REMOTE PROCESSING AGREEMENT
BETWEEN
SUNGARD FINANCIAL SYSTEMS, INC.
a Delaware corporation
("SunGard")
AND
ADVANTAGE TRADING GROUP, INC.
a Florida corporation
("Customer")
DATED
January 12, 1998
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Agreement and all Schedules and Addenda to this Agreement.
SUNGARD FINANCIAL SYSTEMS, INC. ADVANTAGE TRADING GROUP, INC.
BY: /s/ Xxxxx Xxxxxx BY: /s/ Xxxxx X. Xxxxx/ /s/Xxxxxxx X. Xxxxx
-------------------------- ----------------------------------------
PRINT NAME: /s/ Xxxxx Xxxxxx PRINT NAME: /s/ Xxxxx X. Xxxxx/
------------------ --------------------------------
/s/ Xxxxxxx X. Xxxxx
--------------------------------
PRINT TITLE: President PRINT TITLE: C.E.O./President
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DATE SIGNED: January 12, 1998 DATE SIGNED: 1/12/98/1/12/98
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SUNGARD
1. SERVICES
1.1 Provision of Services. SunGard shall provide to Customer, and
Customer shall accept, the on-line processing, report services
and related services described on Schedule A to this Agreement
("System Services") available through use of SunGard's
proprietary applications software system Identified on
Schedule A to this Agreement ("System") and the related
documentation listed on Schedule A ("Documentation"), as the
System Services, System and Documentation may be modified,
revised and updated in accordance with this Agreement.
1.2 On-Line Processing Services. SunGard shall provide to Customer
the on-line processing services described on Schedule A. The
System will be available to Customer twenty-four hours a day
except during System maintenance. Customer will have on-line
access to the System during every day that any of the United
States securities markets are open ("Business Day"). On each
Business Day, SunGard will perform a daily batch cycle which
will begin at 8:00 p.m. Eastern Time and takes approximately
twelve (12) hours for normal data processing, unless
additional processing is required by Customer ("Batch Cycle").
During the Batch Cycle access by Customer to the System is
limited to the inquiry functions and order entry of trades for
next Business Day processing. If Customer requests a delay in
the commencement of the Batch Cycle or if any clearing
entities are not available to be accessed by the System, Batch
Processing may be delayed and the System may not be available
for next Business Day processing for approximately twelve (12)
hours after the commencement of the Batch Cycle. The
Designated Location will be staffed at SunGard's usual levels
twenty-four (24) hours a day commencing at 7:00 a.m. Eastern
Time on Monday through 7:00 p.m. Eastern Time Saturday, and on
Sunday from 7:00 a.m. Eastern Time to 7:00 p.m. Eastern Time.
Customer may request additional staffing by providing five (5)
days' prior written notice to SunGard. Such additional
staffing will be charged to Customer at SunGard's current
rates.
1. 3 Report Services. SunGard shall provide to Customer the report
services described on Schedule A, subject to any advance
notification procedures stated on Schedule A. SunGard shall
transmit all reports to Customer in the manner described in
the Documentation.
1.4 Customer Data. Customer shall supply to SunGard all of the
data to be processed under this Agreement as described on
Schedule A and in the Documentation. Customer shall transmit
the data to SunGard by communications link or in another
manner described on Schedule A. Customer shall use its best
efforts to insure that any information or data which it
introduces into the System is accurate and complete. Customer
shall maintain copies of all source data and current backup
copies of all data supplied to SunGard, and SunGard shall have
no liability for any loss or damage caused by Customer's
failure to maintain copies.
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1.5 Limited Use. Customer may use the System Services and
Documentation only in the ordinary course of its business
operations and for its own business purposes, including the
processing of trades of Customer's correspondent brokers in
its ordinary course of business. Customer shall use the System
Services only in accordance with the Documentation. Customer
may use only the copies of the Documentation that are provided
by SunGard, except that Customer may copy the Documentation to
the extent reasonably necessary for routine backup and
disaster recovery purposes.
2. INITIAL IMPLEMENTATION SUPPORT AND TRAINING
2.1 Initial Implementation. SunGard shall provide and Customer
shall accept the Initial Implementation Support described on
Schedule C. This shall include delivery to Customer of the
Initial Copies of the Documentation stated on Schedule C and
assistance with any other implementation or related activities
described on Schedule C. Subject to the availability of
SunGard's personnel, SunGard shall provide to Customer
additional implementation support services reasonably
requested by Customer. After delivery, Customer shall bear all
risk of loss or damage to all copies of the Documentation
delivered by SunGard to Customer. SunGard shall provide to
Customer replacement or additional copies of the Documentation
reasonably requested by Customer.
2.2 Training. SunGard shall provide and Customer shall accept the
Minimum Training described on Schedule C. This shall include
basic training in the use of the System Services for a
reasonable number of Customer's employees. Subject to the
availability of SunGard's personnel, SunGard shall provide to
Customer additional training services reasonably requested by
Customer. SunGard shall provide training at Customer's
location(s) whenever SunGard and Customer agree on-site
training is appropriate.
3. SUNGARD'S OTHER OBLIGATIONS
3.1 Ongoing Support Services. SunGard shall provide the following
ongoing support services to Customer:
(a) Telephone Support. SunGard shall provide to Customer,
during SunGard's normal business hours, Monday
through Friday from 7:30 a.m. Eastern Time to 7:30
p.m. Eastern Time (except that Customer and SunGard
may agree in advance to provide support services on
U.S. holidays), telephone consultative support
through SunGard's Customer Support Department
regarding Customer's proper and authorized use of the
Software. During normal business hours, SunGard shall
provide access to at least one of the following
people: (i) the primary support person for customer
account, (ii) the project manager for customer's
account or (iii) a senior manager of SunGard. In
addition, telephone
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consultative support will be provided through the
SunGard hotline twenty-four (24) hours a day seven
(7) days a week.
(b) Error Corrections. SunGard shall use commercially
reasonable efforts to correct failures of the
Software to perform in accordance with the
Documentation ("Errors") as follows:
1. Classification of Errors. An Error shall be
classified in accordance with the following terms:
Class 1 Error. A "Class 1 Error" is any
Error that renders continued use of the
Software either impossible or seriously
impractical and either interrupts production
by Customer or makes continued production
substantially costly to Customer.
Class 2 Error. A "Class 2 Error" is any
Error that is not a Class 1 Error.
2. Notification of Errors. SunGard shall provide to
Customer a list of persons (in increasing positions
of authority) and telephone numbers ("Calling List")
for Customer to contact in order to report an error.
When reporting any Error, Customer shall provide the
classification of the Error and reasonably detailed
documentation and explanation, together with
underlying data, to substantiate the Error and to
assist SunGard in its efforts to diagnose and correct
the Error. Customer will immediately report any Class
1 Error. If SunGard detects a Class 1 Error, then
SunGard will immediately contact Customer.
3. Response Time. SunGard shall use commercially
reasonable efforts to respond to Customer's initial
Error reports with off-site telephone consultation,
assistance and advice within fifteen (15) minutes for
Class 1 Errors and within one (1) hour for Class 2
Errors, but in any event, SunGard shall respond
within four working hours. If SunGard fails to so
respond, or if the designated person from the Calling
List is not available when Customer makes contact
with SunGard to report an Error, then Customer shall
attempt to contact the next more responsible person
of the Calling List until contact is made and a
designated person responds to the call.
Class 1 Errors. For any Class 1 Error,
SunGard shall take all reasonably necessary
steps to supply a reasonable work-around or
correction to Customer as soon as possible.
This will include assigning qualified,
dedicated staff to work on the Error 24
hours per day, 7 days per week, at either
the SunGard site or Designated Location as
necessary. Upon detecting or being notified
of a Class 1 Error, SunGard shall
immediately assemble the appropriate
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personnel to analyze the problem, identify
potential solutions and determine the best
plan of action. Customer shall participate
in this process when necessary and provide
SunGard with additional documentation and
examples, if possible, to assist in
resolving the Error. SunGard personnel shall
be dedicated to resolving the Error until an
acceptable work-around or correction is
supplied or until Customer determines in its
reasonable judgment after consultation with
SunGard that a work around or correction
cannot be produced. A SunGard representative
shall keep Customer informed of the status.
Class 2 Errors. For any Class 2 Error,
SunGard shall work with Customer to document
the Error through mutually established
standards. Class 2 Errors shall be resolved
according to mutually agreed priorities.
SunGard personnel shall be dedicated to
resolving Class 2 Errors through SunGard's
normal software support procedures.
(c) Billable Correction Services. If SunGard determines,
reasonably and in good faith, that a reported Error
did not, in fact, exist or was not attributable to a
defect in the Software or an act or omission of
SunGard, then Customer shall pay for SunGard's
investigation and related services at the service
fees specified in Section 5.3.
3.2 Modifications. SunGard shall provide to Customer, and Customer
shall accept, the following modifications to System Services:
(a) SunGard shall provide modifications, revisions and
updates to the System Services which SunGard, in its
sole discretion, incorporates into the System
Services without additional charge.
(b) SunGard shall use commercially reasonable efforts to
develop and implement changes to the System so that
the System Services will continue to comply with
applicable rules and regulations of regulatory
authorities as they may change from time to time.
(c) At SunGard's option and subject to the availability
of SunGard personnel, SunGard shall evaluate and, if
feasible and appropriate, produce and implement
Customer requests for modifications in the System
Services or the System. In SunGard's sole discretion,
it may implement requested modifications at no charge
in accordance with Section 3.1 (a) or offer them at
an additional charge in accordance with Section 3.4.
(d) SunGard shall deliver updates to the Documentation
whenever SunGard determines, in its sole discretion,
that such updates are necessary.
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(e) Customer shall accept modifications, revisions and
updates in the System Services, System and
Documentation, including changes in programming
languages, rules of operation and screen or report
format, as and when they are implemented by SunGard
and provided the modifications, revisions or updates
do not have a material adverse effect on the System
Services. Customer acknowledges that modifications,
revisions and updates in the System Services and the
System permitted by this Agreement may result in
changes in the form, timing or other features of
on-line services, reports and other System Services
provided under this Agreement.
3.3 Enhancements. SunGard shall offer to Customer the opportunity
to purchase services available through use of refinements,
improvements and enhancements to the System which SunGard, in
its sole discretion, does not incorporate into the System
without additional charge.
3.4 Consulting and Other Services. At Customer's reasonable
request and subject to the availability of SunGard's
personnel, SunGard shall provide to Customer conversion
assistance, consulting services, custom modification
programming, support services relating to custom
modifications, assistance with data transfers, assistance in
the use of the System Services security mechanisms and other
specialized support services with respect to the System
Services. These services shall be provided by SunGard at
Customer location(s) if SunGard and Customer agree that
on-site services are appropriate.
3.5 Backup Copies and Disaster Recovery. SunGard will make a
backup copy, in digital form, of Customer's data files then in
SunGard's possession (i) at the end of each business day and
stored at an off-site location for a period of five (5)
business days and (ii) at the end of each month and saved at
an off-site location for a period of the twelve (12) months,
provided that the monthly data files for the first four (4)
months of any tax year will be saved until the fifth month of
the following tax year. SunGard will maintain an agreement for
backup processing services with an affiliated company
consisting of the right to use an installed, fully operational
computer system and networking capability subject to the
availability of computer and other hardware. The backup
processing will be performed by SunGard using backup copies
which will be sent to the backup facility. Customer will be
charged for any recovery services associated with any computer
hardware or communications equipment required for Customer or
its correspondent brokers to access the System that is not
located at the Designated Location. In the case of an
emergency requiring backup processing, SunGard will promptly
contact the person or persons designated in writing by
Customer to be notified in such circumstance.
3.6 Special Processing. Upon the request of Customer and subject
to the limitations of the applications and hardware, SunGard
will use commercially reasonable
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efforts to provide special processing services such as
additional, customized reports or other enhancements that are
not included in the processing services provided under this
Agreement. Such special processing services will be provided
for an additional charge agreed upon by Customer and SunGard
in writing.
4. CUSTOMER'S OTHER OBLIGATIONS
4.1 Access to Facilities and Employees. Customer shall provide to
SunGard access to the Customer's facilities, equipment and
employees, and shall otherwise cooperate with SunGard, as
reasonably necessary for SunGard to perform its
implementation, training, support and other obligations under
this Agreement.
4.2 Procurement of Hardware and Other Items. Customer shall be
responsible, at its expense, for procuring and maintaining the
communications equipment and lines, computer equipment,
software and all other out of pocket expenses, which comprise
the Specified Configuration described on Schedule A, and for
updating the Specified Configuration in accordance with
SunGard's published updates to Schedule A.
4.3 Notices and Certifications. Customer shall give written notice
to SunGard (in accordance with Section 9.1) whenever Customer
intends to increase the transaction volume, in any material
respect, to be processed on the System. Customer shall
promptly complete and return to SunGard periodic
certifications which SunGard, in its sole discretion, may from
time to time send to Customer, certifying that Customer has
complied and is then in compliance with the provisions of
Section 7.
4.4 Certain Legal Requirements. Customer shall be responsible, at
its expense, for complying with all laws and regulations of
any jurisdiction applicable to use of System Services,
including laws and regulations pertaining to (a) remote use of
software and related property, (b) communication or
transmission of data into or out of a jurisdiction or (c)
registration of this Agreement. Customer shall indemnify and
hold harmless SunGard (and its affiliates, and the respective
directors, officers, employees and agents of SunGard and its
affiliates) from and against all actions, claims, damages or
liabilities (including reasonable attorneys' fees) arising out
of any violation by Customer of any such laws or regulations.
5. PAYMENTS
5.1 Initial Implementation Support and Minimum Training. Customer
shall pay to SunGard the fees for Initial Implementation
Support and Minimum Training in the amounts stated on Schedule
C, in accordance with the payment terms stated on Schedule C.
5.2 Monthly Fees. On a monthly basis, beginning on the first day
of processing live trades on the System ("Effective Date") and
continuing until termination of this
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Agreement, Customer shall pay to SunGard the fees described on
Schedule C. Customer shall pay minimum monthly fees for
certain services in advance as stated on Schedule C.
5.3 Special Service Fees. Customer shall pay to SunGard the
service fees stated on Schedule C for conversion, consulting
services, custom modification programming, support services
relating to custom modifications, assistance with data
transfers, and other specialized support services under
Sections 3.4. In each case where service fees are not
specified on Schedule C, then the fees for such services shall
be based upon SunGard's standard professional fee rates.
SunGard's standard professional fee rates in effect on the
date of this Agreement are stated on Schedule C and are
subject to increase in the ordinary course of business.
5.4 Expense Reimbursements. Customer shall be responsible for all
out-of-pocket expenses to receive, deliver or transmit reports
or data, and shall reimburse SunGard for all such expenses
incurred by SunGard. Whenever any services are provided by
SunGard at a Customer location or any other location requested
by Customer other than one of SunGard's locations, Customer
shall reimburse SunGard for its reasonable travel, lodging,
meal and related expenses incurred by SunGard personnel in
providing such services.
5.5 Other Fees. If Customer requires replacement or additional
copies of the Documentation if Customer assigns or otherwise
transfers this Agreement with SunGard's consent (in accordance
with Section 9.3), then Customer shall pay to SunGard the
corresponding fees stated on Schedule C.
5.6 Taxes. The fees and other amounts payable by Customer to
SunGard under this Agreement do not include any taxes of any
jurisdiction that may be assessed or imposed upon the services
provided under this Agreement or the copies of the
Documentation provided to Customer, including sales, use,
excise, value added, personal property, export, import and
withholding taxes, excluding only taxes based upon SunGard's
net income. Customer shall directly pay any such taxes
assessed against it, and Customer shall promptly reimburse
SunGard for any such taxes payable or collectable by SunGard.
5.7 Payment Terms. SunGard shall submit invoices to Customer on a
monthly basis for monthly fees and routine expense
reimbursements. SunGard shall submit invoices to Customer for
any other fees or expense reimbursements as and when incurred.
All invoices shall be sent to Customer's address for invoices
stated on Schedule A. Customer's payments shall be due within
thirty (30) days after receipt of invoice. Interest at the
rate of eighteen percent (18%) per annum (or, if lower, the
maximum rate permitted by applicable law) shall accrue on any
amount not paid by Customer to SunGard when due under this
Agreement, and shall be payable by Customer to SunGard on
demand. Except as provided in Sections 6.1
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and 6.2(c), all fees and other amounts paid by Customer under
this Agreement are non-refundable.
5.8 Fee Increases. On an annual basis, by giving at least one
hundred and twenty (120) days advance written notice to
Customer (in accordance with Section 9.1), SunGard may
increase the fees payable under this Agreement. If in
Advantage Trading Group's determination said fee increase is
unacceptable, Advantage Trading Group retains the right to
terminate this agreement within at least one hundred and
twenty (120) days of notification of increase from SunGard.
6. WARRANTIES AND LIMITATIONS
6.1 Performance. SunGard shall use reasonable care in processing
all work transmitted to it by Customer. SunGard shall have no
liability under this Section 6.1 unless, within thirty (30)
days after the applicable date of service, SunGard receives
notice from Customer (in accordance with Section 9.1)
describing a material processing error caused by SunGard's
failure to use reasonable care, together with adequate
supporting documentation and data. Upon receipt of any such
notice, SunGard's only obligation under this Section 6.1 is to
correct the error and redo the work affected as soon as
reasonably practical at no additional charge, or, at SunGard's
option, to refund or credit the charges applicable to the work
affected.
6.2 Right to Perform Services; No Infringement. SunGard warrants
to Customer that it has the full legal right to use the System
to provide the System Services in accordance with this
Agreement, and that the System Services and Documentation, in
the form delivered to Customer by SunGard and when properly
used for the purpose and in the manner specifically authorized
by this Agreement, do not infringe in any material respect
upon any United States patent or copyright or any trade secret
or other proprietary right of any person. SunGard shall
reimburse Customer for any damages finally awarded against and
paid by Customer to the extent attributable to a violation of
the foregoing warranty. SunGard shall have no liability under
this Section 6.2 unless Customer gives written notice to
SunGard (in accordance with Section 9.1) within ten (10) days
after any applicable infringement claim is initiated against
Customer and allows SunGard to have sole control of the
defense or settlement of the claim. If any applicable
infringement claim is initiated, or in SunGard's sole opinion
is likely to be initiated, against Customer or SunGard, then
SunGard shall have the option, at its expense, to:
(a) modify or replace all or the infringing part of the
System Services, System or Documentation so that it
is no longer infringing, provided that the System
Services do not change in any material adverse
respect; or
(b) procure the right to continue using or providing the
infringing part of the System Services, System or
Documentation; or
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(cc) remove all or the infringing part of the System
Services, System or Documentation, and refund to
Customer the corresponding portion of any monthly fee
paid in advance, in which case this Agreement shall
terminate with respect to the affected System
Services.
6.3 Care of Data. SunGard shall use reasonable care in handling
tapes or other materials which encode or contain data
belonging to Customer. SunGard's only obligation for breach of
this Section 6.3 shall be to replace or repair the tape or
material lost or damaged and to make reasonable efforts to
regenerate any lost data from backup copies maintained by
SunGard or from source data provided by Customer.
6.4 Application of Data. SunGard shall have no liability for any
loss or damage resulting from any application of the results
obtained from the use of any services provided under this
Agreement or from any unintended or unforeseen results
obtained from the use of any services provided under this
Agreement.
6.5 Exclusion for Unauthorized Actions. SunGard shall have no
liability under any provision of this Agreement with respect
to any performance problem, claim of infringement or other
matter to the extent attributable to any unauthorized or
improper use or modification of the System, any unauthorized
combination of the System with other software (other than
software included in the Specified Configuration), or any
breach of this Agreement by Customer.
6.6 Force Majeure. SunGard shall not be liable for, nor shall
SunGard be considered in breach of this Agreement due to, any
failure to perform its obligations under this Agreement as a
result of a cause beyond its control, including any act of God
or a public enemy, act of any military, civil or regulatory
authority, change in any law or regulation, fire, flood,
earthquake, storm or other like event, disruption or outage of
communications, power or other utility, labor problem,
unavailability of supplies, or any other cause, whether
similar or dissimilar to any of the foregoing, which could not
have been prevented by SunGard with reasonable care. Customer
acknowledges that availability of System Services is subject
to normal System downtime and that SunGard is not responsible
for delays or inability to access services caused by
communications problems.
6.7 Disclaimer and Exclusions. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES,
ORAL OR WRITTEN, EXPRESSED OR IMPLIED, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE REGARDING THE SYSTEM, THE SYSTEM SERVICES OR ANY OTHER
MATTER PERTAINING TO THIS AGREEMENT. EXCEPT FOR DAMAGES
REIMBURSABLE UNDER SECTION 6.2, SUNGARD'S TOTAL LIABILITY
UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED AN
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AMOUNT EQUAL TO FIVE HUNDRED THOUSAND DOLLARS ($500,000).
UNDER NO CIRCUMSTANCES SHALL SUNGARD BE LIABLE TO CUSTOMER OR
ANY OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF
BUSINESS, OR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY
NATURE, WHETHER OR NOT FORESEEABLE.
6.8 Other Limitations. The warranties made by SunGard in this
Agreement, and the obligations of SunGard under this
Agreement, run only to Customer and not to its affiliates, its
customers or any other persons. Under no circumstances shall
any other person be considered a third party beneficiary of
this Agreement or otherwise entitled to any rights or remedies
under this Agreement. Customer shall have no rights or
remedies against SunGard except as specifically provided in
this Agreement. No action or claim of any type relating to
this Agreement may be brought or made by Customer more than
one (1) year after Customer first has knowledge of the basis
for the action or claim.
7. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANTS
7.1 Confidential Information. All business information disclosed
by one party to the other in connection with this Agreement
shall be treated as confidential information unless it is or
later becomes publicly available through no fault of the other
party or it was or later is rightfully developed or obtained
by the other party from independent sources free from any duty
of confidentiality. Each party's confidential information
shall be held in strict confidence by the other party, using
the same standard of care as it uses to protect its own
confidential information, and shall not be used or disclosed
by the other party for any purpose except as necessary to
implement or perform this Agreement, or except as required by
law provided that the other party is given a reasonable
opportunity to obtain a protective order. Without limiting the
generality of the foregoing, such con-fidential information
shall include Customer's data, reports generated by SunGard
from Customer's data and the details of Customer's computer
operations.
7.2 SunGard's Proprietary Items. Customer acknowledges that the
System and Documentation, the object code and the source code
for the System, the name of the System, the visual
expressions, screen formats, report formats and other design
features of the System, all ideas, methods, algorithms,
formulae and concepts used in developing and/or incorporated
into the System or Documentation, all future modifications,
revisions, updates, releases, refinements, improvements and
enhancements of the System or Documentation, all derivative
works based upon any of the foregoing, and all copies of the
foregoing (referred to, collectively, as "Proprietary Items")
are trade secrets and proprietary property of SunGard, having
great commercial value to SunGard. Customer acknowledges that
the restrictions in this Agreement are reasonable and
necessary to protect SunGard's legitimate business interests.
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7.3 Ownership Rights. All Proprietary Items provided to Customer
under this Agreement are being provided on a strictly
confidential and limited use basis. Title to all Proprietary
Items and all related patent, copyright, trademark, service
xxxx, trade secret, intellectual property and other ownership
rights shall remain exclusively with SunGard, even with
respect to such items that were created by SunGard
specifically for or on behalf of Customer. This Agreement is
not an agreement of sale, and no title, patent, copyright,
trademark, service xxxx, trade secret, intellectual property
or other ownership rights to any Proprietary Items are
transferred to Customer by virtue of this Agreement. All
copies of Proprietary Items in Customer's possession shall
remain the exclusive property of SunGard and shall be deemed
to be on loan to Customer during the term of this Agreement.
7.4 Disclosure Restrictions. All Proprietary Items in Customer's
possession, whether or not authorized, shall be held in strict
confidence by Customer, and Customer shall take all steps
reasonably necessary to preserve the confidentiality thereof.
Customer shall not, directly or indirectly, communicate,
publish, display, loan, give or otherwise disclose any
Proprietary Item to any person, or permit any person to have
access to or possession of any Proprietary Item. Customer
shall limit its use of and access to Proprietary Items to only
those of its employees whose responsibilities require such use
or access. Customer shall advise all such employees, before
they receive access to or possession of any Proprietary Items,
of the confidential nature of the Proprietary Items and
require them to abide by the terms of this Agreement. Customer
shall be liable for any breach of this Agreement by any of its
employees or any other person who obtains access to or
possession of any Proprietary Item from or through Customer.
7.5 Use Restrictions. Customer shall not do, nor shall it permit
any other person to do, any of the following:
(a) use any Proprietary Item for any purpose, at any
location or in any manner not specifically authorized
by this Agreement; or
(b) make or retain any copy of any Proprietary Item
except as specifically authorized by this Agreement;
or
(c) create or recreate the source code for the System, or
re-engineer, reverse engineer, decompile or
disassemble the System; or
(d) modify, adapt, translate or create derivative works
based upon the System or Documentation, or combine or
merge any part of the System or Documentation with or
into any other software or documentation; or
(e) refer to or otherwise use any Proprietary Item as
part of any effort to develop a program having any
functional attributes, visual expressions or other
features similar to those of the System or to compete
with SunGard: or
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(f) remove, erase or tamper with any copyright or other
proprietary notice printed or stamped on, affixed to,
or encoded or recorded in any Proprietary Item, or
fail to preserve all copyright and other proprietary
notices in any copy of any Proprietary Item made by
Customer; or
(g) sell, market, license, sublicense, distribute or
otherwise grant to any person, including any
outsourcer, vendor, consultant or partner, any right
to use any Proprietary Item, whether on Customer's
behalf or otherwise; or
(h) use the System to conduct any type of service bureau
or timesharing operation or to provide remote
processing, network processing, network
communications or similar services to any person,
whether on a fee basis or otherwise; or attempt to do
any of the foregoing.
7.6 Notice and Remedy of Breaches. Customer shall promptly give
written notice to SunGard (in accordance with Section 9.1) of
any actual or suspected breach by Customer of any of the
provisions of this Section 7, whether or not intentional, and
Customer shall, at its expense, take all steps reasonably
requested by SunGard to prevent or remedy the breach.
7.7 Audit. SunGard may, at its expense and by giving reasonable
advance written notice to Customer (in accordance with Section
9.1), enter Customer locations during normal business hours
and audit the number of copies of the Documentation in
Customer's possession and information pertaining to Customer's
compliance with the provisions of this Section 7. If SunGard
discovers that Customer is not in compliance with the
provisions of this Section 7 in any material respect, then
Customer shall reimburse SunGard for the expenses incurred by
SunGard in conducting the audit.
7.8 Enforcement. Customer acknowledges that any breach of any of
the provisions of this Section 7 shall result in irreparable
injury to SunGard for which money damages could not adequately
compensate. If there is a breach, then SunGard shall be
entitled, in addition to all other rights and remedies which
SunGard may have at law or in equity, to have a decree of
specific performance or an injunction issued by any competent
court, requiring the breach to be cured or enjoining all
persons involved from continuing the breach. The existence of
any claim or cause of action which Customer or any other
person may have against SunGard shall not constitute a defense
or bar to the enforcement of any of the provisions of this
Section 7.
8. TERMINATION
8.1 Initial Term; Renewal. The term of this Agreement begins on
the date Customer begins processing live trades and shall
continue for three (3) years, and thereafter for successive
one-year renewal terms unless and until terminated in
accordance with this Section 8 or any other section of this
Agreement. SunGard or Customer
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may terminate this Agreement at the end of the initial Term or
at the end of any one-year renewal term by giving at least
ninety (90) days advance written notice of termination (in
accordance with Section 9.1) to the other.
8.2 Termination by Customer. Customer may terminate this Agreement
immediately upon notice to SunGard (in accordance with Section
9.1) if SunGard improperly denies Customer access to the
System Services and Customer's files maintained in the System
for more than one (1) business day, or if SunGard fails to
provide to Customer any daily reports described on Schedule A
for more than two (2) consecutive business days, in either
case unless due to a hardware or software malfunction or
defect, in which case SunGard shall be allowed a reasonable
period of time to correct the malfunction or defect.
8.3 Termination by SunGard. SunGard may immediately terminate this
Agreement, by giving written notice of termination to Customer
(in accordance with Section 9.1), upon the occurrence of any
of the following events:
(a) Customer fails to pay to SunGard, within ten (10)
days after SunGard makes written demand therefor, any
past-due amount payable under this Agreement
including interest thereon) that is not the subject
of a good faith dispute as to which Customer has
given written notice to SunGard (in accordance with
Section 9.1) explaining its position in reasonable
detail.
(b) Customer breaches, in any material respect, any of
the provisions of Section 7 or Section 9.3.
(c) Customer breaches any of its other obligations under
this Agreement and does not cure the breach within
thirty (30) days after SunGard gives written notice
to Customer (in accordance with Section 9.1)
describing the breach in reasonable detail.
(d) Bankruptcy, insolvency, dissolution or liquidation
proceedings of any nature are instituted by or
against Customer or Customer discontinues all or a
significant part of its business operations.
8.4 Suspension of Services. On the occurrence of any event which
would permit SunGard to terminate this Agreement under Section
8.3, in addition to all other rights and remedies which
SunGard may have at law or in equity, SunGard may, without
terminating this Agreement, and in its sole discretion and
without further notice to Customer, suspend performance of any
or all of its services under this Agreement and/or activate
internal controls in the System that are designed to deny
Customer access to the System Services and files, until and
unless SunGard determines, in its sole discretion and upon
whatever conditions SunGard chooses to impose on Customer, to
resume performance of some or all of the suspended services or
allow Customer access to the System Services and files.
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8.55 Effect of Termination. Upon a termination of this Agreement,
whether under this Section 8 or otherwise, Customer shall
immediately cease all use of the System Services,
Documentation and other Proprietary Items, Customer shall
promptly return to SunGard all copies of the Documentation and
any other Proprietary Items then in Customer's possession.
Customer shall remain liable for all payments due to SunGard
with respect to the period ending on the date of termination.
Within thirty (30) days after termination of this Agreement,
Customer shall give notice to SunGard (in accordance with
Section 9.1) containing reasonable instructions regarding the
disposition of tapes, data, files and other property belonging
to Customer and then in SunGard's possession. SunGard shall
comply with that notice, except that SunGard may retain all
such property until SunGard receives all payments due to
SunGard under this Agreement. Upon request contained in such
notice, SunGard shall convert Customer's data to machine
readable form to the extent practicable and at Customer's
expense. If Customer fails to give that notice within thirty
(30) days after termination of this Agreement, then SunGard
may dispose of such property as it sees fit. The provisions of
Sections 5, 6 and 7 shall survive any termination of this
Agreement, whether under this Section 8 or otherwise.
9. OTHER PROVISIONS
9.1 Notice. All notices, consents and other communications under
or regarding this Agreement shall be in writing and shall be
deemed to have been received on the earlier of the date of
actual receipt, the third business day after being mailed by
first class certified air mail, or the first business day
after being sent by a reputable overnight delivery service.
Any notice may be given by facsimile, provided that signed
written original is sent by one of the foregoing methods
within twenty-four (24) hours thereafter. Customer's address
for notices is stated on Schedule A. SunGard's address for
notices is 000 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Contract Administration. Either party may change
its address for notices by giving written notice of the new
address to the other party in accordance with this Section
9.1.
9.2 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
(a) "affiliate" means, with respect to a specified
person, any person which directly or indirectly
controls, is controlled by, or is under common
control with the specified person as of the date of
this Agreement, for as long as such relationship
remains in effect.
(b) "copy" means any paper, disk, tape, film, memory
device, or other material or object on or in which
any words, object code, source code or other symbols
are written, recorded or encoded, whether permanent
or transitory.
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(c) "including" means including but not limited to.
(d) "person" means any individual, sole proprietorship,
joint venture, partnership, corporation, company,
firm, bank, association, cooperative, trust, estate,
government, governmental agency, regulatory
authority, or other entity of any nature.
9.3 Parties In Interest. This Agreement shall bind, benefit and be
enforceable by and against SunGard and Customer and, to the
extent permitted hereby, their respective successors and
assigns. Customer shall not assign this Agreement or any of
its rights hereunder, nor delegate any of its obligations
hereunder, without SunGard's prior written consent. SunGard's
consent shall not be unreasonably withheld in the case of an
assignment to a purchaser of or a successor to substantially
all of Customer's business, or to an affiliate of Customer,
provided that SunGard receives prior notice (in accordance
with Section 9.1) of the assignment together with the
successor's written undertaking to assume all of Customer's
obligations under this Agreement. Any change in control of
Customer, and any assignment by merger or otherwise by
operation of law, shall constitute an assignment of this
Agreement by Customer for purposes of this Section 9.3.
9.4 Relationship. The relationship between the parties created by
this Agreement is that of independent contractors and not
partners, joint venturers or agents.
9.5 Employee. Customer shall not, directly or indirectly (through
one or more subsidiaries or other controlled entities), hire
or offer to hire any programmer or data processing employee or
contractor of SunGard at any time when such person is employed
or engaged by SunGard or during the six (6) months after such
employment or engagement ends. For purposes of this provision,
"hire" means to employ as an employee or to engage as an
independent contractor, whether on a full-time, part-time or
temporary basis. This provision will remain in effect during
the term of this Agreement and for a period of one (1) year
after expiration or termination of this Agreement.
9.6 Entire Understanding. This Agreement, which includes and
incorporates the Schedules referred to herein, states the
entire understanding between the parties with respect to its
subject matter, and supersedes all prior proposals, marketing
materials, negotiations and other written or oral
communications between the parties with respect to the subject
matter of this Agreement. Any written, printed or other
materials which SunGard provides to Customer that are not
included in the Documentation are provided on an "as is"
basis, without warranty, and solely as an accommodation to
Customer.
9.7 Modification and Waiver. No modification of this Agreement,
and no waiver of any breach of this Agreement, shall be
effective unless in writing and signed by an authorized
representative of the party against whom enforcement is
sought.
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No waiver of any breach of this Agreement, and no course of
dealing between the parties, shall be construed as a waiver of
any subsequent breach of this Agreement.
9.8 Severability. A determination that any provision of this
Agreement is invalid or unenforceable shall not affect the
other provisions of this Agreement.
9.9 Headings. Section headings are for convenience of reference
only and shall not affect the interpretation of this
Agreement.
9.10 Jurisdiction and Process. In any action relating to this
Agreement, (a) each of the parties irrevocably consents to the
exclusive jurisdiction and venue of the federal and state
courts located in the Commonwealth of Pennsylvania, (b) each
of the parties irrevocably waives the right to trial by jury,
(c) each of the parties irrevocably consents to service of
process by first class certified mail, return receipt
requested, postage prepaid, to the address at which the party
is to receive notice in accordance with Section 9.1, and (d)
the prevailing party shall be entitled to recover its
reasonable attorney's fees (including, if applicable, charges
for in-house counsel), court costs and other legal expenses
from the other party.
9.11 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA EXCLUDING CHOICE OF LAW.
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