
To Master Services Agreement
Dated April 30,1991 (the "Agreement")
between
INTERSTATE/XXXXXXX XXXX CORP. (acting on behalf of itself and those of its
subsidiaries listed on the Subsidiary Schedule attached hereto and made a part
hereof, "Client")
and
ADP FINANCIAL INFORMATION SERVICES, INC. ("ADP")
This Information and Processing Schedule No. 2 to the Agreement (this
"Schedule") shall replace and supersede in its entirety Information and
Processing Services Schedule No. 1 to the Agreement, dated as of September l,
1996 between Client and ADP. Unless otherwise defined herein, all terms defined
in the Agreement shall have the same meanings when used herein.
1.A SERVICES TO BE PROVIDED
ADP agrees to provide, and Client agrees to receive, the brokerage processing
services (the "Services") listed in the Information and Processing Services
Price Schedules dated January 20, 1998 (the "Price Schedules") attached hereto
and made a part hereof. The "Services" shall also include, free of charge, any
generally available enhancements to, or replacements for, the Services and any
other ADP brokerage processing services generally available now or after the
date of this Schedule to any ADP back-office client, provided, that such
Services are not available on a stand-alone basis (whether such services are
developed or acquired by ADP, such as services of ICI, Merrin and Wilco). All
Services shall be provided in accordance with the terms and conditions of this
Schedule and the Agreement. The Services shall be provided on a service bureau
basis and, except as set forth below in Paragraph 12 with respect to BPS
Advantage, shall not include the licensing of any software to Client. Any
additional services will be provided by ADP to Client upon the execution of an
additional schedule by the parties.
1.B TERMINATION OF ADVENT SERVICES
Client acknowledges that ADP plans to discontinue support of its Advent
portfolio management interface product, known as "POINT." Client hereby agrees
to terminate all use of the POINT service upon 60 days' notice from ADP (the
"POINT Termination Date"). Client hereby acknowledges that ADP and Advent
Software, Inc. ("Advent") are in the process of developing a new interface that
will be available to connect Client to Advent's Axys 2.0 product which product
will be available to replace the POINT service and, if Client elects to use Axys
2.0, ADP will provide the related portfolio management interface at the same
cost to Client as the POINT service and will implement Client's conversion to
Axys 2.0 at no charge, except for reimbursement of out-of-pocket costs incurred
by ADP in connection with such conversion. Charges for Client's use of the Axys
2.0 product shall be determined between Client and Advent. Notwithstanding
anything herein or in the Agreement to the contrary, ADP shall not be obligated
to continue to provide the POINT service to Client after the POINT Termination
Date. ADP shall have no liability to Client as a result of the discontinuation
of the POINT Service.
2. TERM OF SCHEDULE
The initial term of this Schedule shall be for a period commencing as of July 1,
1998 (the "Effective Date") and ending June 30, 2003 (the "Initial Schedule
Term"). After the expiration of the Initial Schedule Term, the term of this
Schedule shall automatically continue until terminated by either party by giving
at least six months' prior written notice of termination to the other.
3. MONTHLY CHARGES
A. Charges/Monthly Service Minimum. The initial charges for the Services,
including the minimum monthly charges (the "Monthly Service Minimum"), are set
forth in the Price Schedules. The parties hereby acknowledge and agree that (i)
Client shall be billed additionally for each customer trade in excess of 78,174
per month and (ii) additional billing for firm trades will begin when firm trade
volume exceeds 24,600 trades per month. Trade counts are based on ADP's S211
detail. (As of the date hereof, Client customer trades are calculated as
follows: S211 Account Number 0000000 - (S211 Account Number 0000000 + S211
Account Number 0000000 + S211 Account Number 0000000; and Client firm trades are
calculated as follows: S211 Account Number 0000000 + S211 Account Number
0000000.)) As Client changes its business or ADP implements new processing
procedures, billing counters may be changed accordingly. Trade counts consist of
all customer and firm account ranges. Mutual Funds Routing System (MFRS) offset
trades are netted from the customer trades. If Client requires the processing of
trade types other than those provided for in the Price Schedules, the rate to be
charged for such other trade types shall be mutually agreed upon by the parties.
B. Price Protection. Monthly charges for the Services shall not be increased
during the Initial Schedule Term except as provided in Paragraph 3(C) below.
Unless otherwise agreed, the charges for the Services following the expiration
of the Initial Schedule Term shall be equal to 110% of ADP's then-current
charges for the Services.
C. Material Transaction Adjustment. In the event that Client (directly, or
through any of its subsidiaries) increases the number of its terminals to more
than 1375 through acquisition, merger, consolidation or otherwise, the parties
hereto shall mutually agree upon an increase in the Monthly Service Minimum to
take into account such acquisition, merger, consolidation or other increase.
D. TCP/IP Charges. TCP/IP charges (Interactive Terminal Access charges and IP
Address Translation charges) will be waived for the first 1375 devices (or
sessions) using such service. All devices (or sessions) above 1375 will be
billed at ADP's then standard rates.
E. Third Party Charges (Pass-Throughs). All pass-through and/or direct
entitlement fees authorized by Client, including, but not limited to, charges
for supplies, postage and delivery, communication charges, data base and other
information provider fees (including exchange fees) and/or royalties and
federal, state and local government fees shall not be included in the Monthly
Service Minimum and shall be borne by Client. Any increases in such charges made
by the respective third party shall also be borne by Client.
F. Disaster Recovery Charges. The monthly charge for disaster recovery services
provided to Client pursuant to the Disaster Recovery Addendum for Plan No. 2
dated October 31, 1993 as amended, is not included in the Monthly Service
Minimum.
G. Government Requests. Client agrees that ADP shall be entitled to the recovery
of charges incurred as a result of special requests for reports made by
authorized government agencies (which are made subject to subpoena or other
regulatory action) (not including industry investigations or information
requests). Such amounts shall not be included in the Monthly Service Minimum and
shall be borne by Client.
4. BACK OFFICE CREDIT
ADP will provide to Client a monthly credit of $50,000 against the monthly
service charges for the Services if Client is in compliance with the terms and
conditions of this Schedule and the Agreement.
5. CORRESPONDENT TRADE CREDIT
ADP shall waive the trade processing charges set forth on Page 2 of the Price
Schedules for the first three months hereunder with respect to trades related to
a firm that becomes a correspondent of Client after the Effective Date that was
not an ADP or Securities Industry Software Corporation ("ADP/SIS") back office
client or a correspondent of an ADP or ADP/SIS back office client prior to
becoming a correspondent of Client, if (i) Client is not in default under the
Agreement and, (ii) Client has notified ADP within 6 months of such
correspondent's startup. With respect to any such correspondent, Client shall
remain responsible for (i) all charges for data communications, supplies, vendor
fees and other pass through charges related to such new correspondent and (ii)
all conversion charges.
6. OMS PLUS CONVERSION
Client hereby acknowledges that ADP's OMS Plus System will replace the DNS
System and, if Client elects to convert from the DNS System to the OMS Plus
System, ADP will implement such conversion at no charge. In connection with such
conversion services, ADP agrees to provide, at a central site agreed upon by
Client and ADP, training in the use of the OMS Plus System to the trainers and
network supervisors designated by Client as provided below. Such training shall
be provided at no charge, except for reimbursement of out-of-pocket costs
incurred by ADP in connection therewith. Any additional training requested by
Client shall be provided at ADP's then current rates, plus reimbursement of
out-of-pocket expenses. Notwithstanding anything herein or in the Agreement to
the contrary, ADP shall not be obligated to continue to provide DNS Services to
Client after the Initial Schedule Term if Client elects not to convert to the
OMS Plus System, and ADP shall have no liability to Client as a result of such
discontinuation of DNS Services.
7. INDEMNIFICATION
Client shall indemnify and hold harmless ADP from and against any loss,
liability, claim, damage or expense (other than any loss, liability, claim,
damage or expense arising out of infringement covered by Paragraph 19(B) of the
Agreement) arising from or in connection with any action, proceeding or claim
made or brought against ADP by any third party, for any inadvertent or
unintentional ADP error, omission or failure incident or pursuant to this
Agreement.
8. RETURN OF RECORDS
Upon termination of this Schedule for any reason, ADP, at Client's request, will
provide a computer printout or magnetic tape of all of Client's records then
retained by ADP, provided that ADP has been paid for all Services rendered to
the date of termination (not including amounts disputed by Client in good faith,
provided that Client delivers to ADP a reasonably detailed written summary of
any such disputes) and, provided further, that ADP is paid at its then-standard
rates for providing the services necessary to return such records.
9. CONFIDENTIALITY OF THE TERMS OF THE AGREEMENT
The parties agree that the terms and conditions of the Agreement and of this
Schedule shall constitute Confidential Information for purposes of Paragraphs 10
and 11 of the Agreement and shall be treated in accordance therewith.
10. CLIENT ACCESS LICENSE
A License. Client hereby grants to ADP the perpetual, non-exclusive right to use
the software, files, data bases, and all copyrights, trade secrets and other
intellectual or industrial property rights therein, and all modifications,
enhancements and custom programming thereto, relating to Client's Internet BPSA
front-end software product, "Client Access" (the "Software").
B. Proprietary Rights Infringement. Client warrants that such Software is free
from any claim of infringement of any United States patent, copyright, trademark
or trade secret. Client shall indemnify and hold ADP harmless from any and all
losses, claims, damages, liabilities, costs and expenses (including reasonable
attorney's fees) arising out of any infringement by such Software of any United
States patent, copyright, trademark or trade secret of any third party provided
that:
a) promptly after becoming aware of the existence of any claim or
litigation for which indemnity may be sought under this Paragraph
10.B., ADP shall give Client written notice thereof, together with any
and all documentation related to such claim or litigation; and
b) ADP shall cooperate with Client in every reasonable way, at Client's
expense, to facilitate the defense or settlement of any such claim or
litigation.
If ADP is enjoined or otherwise prohibited form using such Software, Client
shall, at its sole expense and at Client's option, (x) procure for ADP the right
to continue using such Software or (y) substitute a noninfringing version of
such Software in a manner satisfactory to ADP so that such Software becomes
noninfringing and still conforms to its applicable functional and technical
specifications.
11. BPS Advantage Source Code License
A. License. ADP hereby grants to Client the non-exclusive, non-transferable
right to use the source code for the BPS Advantage graphical user interface
and the associated stored procedures (the "Source Code") during the term of this
Schedule solely in connection with its authorized use of the BPS Advantage data
model and in accordance with the terms and conditions hereof. Client shall not
distribute any form or portion of, or any derivative work from, the Source Code.
Upon execution and delivery of this Schedule, ADP shall furnish to Client one
copy of the Source Code for use in accordance herewith.
B. Ownership, Use and Confidentiality. The Source Code shall remain the sole and
exclusive property of ADP, and shall be, and shall be treated by Client as,
Confidential Information. Client will not use the Source Code for its own
corporate purposes or otherwise, except in accordance with the terms of this
Schedule. Without limiting the generality of the foregoing, Client shall store
the licensed copy of the Source Code in a secure place and shall ensure that
access thereto is controlled by an executive officer of Client. Client agrees
that it will not, and will not allow any person having access to the Source Code
to, disclose or use the same, except in accordance with the terms of this
Schedule. Client shall not use, or permit any third party to use, the Source
Code or any portion thereof for any software development or any other purpose
not explicitly authorized herein.
C. Compliance with Provision. From time to time upon ADP's request, Client shall
furnish to ADP a written certification, signed by an executive officer of
Client, stating that Client is in compliance with the terms of this Paragraph
11. If Client attempts to use, transfer or otherwise dispose of all or any
portion of the Source Code, or any duplication or modification thereof, in any
manner contrary to the terms of this Schedule, ADP shall have the right, in
addition to such other remedies which may be available to it, to injunctive
relief enjoining such acts or attempts, it being acknowledged that legal
remedies are inadequate.
D. Return of Source Code. The Source Code (including all copies thereof) shall
be returned to ADP upon the termination of this Schedule. Upon return of the
Source Code, Client shall, at ADP's request, furnish to ADP a written
certification, signed by an executive offficer of Client, stating that Client
has not retained any copies of the Source Code or any modifications thereof.
12. REQUIRED PROVISION OF SYBASE, INC.
Client acknowledges and agrees that the Sybase SQL Server Program and the Sybase
Replication Server Program (the "Programs") used in connection with ADP's BPS
Advantage product shall only be used by the Client as set forth below to read,
in a view-only format, the Services and the Programs shall not be downloaded or
used to create or alter tables, schemas or databases or otherwise develop or
modify in any
way the applications or performance of other programming tasks. Notwithstanding
the foregoing, Client may access to the Programs through ADP tools or third
party tools; provided, that any access shall be restricted to the following:
Client may access the Services embedding a copy of the Programs which are
deployed on ADP's premises or Client's site, provided that in either instance,
Client shall not (i) copy the application(s) embedding the Programs, (ii) use
the Programs other than to process Client's own transactions and transactions
for entities that operate on a fully disclosed basis through Client as
correspondents, or (iii) access the Programs for general development. Client may
also develop applications against the BPS Advantage database using tools
supplied by ADP, Sybase or other third parties.
13. YEAR 2000
ADP represents that the software applications and systems which are components
of the Services, will be Year 2000 Compliant. For purposes of the foregoing,
"Year 2000 Compliant" means that all applications and system products, programs,
files, data bases and/or functionalities are no more likely to produce logical
or arithmetical inconsistencies when dealing with dates beyond December 31, 1999
than they are when dealing with dates prior to and including December 31, 1999.
IF THERE IS ANY CONFLICT BETWEEN THE PROVISIONS OF THIS SCHEDULE AND THE
PROVISIONS OF THE AGREEMENT, THE PROVISIONS OF THIS SCHEDULE SHALL
PREVAIL.
ADP FINANCIAL INFORMATION SERVICES, INC. INTERSTATE/XXXXXXX XXXX CORP.
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: Xxx Xxxxxxxx
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Name and Name and
Title: Xxxxxxxxx X. Xxxxxxxx Title: Xxx Xxxxxxxx
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Senior Vice President Senior Vice President
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7/31/98 7/18/98
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THIS SCEHEDULE SHALL BECOME EFFECTIVE UPON BEING SIGNED BY AN AUTHORIZED OFFICER
OFFICER OF ADP AND CLIENT.
