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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.51
DISASTER RECOVERY SERVICES MARKETING AGREEMENT
THIS AGREEMENT, dated as of the 15th day of December, 1998, between
Phoenix International Ltd., Inc., a corporation organized under the laws of the
State of Florida, 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx ("Phoenix") and
SunGard Recovery Services Inc., 0000 Xxxxxxxx Xxxx, Xxxxx, XX 00000, a
corporation organized under the laws of the Commonwealth of Pennsylvania
("SRS").
BACKGROUND
Phoenix is a recognized supplier in banking software. SRS is a
recognized provider of disaster recovery, communications recovery and
contingency planning services and software ("DR Services"). The parties desire
to provide to each other assistance and support in the marketing and support of
disaster recovery-related services to users of banking software produced by
Phoenix, all on the terms and conditions set forth in this Agreement.
Phoenix acknowledges that SRS is a subsidiary of SunGard Data Systems
Inc. ("SDS"), and that SDS, through its other subsidiaries, engages in the
following business areas:
(a) Trust and investment accounting, portfolio management and
administration, securities trading, custody and employee benefit plan systems
for financial institutions, stockbrokers and corporations; mutual fund, stock
and bond accounting systems for mutual funds, transfer agents and corporations;
accounting systems for nonprofit organizations.
(b) Trading, risk management and accounting systems for
derivative instruments, securities and foreign exchange for international
financial institutions, brokerage firms and corporations.
(c) Portfolio management and securities trading and accounting
systems for financial institutions, broker-dealers, insurance companies,
governments and corporation.
INTENDING TO BE LEGALLY BOUND, and in consideration of the foregoing
and the mutual covenants and agreements stated below, Phoenix and SRS agree as
follows:
1. CURRENT PHOENIX DISASTER RECOVERY SERVICES AND CUSTOMERS.
(a) Phoenix is currently engaged in the provision of certain DR
Services to licensees of its software pursuant to Disaster Recovery Services
Agreements substantially in the form attached hereto as Exhibit "A." Phoenix no
longer desires to provide such DR Services and SRS is willing to provide the DR
Services as specified herein. Phoenix shall provide SRS with a list of its
current customers for DR Services ("Current Customers"), along with the terms
of each Current Customer's agreement
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(b) for DR Services with Phoenix, including customer address and
contact name, fees (annual subscription and other) and term. Phoenix will
introduce SRS to each of its Current Customers and recommend that they contract
with SRS for DR Services. SRS may market its DR Services to such Current
Customers, and Phoenix shall provide reasonable assistance as requested by SRS
from time-to-time to encourage and assist each Current Customer to transfer its
DR Services from Phoenix to SRS.
(c) SRS shall enter into its standard Recovery Services Agreement
substantially in the form attached hereto as Exhibit "X" ("XXX") with each
Current Customer who chooses to contract for DR Services with SRS. Such RSA's
shall provide for DR Services for configurations at least equal to those
provided by Phoenix and shall have an initial term and subscription fee which
are equivalent to those in each Current Customer's agreement with Phoenix, if
any. Phoenix will release from their contracts and terminate such contracts for
all Current Customers who contract with SRS. SRS shall be solely responsible
for negotiating and executing the RSA's with the Current Customers and shall
not be obligated to enter into an RSA with terms and conditions different from
those specified in Exhibit "B."
(d) During the initial and any renewal term of each RSA with a
Current Customer, Phoenix shall provide, at no charge to SRS, reasonable
database and application support as required in support of SRS' provision of
testing and recovery DR Services to such customers.
2. COMMISSIONS TO PHOENIX. With respect to Current Customers who execute
an RSA with SRS, Phoenix shall not be entitled to any royalty, commission or
other fees unless and until the Monthly Run Rate (as defined below) of all
Current Customer RSA's signed within 180 days of the Effective Date of this
Agreement ("Conversion Period") exceeds $***. At the end of the Conversion
Period, SRS shall measure the Monthly Run Rate of all Current Customer RSA's
and shall pay Phoenix *** percent (***%) of the amount by which the total
Monthly Run Rate exceeds $***. Such commissions shall be paid within thirty
(30) days after the end of the Conversion Period. If the total Current Customer
RSA's is less than *** at the end of the Conversion Period or the Monthly Run
Rate of the Current Customer RSA's is less than $***, the amount of commissions
payable to Phoenix for future referrals as further described below shall be as
follows:
CUSTOMERS PERCENTAGE
*** ***
*** ***
*** ***
*** ***
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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"Monthly Run Rate" shall consist of the monthly subscription fee invoiced under
the RSA and shall not include any fees for block time, disaster declaration,
usage, testing or fees for specifically purchased computer hardware or special
services.
3. FUTURE BUSINESS. Provided that SRS is not in breach of any RSA with
any Current Customer, Phoenix shall, during the term of this Agreement, provide
SRS with the names, addresses and contact information for each of its
customers, and recommended SRS for DR Services ("Leads"). SRS shall register
any such Lead in accordance with its lead registration process, which includes
verifying that such Lead is not a current subscriber or active prospect of SRS.
SRS shall inform Phoenix within 48 hours of receipt of any Lead from Phoenix as
to whether the Lead can be registered. SRS shall use commercially reasonable
efforts to enter into RSA's with the Leads; provided, however, SRS shall not be
required to enter into RSA's with any international customers of Phoenix unless
in SRS' sole discretion SRS believes it can service such customers. Nothing
herein shall be construed to create an exclusive arrangement between Phoenix
and SRS.
If any Lead registered in accordance with SRS' then current registration
procedure executes an RSA with a commencement date which occurs during the term
of this Agreement, SRS shall pay to Phoenix a commission equal to
*** percent (***%) of the net committed revenue
under the particular RSA for DR Services applicable to platforms which are then
running Phoenix software. "Net committed revenue" under a RSA shall mean the
net subscription fees under the RSA excluding platforms and peripherals not
directly associated with the Phoenix software application, all upgrade fees,
disaster declaration and usage fees, equipment acquisition fees, block time and
testing fees or any fees for special services. No commissions will be paid in
connection with any RSA executed by the Lead more than twelve (12) months after
initial referral hereunder, or in connection with any RSA with entities who
then are active prospects of SRS or customers of SRS or who were registered
with SRS by a third party. SRS will make commission payments quarterly.
Commission payments shall be accompanied by an accounting of the calculation of
such fees.
4. CONFIDENTIALITY. The terms and conditions of the Mutual Non-Disclosure
Agreement attached hereto and Exhibit C are hereby incorporated by reference
and shall be a part of this Agreement.
5. DURATION AND RENEWAL; TERM CONCURRENT WITH PHOENIX RSA. This Agreement
is effective as of December 15, 1998 ("Effective Date"), and shall have an
initial term of five (5) years, unless otherwise terminated as set forth
herein. Thereafter, this Agreement shall renew from year to year for successive
one-year renewal terms unless either party shall give the other written notice
of nonrenewal not less than ninety (90) days prior to the anniversary date.
Either party may sooner terminate this Agreement upon notice to the other party
if (a) the other party is bankrupt or insolvent, or (b) the other party has
failed to perform any material obligation under this Agreement, and such
failure has continued for more than 30 days after written notice to such party
of such failure. Concurrent with the execution of this Agreement, SRS and
Phoenix have
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*** Denotes information that has been omitted from this Exhibit pursuant to a
confidential treatment request filed with the Commission.
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executed a Recovery Services Agreement whereby SRS is providing DR Services to
Phoenix for Phoenix's Heathrow, Florida location ("Phoenix RSA"). This
Agreement shall immediately terminate upon the expiration or termination of the
Phoenix RSA.
6. LIABILITY AND INDEMNIFICATION. Each party ("liable party") shall be
fully liable to the other party for any direct damages caused by any breach of
contract, negligence or willful misconduct of the liable party (or any of its
employees or agents) in connection with any matter related to this Agreement.
During the term of this Agreement and thereafter, each party will indemnify and
hold harmless the other party and its affiliates, and their officers,
directors, employees and agents, from and against any and all demands, claims,
actions, proceedings, orders, awards, decrees, judgments, debts, liabilities,
obligations, losses, damages, deficiencies, settlements, assessments, charges,
costs, penalties and expenses (including reasonable attorneys' fees and court
costs) (collectively, "Damages") directly or indirectly caused by, arising out
of or in connection with the breach of contract, negligence or intentional
misconduct of the liable party or its affiliates, employees or agents. In
addition, Phoenix shall indemnify and hold harmless SRS and its affiliates,
officers, directors and agents from and against any Damages arising out of or
in connection with Phoenix's breach of contract, negligence or willful
misconduct with respect to any recovery services agreement with a Current
Customer. SRS shall indemnify and hold harmless Phoenix and its affiliates,
officers, directors and agents from and against any Damages arising out of or
in connection with SRS' breach of contract, negligence or willful misconduct
with respect to any RSA with a Current Customer.
7. DISCLAIMERS AND LIMITATIONS. EXCEPT AS SET FORTH HEREIN, NEITHER PARTY
MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY NATURE WITH RESPECT TO ITS
OBLIGATIONS HEREUNDER, THE DR SERVICES, ANY OTHER SERVICES PROVIDED HEREUNDER,
OR ANY OTHER MATTER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
FURTHERMORE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, ANY
CUSTOMERS OR OTHER PERSONS FOR DAMAGES MEASURED BY LOST REVENUES, LOST PROFITS,
LOST BUSINESS OR BUSINESS EXPECTANCY, OR FOR ANY OTHER INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER OR NOT SUCH PARTY COULD HAVE FORESEEN SUCH
LOSS OR WAS ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH LOSS.
8. PRESS RELEASES AND PUBLICITY. Neither party shall issue any press
release or make any public announcements regarding the matters contained in
this Agreement without the prior written consent and approval of the other,
subject to applicable laws and regulations, including, but not limited to,
securities laws and regulations.
9. WARRANTIES. SRS warrants that it has the facilities, personnel and
experience necessary to provide the DR Services and to fulfill its obligations
under each RSA with a Current Customer. SRS agrees to perform its obligations
under any RSA in accordance with its terms. If SRS materially fails to perform
its obligations in accordance with any RSA with a Current Customer and such
failure is not substantially cured within the cure period, at the request of
Phoenix, SRS shall assign such RSA to
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Phoenix for performance. Upon any such assignment, Phoenix shall be entitled to
receive all fees under such assigned RSA's. Phoenix shall indemnify SRS for
Phoenix's breach of contract, negligence or willful misconduct with respect to
any assigned RSA.
Phoenix will not make any oral or written warranties or representations
regarding the DR Services or any other SRS products or services. SRS will not
make any oral or written warranties or representations regarding any Phoenix
products or services. Each party will conduct all of its activities under its
own name and will not use the other party's trademarks or trade names except as
expressly authorized by the other party.
10. FORCE MAJEURE. Neither party shall be liable for, nor shall either
party 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 military, civil or regulatory authority, change in any law or
regulation, disruption or outage of communications, power or other utility,
failure to perform by any supplier or other third party, or other cause which
could not have been prevented with reasonable care.
11. GENERAL. Notices and other communications under this Agreement will be
in writing and will be deemed to have been duly given if and when (a) delivered
personally or by a nationally-recognized overnight courier service, (b)
transmitted by facsimile, or (c) mailed by first-class certified air mail,
return receipt requested, postage prepaid, to the parties at their addresses
stated above, to the attention of Xxxx Xxxxxxxxxx, Senior Vice President -
Client Services (with respect to notices to Phoenix) and Xxxxxxx X. Xxxxxxxxx,
Senior Vice President and Chief Financial Officer (with respect to notices to
SRS).
The relationship between Phoenix and SRS will be that of independent
contractors, and no provision of this Agreement will be construed to constitute
SRS as a partner, joint venturer or agent of Phoenix. Neither party will have
any authority to bind the other party in any manner, and neither party will be
liable in any manner for the debts and liabilities of the other party. Neither
party will assign any of its rights or obligations under this Agreement to any
other person, whether by operation of law or otherwise, without the prior
written consent of the other party.
If any of the provisions of this Agreement are unenforceable, illegal
or invalid for any reason, the remaining provisions of this Agreement will be
unimpaired and will be enforceable without regard thereto, and the
unenforceable, illegal or invalid provisions will be replaced by mutually
acceptable provisions. This Agreement is made under, and will be construed and
enforced in accordance with, the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed solely therein, without
giving effect to principles of conflicts of law.
This Agreement, including any Schedules or Exhibits hereto, states the
entire and exclusive agreement between the parties with respect to the subject
matter hereof. This Agreement will not be modified except in a writing signed
by duly authorized representatives of each of the parties. For the purposes of
this Agreement, "person" means any individual, sole proprietorship, joint
venture, partnership, corporation, association, trust, estate, governmental
agency, regulatory authority, or any other entity, and "including" means
"including but not limited to."
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IN WITNESS WHEREOF, the parties hereunto set their respective hands
and seals, as of the date and year first above written.
SUNGARD RECOVERY SERVICES, INC. PHOENIX INTERNATIONAL LTD., INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxxxx
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Title: SENIOR VICE PRESIDENT Title: President & C.O.O.
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12/24/98
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