Exhibit 10.2A
3/21/97
* Confidential portion has been omitted and filed separately with the
Commission.
THIS COMPUTER SERVICES AGREEMENT is made and entered into this 21 day of March,
1997 (the "Effective Date") by and between Computer Outsourcing Services, Inc.,
a New York Corporation (hereinafter referred to as "COSI"), on the one hand and
Alicomp, a division of Alicare, Inc., (hereinafter referred to as "ALICOMP") on
the other hand.
WHEREAS COSI is in the business of providing computer related services for
ALICOMP and other ALICOMP commercial customers (herein individually called "an
ALICOMP customer" and collectively called "ALICOMP Customers"; and
WHEREAS ALICOMP is desirous of obtaining certain of these services provided by
COSI under terms and conditions set forth herein; and
WHEREAS COSI is desirous of providing certain related services to ALICOMP;
WITNESSETH
NOW THEREFORE in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties have agreed as follows:
1. DEFIN1TIONS
The following terms, when used herein, shall have the meanings ascribed to them
hereinbelow:
1. "ALICOMP Software" means the Software that is proprietary to ALICOMP or
the ALICOMP customer, which COSI shall use to provide the Services
hereunder.
2. "COMMUNICATIONS MANAGER" means the individual(s) that COSI shall
designate to receive all notices and/or formal communications under this
Agreement.
3. "COMPLIANCE" means, with respect to the Services, that such Services are
provided in accordance with the then-current Performance Standards.
4. "COMPUTER EQUIPMENT" means CPU's, terminals, direct access storage
devices, computers, keyboards, disk drives, disks, tape drives, tapes,
display devices, modems, multiplexors, peripherals, other input and
output devices, communications devices, routers, servers, gateways, and
all other computer hardware and equipment, as set forth in Exhibit A and
attached hereto.
5. "COMPUTER SYSTEMS" means applications and telecommunications network.
PAGE 1
6. "CONFIDENTIAL INFORMATION" means all confidential, non-public,
proprietary information relating to a party or its clients, prospective
clients, brokers and consultants, suppliers, or clients' clients and all
copies and tangible embodiments thereof in whatever form or medium,
including, without limitation, the Software, the Data, the Computer
Equipment, and all data, files, supplier, client and customer identities
and lists, accounting records, forecasts, project management plans,
marketing plans, business plans, systems designs, report formats, coding
techniques and routines, file handling and search techniques, data entry
handling routines, and report generation routines. It shall include
information provided in writing, graphically, electronically or orally
(if provided orally, it shall not be deemed Confidential Information
unless within thirty (30) days of disclosure it is identified as
Confidential Information in writing except for prospective clients, whose
identity shall be confidential regardless of how provided). Information
in writing shall be treated as confidential as of the date of receipt of
the written confirmation. Notwithstanding the foregoing, the term
Confidential Information shall not include information that: (i) is or
becomes publicly known through no wrongful act or breach of any
obligation of confidentiality on the part of the party receiving same;
(ii) is at any time received from a third party by the party that
receives the same in connection with this Agreement (unless the party
receiving the information has actual knowledge that the third party
supplying such information has breached an obligation to keep the
information confidential; (iii) was approved for release by written
authorization from the party that disclosed the same in connection with
this Agreement; or (iv) was disclosed without an obligation of
confidentiality to the party receiving the same without an obligation of
confidentiality. The parties ftirther agree that a party shall not be
liable for (I) inadvertent disclosure of Confidential Information
provided that (a) such party uses the same degree of care in safeguarding
such Confidential Information as it uses for its own proprietary
information of like importance and (b) upon discovery of such inadvertent
disclosure of such Confidential information, such party endeavors to
prevent any further disclosure, and (ii) unauthorized disclosure of
Confidential Information by persons who are or who have been in the
employ, unless it fails to safeguard such confidential Information with
the same degree of care it uses for its own proprietary information of
like importance.
7. "DATA" means files and factual information of any supplier or customer of
ALICOMP including but not limited to the respective operations that are
used to provide the Services as defined below.
8. "DATE OF FIRST PRODUCTIVE USE" means the date the provision of all
Services hereunder commences (the date ALICOMP uses COSI's Computer
Center on a live basis to process all its work). Such date shall be
evidenced by a document executed by both parties within ten (10) days
following such date in the form of Exhibit B attached hereto. If the
parties fail to execute such document, the Date
PAGE 2
of First Productive use shall be deemed to be thirty (30) days prior to
the date of issue stated on the first check in payment for the services
provided hereunder.
9. "EFFECTIVE DATE" means the date that this Agreement is signed.
10. "EMERGENCY SERVICES" means services which COSI must provide promptly (but
in any case, within one (1) hour of notice) upon request from ALICOMP.
Such services shall include without limitation, Services to respond to
ALICOMP needs and business requirements and to resolve problems,
regenerate tables and provide increased availability during monthly
financial reconciliation and year-end reporting.
11. "FACILITY LOCATION" means 000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 or other location approved by ALICOMP from which
the Services to be provided hereunder are so provided.
12. "FORCE MAJEURE EVENT" means any event beyond the control of a party,
including, but not limited to, acts of God, flood or fire not caused by
negligence or any intentional act of an employee, agent or subcontractor
of such party, earthquakes, acts of public enemies, and natural
disasters, or changes in requirements of law, government order or
regulation that prohibit or limit performance of the Agreement. Failure
of a third party to provide electricity shall be a force majeure event
only if the back up system provided by COSI is maintained and in good
working order at the time of the event.
13. "INTELLECTUAL PROPERTY" means copyrights, patents, trademarks, trade
secrets, and all other intellectual property rights.
14. "INTERNAL RESPONSE TIME" means the time it takes an instruction to go out
from a device (from the time the Enter key is hit) until the computer
response to the instruction (as that time is understood in the industry
with respect to MIPS), not including the delay a data communications
network will add ("Total Response Time"). For channel attached devices,
Total Response Time is the same as Internal Response Time.
15. "IPL" means Initial Program Load.
16. "MAINTENANCE SERVICES" means, with respect to any computer Equipment or
Software that COSI uses to provide the Services, all services necessary
to ensure that such COSI Computer Equipment or Software is in good
operating order an otherwise substantially conforms to the descriptions
of the same contained in the agreements pursuant to which COSI obtained
the right to use such Computer Equipment or Software to provide the
Services.
PAGE 3
17. "MAJOR PROBLEM" means any failure of the Services to be in Compliance
that ALICOMP, in the exercise of its reasonable discretion, determines
affects ALICOMP's ability to provide services to itself or its customers,
provided the failure is not caused by ALICOMP or its representatives or
customers or by any data or program installed by any of the foregoing.
18. "MINOR PROBLEM" means any failure of the Services to be in Compliance
other than a Major Problem, provided the failure is not caused by ALICOMP
or its representatives or customers or by any data or program installed
by any of the foregoing (other than data or programs so installed
pursuant to advice from or with the approval of COSI).
19. "MIPS" means Millions of Instructions Per Second.
20. "NEW ALICOMP SOFTWARE" means all software that is developed or purchased
by or for ALICOMP and used by COSI solely to provide the Services and for
no other purpose, including, without limitation, all derivative works of
ALICOMP Software.
21. "PRIME SHIFT TIME" means Monday through Friday 7:30 A.M. to 8:00 P.M. and
Saturday 7:30 A.M. through 3:00 P.M. inclusive fifty two weeks per year.
22. "NON PRIME SHIFT TIME" means all times of the day other than Prime Shift
Time.
23. "PERFORMANCE STANDARDS" means the standard of performing the Services
hereunder as set forth herein.
24. "SERVICES" means all functions and responsibilities described in Exhibit
A attached hereto, as modified from time to time.
25. "SOFTWARE" means Software (in Source Code and executable code forms) and
all programming, systems and user documentation related to such Software.
26. "SOURCE CODE" means, with respect to any computer program or portion
thereof, a full source language statement of such program and all
documentation related to maintenance for such program, including, without
limitation, all flow charts, schematics and annotations that comprise the
design specification for such program.
27. "TERMINATION COSTS" shall mean all reasonable costs of ALICOMP incurred
after termination of this Agreement for breach by COSI before the
expiration of the then-current term of this Agreement to obtain from a
third party for the balance of the then current term the Services on
substantially the same terms and
PAGE 4
conditions as those contained herein or to perform the Services itself,
including, without limitation (a) all costs associated with any Computer
Equipment or Software purchased, licensed or leased by ALICOMP from a
third party to obtain from a third party the services on substantially
the same terms and conditions as those contained herein (or to perform
the Services itself); (b) all amounts in excess of the amounts that would
have been paid to COSI hereunder to provide such Services; (c) all
reasonable out-of-pocket expenses (including, reasonable legal fees and
professional time) paid by ALICOMP to enter into all agreements required
to obtain the Services from a third party or perform the Services itself.
COSI's maximum liability hereunder shall be the greater of the total of
(a), (b) and (c) or the monthly fees times the remainder of months and
partial months in the then current term times one and one-half (1.5).
2. TERM
(A) The term of this Agreement shall commence on the Date of First Productive
Use and remain in effect for thirty-six (36) consecutive months. This
Agreement shall continue thereafter for a maximum of an additional 24
months unless ALICOMP shall have given 180 days notice of its wish to
terminate this Agreement. Notice may be given at any time after the
Agreement has been in effect for thirty months.
(B) Anything contained in this Agreement to the contrary notwithstanding,
this Agreement shall not be effective unless and until COSI enters into a
lease for the Facility Location.
3. COMMENCEMENT
(A) The Facility Location shall be ready to effectuate the Date of First
Productive Use no later than October 1, 1997.
(B) The Date of First Productive Use shall not be later than December 15,
1997 provided the Facility Location is in Compliance.
4. A. COMPUTING SERVICES
(1) Quality of Services. At all times during the term of this Agreement, COSI
shall provide the Services in Compliance.
(2) Manner of Performance. COSI shall cause all Services provided by it under
this Agreement, whether performed by COSI or its approved subcontractors,
agents or representatives, to be performed in a timely and professional
manner pursuant to the Exhibits attached hereto by qualified persons
fully familiar with the Computer Equipment and the operating system
Software as it relates to the applications software used by COSI to
provide Services, and in compliance with
PAGE 5
all laws, ordinances, rules and regulations, all requirements of
insurance policies, and all requirements of any third party that may have
provided any of the Software or Computer Equipment to COSI.
(3) Compliance with ALICOMP Rules. Each party shall ensure that its
employees, agents, and subcontractors shall obey, when on the premises of
the other party , all rules, regulations and security procedures and
other requirements of that party , and all reasonable instructions and
directions from that party and its designees.
(4) Key Employee(s): (i) COSI shall assign Xxxxxx Xxxxxxx for as long as he
is employed as a COSI employee, with management responsibility over COSI
as ALICOMP's Client advocate. In the event that Xxxxxx Xxxxxxx shall
cease to be a COSI employee, or cease to have day to day responsibility
over the COSI outsourcing activities ALICOMP shall have the right to
approve or disapprove his replacement as client advocate. If ALICOMP
shall disapprove his replacement, then COSI shall use its best efforts to
select a new client advocate acceptable to ALICOMP. COSI's client
advocate will assure ALICOMP that any COSI corporate policy that is made
during the term of this Agreements will be consistent with this Agreement
or make ALICOMP immediately aware if not so.; (ii) COSI shall assign
Xxxxxx Xxxxxxx to work as COSI's account representative for ALICOMP; In
the event that Xxxxxx Xxxxxxx shall cease to be a COSI employee, ALICOMP
-shall have the right to approve or disapprove his replacement as account
representative. If ALICOMP shall disapprove his replacement, then COSI
shall use its best efforts to select a replacement ALICOMP Account
Representative acceptable to ALICOMP.
4. B. SINGLE POINT OF CONTACT, FACILITY LOCATIONS & INSPECTION
(1) Communications Manager. (i) Within three (3) days after the Effective
Date, COSI shall designate in writing a qualified employee(s) of COSI
acceptable to ALICOMP to whom all communications from ALICOMP shall be
addressed and who has authority to act for COSI in connection with all
aspects of this Agreement. (ii) Within three (3) days after the Effective
Date, ALICOMP shall designate a qualified employee(s) of ALICOMP who has
authority to act for ALICOMP in connection with all aspects of this
Agreement. ALICOMP, in its sole discretion, may replace such employee(s)
from time to time during the term of this Agreement upon providing notice
of same to the Communications Manager. See Exhibit C attached hereto.
(2) Changes to Technology. From time to time during the term of this
Agreement, ALICOMP may provide notice to the Communications Manager that
the Computer Equipment or Software should be modified to reflect the
development of Software or Computer Equipment being used within the
overall COSI operating environment that is more effective or efficient
for the business needs of
PAGE 6
ALICOMP than that used to provide the Services at the time of such
notice. Upon receipt of such notice, the parties shall negotiate in good
faith to modify the Computer Equipment and/or Software accordingly to
reflect the inclusion of such Software and/or Computer Equipment if COSI
uses such new Software or Computer Hardware for its clients.
(3) Facilities Location. Except as expressly permitted herein, COSI shall
provide the Services solely from the Facility Location (sometimes known
as the "Information Technology Facility") and such other information
technology facilities for which COSI gives notice to ALICOMP and for
which ALICOMP provides to COSI written consent, which consent shall not
be unreasonably withheld. Any migration and moving costs and expenses
incurred by ALICOMP as a result of such services being provided from
another location, even if with ALICOMP's consent, shall be borne by COSI.
The failure to consent by ALICOMP to relocate to a facility located both
outside of Xxxxxx County and more than 10 miles from the New Jersey side
of the Lincoln Tunnel prior to 36 months from the Date of First
Productive Use shall not be deemed unreasonable.
(4) (a) Inspection. ALICOMP shall have the right from time to time, but in no
event to exceed two (2) times per year, to be exercised at ALICOMP's
option through its employees and third party consultants, auditors, or
agents, to observe and monitor all aspects.,of performance by COSI of it
obligations hereunder at COSI's place of performance, such observation or
monitoring shall be upon reasonable notice. All books and records of COSI
related to same shall be made available. COSI shall use its best efforts
to facilitate such observations and monitoring (including, without
limitation, providing access to any portion of COSI's premises where
performance is occurring). ALICOMP shall pay all costs and expenses of
ALICOMP employees and third party consultants, auditors or agents to
observe and monitor such performance. The ALICOMP employees, auditors and
agents who perform such observations and monitoring shall be required to
treat a Confidential Information any information disclosed to them during
such observation.
(b) In addition to the inspections performed by ALICOMP, ALICOMP's larger
ALICOMP Customers shall have the right to a similar inspection on the
same terms and conditions set forth in the paragraph immediately above.
ALICOMP shall take reasonable steps to limit the inspection right of its
customers and in no event shall more than ten (10) ALICOMP Customers have
the right to an inspection in any twelve (12) month period without prior
written consent of COSI and no ALICOMP Customer shall have the right to
perform more than one inspection per twelve (12) month period.
(5) Continuity. Notwithstanding anything to the contrary contained herein,
but subject to subparagraph 24.E., without prior consent of ALICOMP, COSI
shall not suspend performance of its obligations hereunder during the
term of this
PAGE 7
Agreement for any reason including, without limitation, any breach of the
Agreement by ALICOMP other than non-payment of undisputed amounts
becoming due hereunder for more than * after such amounts first became
due.
4. C. CHANGES TO SERVICES
(1) Technological Advances. COSI shall take all commercially reasonable
actions in accordance with the standards of the industry, without charge
to ALICOMP to (a) maintain all Computer Equipment and Software used by
COSI to provide Services at a technological level that will enable
ALICOMP to maintain its competitiveness; (b) to provide to ALICOMP
written descriptions of any technological advances scheduled for the
overall operating environment as such technology advances become
available and to provide at least thirty (30) days prior notice of the
scheduled changes; and (c) to share the benefits of new technology,
research and development.
(2) COSI shall not install or implement any Hardware or Software to provide
Services to ALICOMP which are unique to COSI without the prior written
consent of ALICOMP, which consent shall not be unreasonably withheld.
ALICOMP's refusal to grant its consent shall not be deemed to have been
unreasonably withheld if the Hardware or Software is not commercially
available or if a reasonable number of third party vendors do not provide
service contracts or replacement parts as applicable or if ALICOMP will
have to rely upon COSI to maintain the Hardware and Software after
termination of this Agreement.
4. D. MAINTENANCE AND SUPPORT
(1) Problem Reports. Upon acquiring knowledge of any Major Problem or Minor
Problem, ALICOMP shall report same to Communications Manager by
telephone. COSI shall provide qualified personnel twenty-four (24) hours
per day, seven (7) days per week, three hundred sixty five (365) days per
year to provide telephone service to respond to such telephone reports
from ALICOMP. Within one hour COSI shall provide ALICOMP with a status
report on its efforts to correct the problem, including a statement as to
whether COSI deems the problem to be a Major Problem or a Minor Problem.
(2) Major Problems. COSI shall correct all Major Problems or provide a
workaround within * of receipt of telephone reports from ALICOMP of such
Major Problems. COSI shall provide Emergency Services including but not
limited to qualified staff to work exclusively to correct Major Problems
until such Major Problems are corrected. ALICOMP shall cooperate with
COSI as may be reasonably necessary for COSI to correct such major
Problem; provided that such cooperation shall not interrupt the normal
business operations of ALICOMP. In the event that COSI fails to correct
such major
PAGE 8
* Confidential portion has been omitted and filed separately with the
Commission.
Problem or provide a workaround within * of receipt of ALICOMP's
telephone report of such Major Problem, ALICOMP may, at COSI's sole
expense, provide employees of ALICOMP or third parties to work at COSI's
premises to correct such Major Problem.
(3) Minor Problems. COSI shall use its best efforts to correct all Minor
Problems within * of receipt of telephone reports from ALICOMP of such
Minor Problems. ALICOMP shall cooperate with COSI as may be reasonably
necessary for COSI to correct such Minor Problems provided such
cooperation shall not interrupt the normal business operations of
ALICOMP.
(4) Support. COSI shall make available by telephone twenty-four (24) hours
per day, seven (7) days per week, three hundred sixty five (365) days per
year, qualified personnel necessary to answer questions from ALICOMP
regarding the, Services and to assist ALICOMP to use all features of the
Services fully and completely. COSI shall provide responses to all such
questions within one (1) hour after receipt of same.
(5) Service Levels. If COSI fails to provide the Services in Compliance, and
after notice to COSI setting forth the reason(s) for such failure,
discussions between the parties with respect to the failure and agreement
by COSI that the Services were not provided in Compliance the Monthly
Fixed Fee due after the month in which COSI so fails to provide such
Services shall be reduced as specified in this Agreement or Exhibits
attached hereto.
4. E. REPORTING
(1) Performance and Cost Reporting. In addition to any reports which are
required to be made by the Account Manager, COSI shall keep complete and
accurate records as may be necessary (i) to monitor the performance of
COSI obligations hereunder including, without limitation, as may be
necessary to determine whether the Services are in Compliance; and (ii)
to allocate costs to offices, practices, functional groups, commercial
clients, and similar divisions and subdivisions of ALICOMP; and (iii) any
other reasonable reports requested by ALICOMP. Within the first five (5)
business days after the last day of each calendar month, COSI shall
provide to ALICOMP such records relating to such calendar month in
machine readable form on media and in data formats as may be specified by
ALICOMP from time to time. ALICOMP may provide such records to third
parties. CIMS reports, or equivalent agreed to by ALICOMP, however,
needed to produce customer invoicing must be provided by the first day of
the month immediately preceding the month for which the information is
required.
(2) Planned Changes. As required, COSI shall provide to ALICOMP a complete
report of all modifications to the Computer Equipment and the Software
used by
PAGE 9
* Confidential portion has been omitted and filed separately with the
Commission.
COSI to provide the Services that are planned by COSI to the ALICOMP
operating environment. COSI shall discuss with ALICOMP any objections
ALICOMP may have to such modification and shall use its best efforts to
resolve all issues raised in connection with such objectives.
(3) Meetings. From time to time during the term of this Agreement, within
five (5) business days after written request for a meeting with COSI.
COSI shall meet with ALICOMP at ALICOMP's premises or at such location as
may be reasonably designated by ALICOMP to discuss the performance of
this Agreement by COSI. COSI shall use its best efforts to ensure that
any employee or agent of COSI that may be specified by ALICOMP attends
such meetings.
5. A. PERFORMANCE STANDARDS
(1) (i) Computer and Data Network Availability. For both batch and on-line
capabilities, computer and data network availability and attended
computer operators will be provided seven (7) days per week, twenty-four
(24) hours per day, three hundred sixty five (365) days per year, except
for prescheduled preapproved Non Prime Shift Time maintenance coordinated
in advance with ALICOMP. Additional or special requirements for
maintenance will be coordinated with ALICOMP as soon as practical.
(ii) COSI guarantees that the standard for computer and data network
availability will be * of the time twentyfour (24) hours a day, seven (7)
days per week, three hundred sixty-five (365) days per year (herein
called "the Standard").
(2) (a) Application availability. Unless ALICOMP approves otherwise, in
writing, all updated production on-line applications shall be fully
functional and available to ALICOMP and ALICOMP's Customers no later
than 7:30 A.M. each morning and will be available thereafter continually
until the daily batch cycles have to be run. The batch cycle will be run
no earlier than 8:00 P.M. and no later than is necessary to comply with
the 7:30 A.M. requirement; assuming "batch window" requirements for
meeting system schedules remain consistent with performance prior to the
Date of First Productive Use at COSI.
(b) ALICOMP shall use its best efforts to fully test each new application
or change to any existing application or operating system release
(software changes) so as to minimize any Major Problems or Minor Problems
that my results from its use. ALICOMP shall sign off on each change
before it will be moved from Test to Production. Internal response time
standards will be reviewed for compliance after each application change
and jointly agreed upon with COSI. COSI shall attempt to balance and tune
standards back in compliance. If additional resources are required to
bring the performance back into compliance due to any change caused by
ALICOMP, ALICOMP may purchase such
PAGE 10
* Confidential portion has been omitted and filed separately with the
Commission.
additional resources from COSI or agree to change the Standards. If
client changes such standards such changes will be the responsibility of
ALICOMP.
(c) COSI will use its best efforts to make software changes required for
COSI to be in Compliance and use its best efforts to maintain the same
Performance Standards that existed just prior to the software change.
ALICOMP acknowledge that new releases can cause intermittent problems
that cannot be foreseen in advance and may not be detected during the
testing of same in that regard. Balancing and tuning will be immediately
attended to by COSI and COSI will promptly provide ALICOMP Emergency
Services to bring the standard back to what it was prior to the change.
(d) It is ALICOMP's responsibility to provide COSI with information that
it may be in possession of which may help COSI to prepare for software
changes requested by ALICOMP or new ALICOMP business which would require
more resources. Should more MIPS, DASD or labor (resources) be required
to handle a software change, COSI shall use its best efforts to provide
such additional resources in a prompt and timely manner. ALICOMP will pay
COSI, pursuant to this Agreement, for such increased resources.
Additionally, ALICOMP will cooperate with COSI and provide its best
effort to bring the standard back to those in effect prior to the
software changes should those standards be impacted.
(e) ALICOMP shall not prevent COSI from changing operating systems
software as mandated by IBM or other third parties beyond the point where
such software will not be supportable. COSI shall give ALICOMP no less
than one hundred and twenty (120) days notice prior to the need for such
operating systems change.
(f) For the seven (7) days immediately following software changes, the
system availability and Internal Response Time shall not be relied upon
in the measurement of the Standard for COSI to be in Compliance.
(3) Internal Response Time.
a) For the ALICOMP Customers COSI will meet or exceed Internal Response
Time standards. The Internal Response Time shall be measured at
ALICOMP's current location in the sixty (60) day period immediately
preceding the Date of First Productive Use. The method for capturing
current Internal Response Time and Total Response Time levels shall
be agreed upon during migration and those results will be used for
comparison with performance levels provided by COSI and reported to
ALICOMP.
b) Guaranteed average CICS Internal Response Time for ALICOMP shall be
less than * for all transactions * of the time as measured over any
* consecutive business days. Exhibit D
PAGE 11
* Confidential portion has been omitted and filed separately with the
Commission.
Internal response time schedule shall be the log of daily CICS
Internal Response Time for production applications produced by
ALICOMP at its current location in the sixty (60) business day
period immediately preceding the Date of First Productive Use. That
will confirm sub-second Internal Response Time for the current
applications mix and volumes detailed.
c) Internal Response Time for Alico Services Corporation ("ASC") VM,
VSE, MVS, CICS Production transactions will meet or exceed current
performance levels of its current location as measured in the sixty
(60) days immediately proceeding the Date of First Productive Use.
ALICOMP and COSI will select specific transactions to find a
sampling scheme and a toll to measure Internal Response Time for
comparison purposes. Schedule D shall reflect these measurements and
shall be annexed hereto prior to the Date of First Productive Use.
d) Total Response Time for interactive use by ALICOMP Customers will
not differ from current performance levels of its current location
as measured in the sixty (60) days immediately proceeding the Date
of First Productive Use. COSI and ALICOMP will select a sample set
of representative work stations for comparison monitoring and shall
list such measurements on Schedule D to be attached hereto prior to
the Date of First Productive Use.
e) The damages for failing to meet the requirements set forth in
subparagraphs (a) through (d) are set forth in Paragraph 17..
Consistent with the provisions of subparagraph 5.A.(2) above, the
seven (7) day period immediately proceeding a software change, or
the addition of new ALICOMP business, will not be included in
Internal Response Time or Total Response Time measurements as it
relates to Performance Standards being in Compliance or in the
calculation or measurement of damages.
(4) Processors. ALICOMP's ability to conduct its business will not be
adversely affected by restriction on the number of regions or partitions
available pursuant to this Agreement.
(5) Technical Support. Technical and Operational Support will be available
twentyfour (24) hours per day, seven (7) days per week on an on call
basis. These services include but are not limited to the serviced
described in functional responsibilities set forth in Exhibit A attached
hereto.
(6) For as long as Xxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxx Ring, Xxxx Xxxxxxxxxxxx,
Shanti Dipnraine and Xxxxx Xxxxxxxx are employed by ALICOMP or are
otherwise providing services to ALICOMP, ALICOMP will have access to
their services: (1) for the purpose of providing the Services in this
Agreement in Compliance; (2) for utilizing their skill sets and knowledge
of current and near term ALICOMP customers as referred to in Exhibit E
attached hereto and for promptly
PAGE 12
helping ALICOMP evaluate prospective customer needs including the
preparation of proposals, site visits, and any other activity required to
facilitate the acquisition of new business. It is anticipated that these
individuals shall remain ALICOMP employees or contractors, however the
cost of their services, including wages, overtime, benefits and taxes
where applicable, shall be set off against the fees payable by ALICOMP to
COSI pursuant to Exhibit A hereto. Annual Reviews for all ALICOMP
employees shall be done in concert with COSI senior management, it being
understood, however, that the amount of an individual's wage increase
will be subject to and be in conformance with COSI's standard review,
appraisal, and compensation policy. During the term of this Agreement,
ALICOMP and COSI shall agree if ALICOMP wishes to transfer the employment
or contractor status of one or more of the above referenced individuals
form ALICOMP to COSI.
(7) Help Desk. Help Desk ("HD") shall be available twenty-four hours a day,
seven (7) days a week. Functional responsibilities shall be set forth in
Exhibit A.
(8) Impact Printing. ALICOMP COSI shall perform all of the computer impact
printing functions, including but not limited to, the functions described
in Exhibits F attached hereto. COSI shall (i) perform all associated
paper and form storage functions, and (ii) perform the once daily
distribution of printed data from COSI to ALICOMP headquarters in NYC
offices at approximately 10:00 AM each business day.
(9) Tape Drives and Tapes. COSI will provide, as set forth in Exhibit A
attached hereto.
(10) Disk Storage Devices (DASD). COSI will supply storage devices with
appropriate controllers as set forth in Exhibit A attached hereto.
(11) Data Network Facilities. Data network facilities shall be provided as set
forth in Exhibit A and Exhibit G attached hereto.
(12) Computer Operations. Functional responsibilities regarding the providing
of services, including production control, are set forth in Exhibit A
attached hereto.
5. B. PHYSICAL ACCESS
(1) Access to COSI's buildings and data center will be restricted by use of card
entry or similarly secure system. Security personnel shall be located on site
twenty-four (24) hours a day, seven (7) days per week.
(2) ALICOMP's employees, ALICOMP's Customers, and third party contractors
engaged by ALICOMP, shall have access to the ALICOMP offices at the Information
PAGE 13
Technology Facility on a 24 hour a day basis seven days a week basis subject to
compliance with COSI's security procedures.
6. FEES
Fees are set forth in Exhibit A attached hereto.
7. DISASTER RECOVERY
Services shall be provided as set forth in Paragraph 24.E. and F. and Exhibit H
attached hereto.
8. OWNERSHIP OF SYSTEMS AND MATERIALS
A. All systems, programs, operating instructions, and other documentation
prepared for ALICOMP by COSI shall be and remain the property of ALICOMP.
B. Subject to Paragraph 18, upon termination of this Agreement, (i) all of
ALICOMP's information retained in COSI's master files shall be made
available to ALICOMP on magnetic tapes provided by ALICOMP; (ii) COSI shall
return to ALICOMP all documents and written records of transactions and
magnetic tapes and magnetic media belonging to ALICOMP; (iii) COSI shall
erase all magnetic memory of ALICOMP's information no earlier than one (1)
year following termination unless directed to do so by ALICOMP; and (iv)
COSI shall provide any other documentation, including but not limited to,
operating procedures and instructions to enable ALICOMP to transfer this
documentation to ALICOMP or any third party it so designates.
9. SOFTWARE AND COMPUTER EQUIPMENT
A. Non IBM Party Software. COSI shall be solely responsible for obtaining
and maintaining in ALICOMP's name all rights and licenses to operating
systems and applications software to be granted by any of the vendors that
are necessary for COSI to provide ALICOMP the Services in accordance with
this Agreement; provided, however, that COSI shall not use any Software
(other than IBM system software) to provide such Services without the prior
written consent of ALICOMP, which consent shall not be unreasonably
withheld. ALICOMP's consent will not be deemed to be unreasonably withheld
with respect to any Software, the owner of which fails to provide written
assurance that it will license such software to ALICOMP, its successor, or
to COSI's successor should this Agreement terminate for any reason. Upon
termination of the Agreement, COSI shall deliver to an entity designated by
ALICOMP all of the non IBM software licenses COSI required immediately
prior to the termination of this Agreement to perform hereunder including
the ALICOMP licenses in effect on the Effective Date hereof as is listed
PAGE 14
on Exhibit I, provided ALICOMP or its affiliates or its customers had a
valid license on the Effective Date of this Agreement or thereafter.
B. Documentation Requirement. In addition to any other information that
ALICOMP may request regarding Software and Computer Equipment for which
COSI requests written consent, COSI shall provide access to ALICOMP to all
technical manuals and other documentation for such Software and Computer
Equipment in such reasonable amounts as ALICOMP may request from time to
time.
C. Software License. Subject to all terms and conditions contained herein,
ALICOMP hereby grants to COSI during the term of this Agreement, a
non-exclusive, nontransferable, world-wide, royalty free license to use,
copy, and create derivative works of the Software and the newly acquired
Software solely to perform the obligations of COSI hereunder.
10. WARRANTEES
A. Performance Warranty - COSI. COSI represents and warrants that at all
times during the term of this Agreement: (i) the Services shall be in
Compliance; and (ii) the Services will be performed by qualified personnel
in a professional and workmanlike manner which meets or exceeds industry
standards.
B. Performance Warranty - ALICOMP. ALICOMP represents and warrants that any
Services provided by ALICOMP employees or contractors will be performed by
qualified personnel in a professional and workmanlike manner. This shall
not be deemed, however, to relieve COSI of any responsibility it might have
to provide the Services in Compliance,
C. Computer Equipment. COSI represents and warrants that COSI shall keep all
Computer Equipment that COSI uses to provide the Services in good operating
condition and shall undertake all repairs and preventive maintenance
required in accordance with industry standards and practices. All Computer
Equipment and Software shall be under a maintenance agreement with the
manufacturer or commercially equivalent provider which covers Prime Shift
and Nonprime Shift time.
D. Software Integrity. C OSI represents and warrants that no component of the
New ALICOMP Software or the COSI Software shall include any feature or
function which may enable COSI to: (i) discontinue at any time during the
term of this Agreement or thereafter ALICOMP's effective use of the same;
(ii) erase, destroy, corrupt, or modify without the consent of ALICOMP of
any ALICOMP Data or other date stored on Computer Equipment used by
ALICOMP; or (iii) bypass any internal or external software security measure
without the consent or knowledge of ALICOMP to obtain access to such
ALICOMP Data or other data. COSI xxxx
XXXX 15
advise ALICOMP if it learns that a third party may accomplish any of the
foregoing
E. Authority. Each party represents and warrants that it has all power and
authority necessary to enter into and to perform this Agreement, and that
upon execution and deliver, this Agreement shall be a legal, valid and
binding obligation of such party enforceable against it in accordance with
its terms.
F. Infringement. (i) COSI represents and warrants that the New ALICOMP
Software, the COSI Software and the Services do not and shall not infringe
upon or misappropriate any Intellectual property of any third party; (ii)
ALICOMP represents and warrants that ALICOMP Software and the New ALICOMP
Software, if any, do not and shall not infringe upon or misappropriate any
Intellectual Property of any third party.
G. No Claims. (i) COSI represents and warrant that no claim (whether or not
embodied in an action, past or present) has been made to it that the COSI
Software infringes or misappropriates any Intellectual Property and that no
such claim is pending against COSI or against any entity from which COSI
obtained such rights; (ii) ALICOMP represents and warrants that no claim
(whether or not embodied in an action, past or present) has been made to it
that the ALICOMP Software and/or the New ALICOMP Software infringes or
misappropriates any Intellectual Property and that no such claim is pending
against ALICOMP or against any entity from which ALICOMP obtained such
rights.
H. Disclaimer of Warranty. Except as expressly specified herein, no party
makes any other warranty, expressed or implied, and both parties disclaim
the implied warranties or merchantability or of fitness for a particular
purpose.
11. LIMITATION OF REMEDIIES
In addition to the rights and obligations set forth in Paragraph 17:
A. COSI Limitation of Liability. COSI's maximum liability for direct damages
arising out of, or resulting from each breach of this Agreement by COSI
shall be * of the net fixed minimum overall fee at the time of such breach.
COSI shall have no liability for any services provided by ALICOMP to
ALICOMP Customers under agreements between ALICOMP and ALICOMP Customers
(herein individually called a "Customer Agreement" and collectively called
"the Customer Agreements") except and only to the extent that ALICOMP under
any Customer Agreement in effect as of the Effective Date of this Agreement
is obligated to such ALICOMP Client for failure to provide such services.
Any limitation of liability available to ALICOMP under such Customer
Agreement shall likewise be available to COSI. COSI shall have no liability
for any services ftirnished under any Customer Agreement entered into
during the term of this
PAGE 16
* Confidential portion has been omitted and filed separately with the
Commission.
Agreement, unless agreed to by COSI in writing at or prior to the time the
ALICOMP Customer Agreement is entered into. Provided, however, that if
ALICOMP Customers terminate their agreement(s) with ALICOMP for reasons
arising out of COSI's failure to be in compliance with the Performance
Standards then ALICOMP shall be entitled to show such terminations as proof
of COSI's breach of this Agreement in any dispute resolution process or
litigation.
B. ALICOMP's Limitation of Liability. ALICOMP's maximum liability for direct
damages arising out of, or resulting from, each breach of this Agreement by
ALICOMP shall be an amount equal to * of the net fixed minimum annual fee
at the time of such breach.
C. General Limitation of liability. Each party's liability in the aggregate
arising out of, or relating to, this Agreement, from any cause whatsoever,
and regardless of the form of action (whether in contract or in tort,
including negligence) shall be limited to direct damages in the aggregate
up to *. Neither party shall be liable for any indirect or consequential
damages or for the loss of data even if such party shall have been advised
of the possibility of the liability of such potential loss or damage.
12. CONFIDENTIAL TREATMENT OF INFORMATION
A. (1) Use and Disclosure. Except as expressly provided otherwise herein, each
party shall keep and maintain the Confidential Information disclosed to,
learned by, or otherwise acquired in connection with the Services or this
Agreement by, such party in strict confidence, whether in oral, written or
graphical form, and shall not use or disclose the same except: (i) to
employees or consultants of such party who need access to such Confidential
Information to perform their obligations to the other and who have entered
into written agreements with such party containing obligations of
confidentiality substantially similar to those contained herein; or (ii) as
required by law or court order. (2) In the event that a party received a
request to disclose all or any part of any Confidential Information
disclosed to, learned by, or otherwise acquired in connection with the
Services or this Agreement by it hereunder under the terms of a valid and
effective subpoena or order issues by a court of competent jurisdiction or
by a judicial or administrative agency or legislative body or committee,
such party agrees to (i) immediately notify the other of the existence,
terms and conditions surrounding such request; (ii) consult with the other
on the advisability of taking available legal steps to resist or narrow
such request; and (iii) if disclosure of such Confidential Information is
required or deemed advisable, exercise its best efforts to obtain an order
reliable assurance that confidential treatment will be accorded to such
portion of the Confidential Information to be disclosed which each party
designates. Both parties shall be liable for any breach by its employees,
consultants or agents of the provisions of this Agreement as such employee,
consultant or agent is acting within the scope of his/her authority at the
time of the breach. Each employee, consultant or agent of
PAGE 17
* Confidential portion has been omitted and filed separately with the
Commission.
each party shall take all steps (by instruction, agreement or otherwise)
necessary to maintain the confidentiality of the Confidential Information
and use the same degree of care it uses to avoid disclosure of its own
Confidential Information of like importance.
B. Return of Confidential Information. Upon any expiration or termination of
this Agreement or upon reasonable request, unless otherwise expressly
specified in this Agreement, each party shall return all Confidential
Information disclosed to, learned by, or otherwise acquired in connection
with the Services of this Agreement by each party to the other.
C. Remedy. Each party acknowledges and agrees that breach of this Section 12
with respect to Confidential Information disclosed to, learned by, or
otherwise acquired in connection with the Services or this Agreement by
such party by any party may cause immediate and irreparable harm to the
other for which the payment of money may not adequately compensate the
other. Therefore, upon being advised of a breach of Section 12 with respect
to Confidential Information, each party agrees to take immediate steps to
secure such breach. In the event that the party that committed the breach
fails to notify the other within one (1) business day that it has cured the
breach, the aggrieved party shall be entitled to seek injunctive and other
relief. In addition to the foregoing, the aggrieved party shall be entitled
to any relief provided in this Agreement for damages incurred as a result
of the breach.
13. AUDITS
Upon reasonable notice and compliance with COSI's written security procedures (a
copy of which will be provided to ALICOMP by the Effective Date) COSI agrees to
permit ALICOMP, or its agents or designees, to audit the procedures for handling
and processing of ALICOMP Data covered by this Agreement. ALICOMP shall have
access to third party audits, internal EDP audits, and shall have the ability to
audit bills and invoices submitted to ALICOMP for payment. COSI agrees to comply
with all reasonable audit recommendations.
14. MODIFICATIONS OF PROCEDURES
COSI may, at its reasonable discretion, make changes in its standards and
procedures for providing computing services in Compliance. COSI agrees to notify
ALICOMP, in advance, of all changes.
15. TERMINATION FOR NONPAYMENT
In the event ALICOMP fails to pay charges properly invoiced to ALICOMP by COSI
within * after the date on which such payment is due, COSI, in its discretion,
may terminate this Agreement thirty (30) days after written notice to
PAGE 18
* Confidential portion has been omitted and filed separately with the
Commission.
ALICOMP; unless ALICOMP has tendered the overdue payment before the expiration
of such thirty (30) day notice period,
16. INSURANCE
COSI shall procure and maintain through the term of this Agreement, at COSI's
sole cost and expense, at least the following types and amounts of insurance
coverages.
A. COMMERCIAL GENERAL LIABILITY INSURANCE (including premises/operations
liability, independent contractors liability, contractual liability,
product liability, completed operations liability, broad form property
damage liability, personal injury liability, and extended bodily injury and
death coverage) in a minimum amount of $1,000,000 per occurrence and
$2,000,000 aggregate combined single limit for bodily injury (including
death, personal injury, or property damage).
B. FIDELITY EMPLOYEE INSURANCE INCLUDING COMPUTER CRIME INSURANCE providing
coverage for direct or indirect loss to ALICOMP including any loss of
money, securities, or property other than money or securities to clients
and any legal liability of ALICOMP arising out of or related to fraudulent
or dishonest acts committed by the employees of COSI or its subcontractors,
whether identified or not acting alone or in collusion with others, in a
minimum amount of $5,000,000 with full indemnification of ALICOMP.
C. COMMERCIAL AUTOMOBILE LIABILITY INSURANCE including coverage for owned,
hired, and non-owned vehicles with a combined single limit of $1,000,000
per occurrence for bodily injury, personal injury (including death), and
property damage.
D. UMBRELLA LIABILITY INSURANCE in minimum of $2,000,000.
E. WORKERS COMPENSATION INSURANCE covering COSI's employees in an amount not
less than the limits required by law and Employers Liability Insurance
covering COSI's employees in an amount not less than $500,000 per
occurrence.
F. RISK OF LOSS COSI is responsible for risk of loss of care, custody and
control, or damage to all Computer Equipment and Software within its
possession or control on site at the facility.
G. ERRORS AND OMISSIONS providing a minimum of $21,000,000 per occurrence.
17. DEFAULTS AND REMEDIES
A. Upon any material breach of this Agreement or any series of breaches that
collectively constitute a material breach of this Agreement by COSI,
ALICOMP
PAGE 19
shall give notice followed by written confirmation to COSI stating with
reasonable specification the nature of such material breach. COSI shall,
where the breach has a material adverse impact on ALICOMP, immediately
initiate Emergency Services to correct the breach and continue these
efforts by reasonable means in order to correct the breach. In the event
the breach is not remedied within ten (10) days of receipt of written
notice ALICOMP may, at ALICOMP's sole discretion, give COSI a thirty (30)
day written notice of its intent to terminate this Agreement. If the breach
is cured within such thirty (30) day period after notice is given prior to
termination, ALICOMP may, at its sole discretion, advise COSI of its
intention not to terminate this Agreement by giving COSI reasonable notice
of such intent as soon as practicable under the circumstances. If ALICOMP
elects to terminate this Agreement, COSI shall fully cooperate in ALICOMP's
migration to a new arrangement and provide the Termination Services and
Termination Assistance itemized in Paragraph 18. Notwithstanding such
termination, COSI shall be required to continue to provide the Services at
a prorata daily usage rate. In addition, COSI shall be obligated to
reimburse ALICOMP for its Termination Costs.
B. The parties have recognized and agreed that the damages which ALICOMP would
sustain in the event that COSI fails to make the computer and data network
available in accordance with the requirements of Paragraph 5 or fails to
make the applications available or fails to meet the Internal Response
Times all as set forth in Paragraph 5 of this Agreement would be difficult
to measure and have agreed to the following formula for the calculation of
such damages as their best estimate of the calculation of such damages and
not as a penalty.
(1) Computer, applications and data network unavailability for ASC only. There
shall be no damages for any month in which the computer, Applications and
data network is available to ALICOMP for * of the time irrespective of what
times during the month the computer, Applications, and data network is
unavailable unless caused by ALICOMP. If the computer, Applications and
data network is unavailable for more than * of the time during any month
then for each hour of the time during that month that the computer,
application and data networks is unavailable beyond * of the time the fees
for that month that would otherwise be due to COSI shall be reduced by the
sum of * dollars for each hour, (prorated to the nearest minute) for which
the computer, Applications and data network is unavailable during Prime
Shift Time and * dollars for each hour during which the computer and data
network is unavailable during the Non-Prime Shift Time. As used herein the
term "data network" shall mean the T-1 link backed up by a second T-1 link
between the COSI Information Technology Facility and ASC headquarters at
000 XXXXXXXX, XXX XXXX, XX 00000, as well as the link to the ALICARE
affiliate's facility backed up by a dial-up connection in Salem, New
Hampshire.
PAGE 20
* Confidential portion has been omitted and filed separately with the
Commission.
(2) Internal Response Times: Unless caused by ALICOMP, if average internal
response times for ASC applications, as qualified in Paragraph 5.A.(3)a)
and b), fails to be less than * for all transactions * of the time as
measured over any * consecutive business days the fees for the month in
which a majority of the * days fall which would otherwise be due to COSI
shall be reduced as follows: If the average internal response time for ASC
production applications is less that *, as measured over any * consecutive
business days, for less than * of the time (that is, the average response
time for all ASC production applications processed over the above
referenced * consecutive business days must be * or less as confirmed by
Schedule D referenced in Paragraph 5.A.3) -the fee shall be reduced as
follows: For each additional * of the time for which the average response
time is more than * over the measuring period set forth in this
subparagraph the fee shall be reduced by *.
(3) ALICOMP Customer Computer, Application and Data Network Unavailability.
Except for ASC the damages set forth in Subparagraph 17.B.(l) or 17.B.(2)
shall not be applicable unless ALICOMP is obligated to pay such damages to
its customers and in such event damages shall be limited to the amounts to
which ALICOMP is obligated to pay to its customers and in no event shall be
due with respect to any customer ,other than a ALICOMP hospital customer,
provided, however, that in the event that such unavailability becomes
material then ALICOMP may terminate this Agreement, subject to COSI's right
to effectuate a cure of the unavailability.
(4) In no event shall the damages set forth in 17.B.(l) in the aggregate for
any month exceed *.
(5) In addition to the foregoing damages but subject to the occurrence of any
Force Majeure Event ALICOMP shall be entitled to terminate this Agreement
if in any * consecutive day period either the computer, Applications,
and/or data network or a combination thereof are unavailable for more than
* hours due to the action or inaction of COSI or average internal response
time for all ASC production transactions is more than * over the same
period.
18. TERMINATION RIGHTS
A. Termination Services. Upon any termination or expiration of this Agreement
for any reason including, without limitation, for breach by ALICOMP, other
than nonpayment of undisputed amounts for more than three (3) months after
such amounts become due, COSI shall provide to ALICOMP all services and
assistance necessary to enable ALICOMP at ALICOMP's option either: (i) to
commence performance of the Services; or (ii) to enter into all agreements
with third parties necessary to
PAGE 21
* Confidential portion has been omitted and filed separately with the
Commission.
enable such third parties to provide to ALICOMP the services and to
commence providing the Services to ALICOMP.
B. Termination Assistance. At the expiration or termination of this Agreement
and as part of the inducement of ALICOMP to enter into this Agreement,
regardless of the reason for such expiration or termination (other than for
non-payment of undisputed amounts for more than * after amounts become
due), COSI will cooperate with ALICOMP and provide ALICOMP with assistance
to establish substitute or replacement Services to ensure the orderly
transfer, with minimal disruption to ALICOMP or its designee of the
Services provided by COSI hereunder. Therefore, commencing upon any notice
of termination or expiration, or of non-renewal (including, without
limitation, a termination resulting from a material breach or default by
ALICOMP), ALICOMP may direct COSI to perform and, if so directed, COSI
shall perform Services in connection with migrating the work of ALICOMP and
its affiliates to a new service provider. These termination assistance
services shall be provided during the remainder of the term of this
Agreement, if any, and for services other than data processing shall be
provided for so long as ALICOMP in its sole discretion may determine. The
assistance services shall include providing ALICOMP and its agents,
contractors, and consultants, as necessary, with reasonable access to all
Software and Computer Equipment then being used by COSI to provide the
Services until the effective date of termination or expiration. The
assistance services described above shall include, but are not limited to,
the following:
C. PRE-MIGRATION SERVICES
i) Freezing all non-critical changes to Software. ALICOMP's customers shall
unilaterally determine which changes are critical;
ii) Notifying all outside vendors of procedures to be followed during the
turnover phase;
iii) Reviewing all Software libraries (tests and production) with new service
provider;
iv) Analyzing space required for the databases and Software library;
v) Generating a tape and computer listing of the Source Code in a form
reasonably requested by ALICOMP; and
vi) Providing training to new operations staff.
vii) NOTIFICATION TO SOFTWARE VENDERS OF THE MIGRATION/
PAGE 22
* Confidential portion has been omitted and filed separately with the
Commission.
D. MIGRATION SERVICES
i) Unloading the production databases;
ii) Delivering tapes of production databases (with content listing) and all
items listed in Paragraph 8 to new operations staff;
iii) Assisting with the loading of the databases;
iv) Assisting with the telecommunications turnover; and
v) Assisting in the execution of a parallel operation.
E. POST-MIGRATION SERVICES
i) Consulting support on an "as needed" basis for up to ninety (90) days as
may be requested by ALICOMP; and
ii) Turnover of any remaining reports and documentation still in the possession
of COSI; and
iii) Affiliates. At ALICOMP's request, COSI agrees to provide the types of
termination assistance described in this Section 18 to any customer or part
of customer of ALICOMP that ceases during the term of the Agreement at the
internal cost of COSI plus * as set forth in Section 4.C)(2) herein
above;and
iv) Termination Costs. If ALICOMP terminates Agreement for breach by COSI, COSI
shall pay to ALICOMP Termination Costs associated with such termination
and;
v) ALICOMP shall not be prohibited from soliciting for employment by ALICOMP
any other party that ALICOMP desires, those COSI employees who were former
employees of ALICOMP or COSI employees who have gained critical and
extensive knowledge of ALICOMP's operational services during the term of
this Agreement except those current COSI employees named in Schedule G
attached hereto.
19. INDEMNITY
A. COSI shall defend, indemnify, and hold ALICOMP harmless from and against,
and shall pay all costs, fees and expenses (including reasonable attorney's
fees) of ALICOMP associated, with any claim by any third party: (a) that
results from any breach by COSI of any representation, warranty or other
obligation contained herein or (b) that relates in any way to any act or
omission of any employee or subcontractor of COSI or client. ALICOMP upon
receipt of notice of a claim
PAGE 23
* Confidential portion has been omitted and filed separately with the
Commission.
covered by the terms hereof will promptly notify of any claim or litigation
to which the indemnity set forth herein applies. COSI will assume the
defense of such claim at its sole cost and expense. ALICOMP shall cooperate
in such defense or settlement at the indemnitor's cost and expense. The
indemnitor shall not enter into any settlement imposing any liability or
restriction on ALICOMP without its prior written consent or failing to
include an unconditional release for it in a form that is reasonably
acceptable. In addition, ALICOMP may, at its sole option and expense,
assume the defense in any such action, including with respect to any
settlement or compromise thereof.
B. It is anticipated that certain ALICOMP employees and or contractors may
provide services to COSI with respect to non ALICOMP customers of COSI.
COSI's obligations to ALICOMP set forth in subparagraph A immediately
preceding shall apply to any claims associated with or brought or asserted
by such COSI customers as a result of any act or omission of such ALICOMP
employee.
C. ALICOMP shall defend, indemnify, and hold COSI harmless from and against,
and shall pay all costs, fees and expenses (including reasonable attorney's
fees) of COSI associated, with any claim by any third party: (a) that
results from any breach by ALICOMP of any representation, warranty or other
obligation contained herein or (b) that relates in any way to any act or
omission of any employee or subcontractor of ALICOMP. COSI upon receipt of
notice of a claim covered by the terms hereof will promptly notify of any
claim or litigation to which the indemnity set forth herein applies.
ALICOMP will assume the defense of such claim at its sole cost and expense.
COSI shall cooperate in such defense or settlement at the indeninitor's
cost and expense. The indemnitor shall not enter into any settlement
imposing any liability or restriction on COSI without its prior written
consent or failing to include an unconditional release for it in a form
that is reasonably acceptable. In addition, COSI may, at its sole option
and expense, assume the defense in any such action, including with respect
to any settlement or compromise thereof.
20. TAX COOPERATION
The parties agree to fully cooperate with each other to enable each to more
accurately determine its own tax liability and to minimize such liability to the
extent legally permissible. Each party shall provide and make available to the
other any resale certificate, information regarding out-of-state sales or use of
equipment, materials or services, and other exemption certificates or
information reasonably requested by either party.
21. MARKETING AGREEMENT
The Marketing Agreement between ALICOMP, INC. and COSI dated March 1997 shall be
incorporated hereto and made a part of this Agreement.
PAGE 24
22. DISPUTE RESOLUTION
The parties shall seek to resolve any controversy between them first by
negotiating with each other in good faith in face-to-face negotiations between
the respective authorized senior executives of the parties. Except as otherwise
provided in this Agreement, all claims, disputes, controversies and other
matters in question between the parties to this Agreement which cannot be
resolved by the parties shall be settled by binding arbitration in accordance
with the following procedures:
A. Any arbitration shall be conducted in accordance with the commercial rules
of the American Arbitration Association ("AAA") then in effect.
B. Either party may serve upon the other party by certified mail a written
demand that a claim, dispute, or controversy be submitted to arbitration.
The demand, which shall be effective upon receipt, shall specify in
reasonable detail the nature of the claim, dispute, or controversy and
shall be made within a reasonable time after the claim, dispute, or
controversy has arisen and after completion of the good faith negotiations
described above. In no event shall the demand for arbitration be made more
than twelve (12) months after the claim or cause of action arises.
C. Within fifteen (15) days after service of a demand for arbitration, the
parties shall attempt to agree upon a single arbitrator.
D. In the event the parties cannot agree upon a single arbitrator, either
party may request the AAA to provide a list of arbitrators. If, within
fifteen (15) days from receipt of such list, the parties fail to agree upon
an arbitrator from the persons named or for any reason the appointment
cannot be made from the list submitted by the AAA, then the arbitrator
shall be appointed by the AAA.
E. The arbitration proceeding shall be held in New York, New York, unless the
parties agree otherwise.
F. The parties agree to equally share the cost of such arbitration, although
each shall bear the expense of their own legal counsel and expert
witnesses.
G. The parties agree that the award or result of such arbitration may be
enforced by any court having jurisdiction over the appropriate party,
including but not limited to the Supreme Court in New York County, New
York.
H. The written decision of the Arbitrator shall be final and binding on the
parties if the damages sought by any party are related to the Services and
if the damages sought by any party are equal to or less than the monthly
fixed fee at the time and nonbinding in all other cases.
PAGE 25
23. CHANGE OF CONTROL
If at any point in time during the term of this Agreement any entity other than
Xxxx Xxxxxxxx or any other entity in which Xxxx Xxxxxxxx has a greater than 50%
interest or otherwise controls acquires more than fifty percent (50%) of the
COSI stock there shall be deemed to be a change of control. In the event of a
change of control, ALICOMP shall have the right to elect to terminate this
Agreement upon not less than thirty (30) days notice. COSI shall endeavor and
use its best efforts to give ALICOMP as much advance notice of its change of
control as possible without violating governmental bodies' regulations or
statutes or other duties in confidentiality they may be subject to. In the event
that ALICOMP elects to terminate this Agreement in the event of change of
control, COSI shall be liable to provide ALICOMP all of the services provided
under Section 18 of this Agreement provided further that if the entity which
takes control is a competitor of ALICOMP, COSI shall also pay the Termination
Costs as defined in paragraph 1.27 hereof.
24. MISCELLANEOUS
A. This Agreement shall be governed by, and construed according to, the
laws of the State of New York without regard to its conflicts of law
provisions. This Agreement superseded all prior agreements and
understandings between the parties relating to the, subject matter
hereof, and may not be changed or terminated orally, and no change,
termination or waiver or any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is
sought to be enforced.
B. In the event of any conflict between the terms and conditions of this
Agreement and the terms and conditions of any purchase Order or similar
document issued by ALICOMP and accepted by COSI, the terms and
conditions of this Agreement shall control. All Exhibits attached
hereto are included as part of this Agreement.
C. Neither this Agreement nor the provision of this Paragraph may be
changed amended, modified, terminated, or waived, as a result of any
failure to enforce any provision or the waiver of any specific breach
or breaches hereof, or any course of conduct of the parties. This
Agreement may only be amended by a written instrument, executed by
ALICOMP and COSI.
D. This Agreement shall not be assigned or transferred by either party
without the written consent of the other party which consent shall not
be unreasonably withheld, or except together with and as a part of its
entire assets, business and goodwill as a going concern, and on the
condition that upon such assignment, the assignee shall expressly
assume assignor's obligations hereunder, and shall be subject to all of
the terms and conditions of this Agreement; provided,
PAGE 26
however, ALICOMP shall be permitted to assign this Agreement to any
subsidiary of ALICOMP or affiliate thereof.
E. COSI shall not be liable to ALICOMP for any delay or failure in
providing the Services in Compliance caused by a Force Majeure Event.
Hours of Computer Systems unavailability shall not include hours
directly attributable to a Force Majeure Event. However, once COSI
regains control of its operations either at the Disaster Recovery site
or at the Information Technology Facility, COSI will resume normal
services immediately and is not excused from additional periods of
unavailability. No party shall be liable for any failure to perform
caused by any Force Majeure Event as long as: (i) such party provides
to the other party notice of such Force Majeure Event promptly upon
occurrence of the same; (ii) such party performs fully and completely
all obligations of such party during the existence of such Force
Majeure Event that such party can perform; and (iii) such party uses
its best efforts to recommence full and complete performance of its
obligations as soon as possible after the occurrence of such Force
Majeure Event; and (iv)COSI maintains its own electrical generating
capacity sufficient to enable COSI to perform Services in Compliance
under this Agreement and COSI makes such electrical power available to
ALICOMP except that in the event that the Force Majeure Event is one
which prevents COSI from operating its own electrical generating
equipment then COSI shall be relieved of its obligation to provide
electrical power to ALICOMP. Notwithstanding anything to the contrary
contained herein, ALICOMP shall have no obligation to pay any amount
under this Agreement during the existence of any Force Majeure Event
that causes COSI to fail to provide the Services in Compliance.
F. Required Disaster Recovery Agreement.
(1) COSI at all times during the term of this Agreement shall be
party to an agreement with Comdisco Disaster Recovery
Services, Inc. (herein "Comdisco") or with another entity
which can and does provide the same services which Comdisco
provided as of the date hereof (herein a "Comdisco Successor")
which agreement provides that Comdisco or the Comdisco
Successor shall provide for the ALICOMP data, ALICOMP
Software, New ALICOMP Software, COSI Computer Equipment and
COSI Software all services that any third party (including
Comdisco) is obligated at any time to provide to COSI for the
data, Software, and Computer Equipment used by ALICOMP
business. No occurrence of any event shall be deemed a Force
Majeure Event with respect to COSI unless, at the time of such
occurrence and during the existence of such event, COSI is
party to such an agreement with Comdisco or Comdisco
Successor.
(2) Required Cure Period. If any Force Majeure Event cannot be
cured within forty-eight (48) hours of the commencement of
same in the
PAGE 27
reasonable opinion of COSI, COSI shall, within twelve (12)
hours of commencement of same, make arrangements with Comdisco
or the Comdisco Successor to provide the Services hereinafter
described, at the Comdisco facility or the Comdisco Successor
facility within forty-eight (48) hours of the commencement of
such Force Majeure Event. COSI shall advise ALICOMP within
twelve (12) hours of the commencement of such Force Majeure
Event whether the Services are going to be moved to the
Comdisco or Comdisco Successor facility or if the Services
will remain at the COSI Computer Facility.
Provided further that if one of ALICOMP's customers requests
COSI to declare a disaster and move to the Disaster Recovery
site sooner, COSI shall do so if the customer agrees to pay
the declaration fee and all other costs. If COSI ultimately
declares a disaster for its other customers it shall reimburse
the ALICOMP customer for these expenses.
(3) Right to Terminate. If any Force Majeure Event continues for
three (3) calendar days and COSI fails to provide the Services
in Compliance due to any Force Majeure Event for such period,
ALICOMP may, in its sole discretion, terminate this Agreement
without any obligation to pay any amount to COSI for any
period commencing with the first day of the Force Majeure
Event. Upon such termination, except as expressly provided in
Section 24J., the parties shall have no further obligations
hereunder; provided, however, that COSI shall be required to
perform the obligations of COSI to the fullest extent
possible during the continued existence of such Force Majeure
Event. Notwithstanding the foregoing, ALICOMP shall not have
the right to terminate this Agreement under this Paragraph 18
and shall not be obligated to make the payments required under
this Agreement if, in connection with each Force Majeure Event
that may occur:
(i) COSI has implemented fully and completely the Disaster
Recovery Plan specifically in the Procedures manual in
Exhibit E to be attached hereto (the "Plan"); and
(ii) Within forty-eight (48) hours after the commencement of
such Force Majeure Event, all Software and Computer
System(s) designated a "Critical Application" in the
Plan are fully operational and available for use; and
(iii) Within seventy-two (72) hours after the commencement of
such Force Majeure Event, all Software and Computer
Systems used to provide the Services are fully
operational and available for use.
Page 28
G. The parties agree to reasonably cooperate with one another in order to
effect the completion of any and all documents, exhibits and agreements
reasonably necessary in order to carry out the obligations contained in
this Agreement and the supplements and Exhibits thereto. The parties
acknowledge that certain specific information needed to complete the
Exhibits attached hereto may not be complete until after this Agreement
is signed (effective date). Notwithstanding the foregoing COSI does
agree that the pricing set forth in Exhibit A will not change upon
completion of the Schedules or Exhibits.
H. ALICOMP may engage consultants and subcontractors to assist it in the
performance of this Agreement. COSI may not engage any subcontractors
to perform any obligation of COSI hereunder except as specified in this
Agreement without obtaining the prior written consent of ALICOMP for
each such subcontractor, which may not be unreasonably withheld.
1. Except as required by law, no party shall disclose to any third party
for any purpose, including without limitation, for advertising and
promotional purposes any terms and conditions of the Agreement or the
name that may be used to identify any other party without the prior
written consent of such party.
J. Certain sections hereof shall survive any expiration or termination of
this Agreement as follows: Sections 1, 8, 10, 11, 17, 18, 19, 20, 22,
and 24 shall survive for six (6) years beyond any expiration or
termination of this Agreement. Section 12 shall survive any expiration
or termination of this Agreement by three (3) years. The sections
requiring COSI to provide services shall survive any termination of
this Agreement so long as there are ALICOMP clients utilizing COSI's
computer services of any kind for which ALICOMP is liable for such
performance of Services provided ALICOMP pays for such services or the
ALICOMP Client.
K. Any notice required or permitted to be made to a party pursuant to this
Agreement will be in writing and deemed sufficiently given if sent to
such party by overnight courier, or by certified mail;, postage
prepaid, addressed as set forth in Exhibit C or to such other address
as a party shall designate by written notice given to the other party.
Such notice shall be deemed to have been given (a) one (1) day after
being sent by overnight mail or by courier service; or (b) three (3)
days after being sent, if sent by certified mail.
L. In the event that the ALICARE desires to sell ALICOMP, ALICARE shall
give COSI notice of the potential sale. In the event that COSI makes an
offer to purchase ALICOMP and its offer is the highest offer received
and equals or exceeds the non price terms of any other offer received,
ALICOMP shall either accept COSI's offer or withdraw its offer to sell
ALICOMP from all parties and ALICARE shall have no liability to COSI.
If COSI's offer is not the highest offer received ALICARE shall afford
COSI a ten business day period to match
PAGE 29
the price and terms of the highest offer received by ALICARE. The
foregoing not withstanding, in the event that the highest bid received
is not satisfactory to ALICARE, in its sole and unfettered discretion,
which may be applied unreasonably, ALICARE may decline to sell ALICOMP
to any party, including COSI, and shall have no liability to COSI.
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper
authority, have executed this Agreement as of the day and year first above
mentioned.
FOR: ALICOMP FOR: COSI
SIGN: /s/ XXXXXX XXXXX SIGN: /s/ XXXX XXXXXXXX
--------------------------- ----------------------------
NAME: Xxxxxx Xxxxx NAME: Xxxx Xxxxxxxx
--------------------------- ----------------------------
TITLE: President TITLE: Chairman
--------------------------- ----------------------------
DATE: 3/21/97 DATE: 3/21/97
--------------------------- ----------------------------
Page 30
EXPLANATORY NOTE
Notwithstanding references to other exhibits in this agreement, the only
exhibit which the parties prepared was Exhibit A, which immediately follows
this Explanatory Note.
cosi EXA 3.21.97d
EXHIBIT "A"
TO THE SERVICES AGREEMENT BETWEEN
ALICOMP AND COMPUTER OUTSOURCING SERVICES, INC. (COSI)
FEES AND SERVICES
A. PRICING DETAIL
I - Fixed minimum annual fees for three years to be paid monthly as of the full
live cutover date (Date of First Productive Use) is $* ($*) less the
following monthly credits for ALICOMP Technical Staff-
Operations: 1998 Salaries (est.)
Operations Vice President
Operations Director
Technical Support Specialist
Production Control Manager
Benefits *
Total $ *
---------
Technical Services Consultants:
Senior Technical Support Specialist
Senior Technical Support Specialist
$ *
---------
Total Staff Credit $ *
---------
This staff credit will, be adjusted each year for each staff member or
consultant listed above in accordance with the provisions of Paragraph 5.A.(6)
If a staff member or consultant should leave ALICOMP's employment during the
term of this Agreement, ALICOMP shall replace such employees/consultants as soon
as possible. If a COSI employee should take over the responsibilities of a
vacant ALICOMP staff position, ALICOMP will pay COSI an amount equal to the
credit applied to such position until an ALICOMP employee is hired to replace
such staff position.
* Confidential portion has been omitted and filed separately with the
Commission.
COSI shall have the right to review such replacement employees/consultants
with ALICOMP.
Net Fixed Minimum Armual Fee for Contract Year I is anticipated to be $* ($*)
net of staff credit. COSI shall invoice ALICOMP on the first day of the month
in which services are being rendered for one-twelveth of the minimum annual
fee. The same invoice will include fees for Overage Pricing or credits for
Decremental Pricing Fee Reduction for the prior month. ALICOMP shall pay said
invoice no later than the last day of the month in which services were
rendered.
The staff credit shall remain constant (net of staff 'increases and overtime, if
any, to be mutually agreed to by COSI and ALICOMP) during the full term of this
Agreement even if the number of ALICOMP replacement employees/consultants
increase or decrease (due to a reduction or increase in business). The above
notwithstanding, if ALICOMP wishes to reduce its staff size, COSI must agree to
such ALICOMP staff reduction in advance. The cost savings from such ALICOMP
staff reduction shall be divided equally between ALICOMP and COSI.
2. Overage Pricing
For existing clients growth and, near term clients (per attached Exhibit E)
COSI's pricing for additional resources shall be:
a) 1) MIPS over * plus a *% cushion on a CMOS Processor - $* per MIP per
month as defined in the Marketing Agreement dated March 1997
(Marketing Agreement) between COSI and ALICOMP.
ii) MIPS under * (in the event of a prior reduction in year 2 and/or 3
below the initial installed base) shall result in a fee increase of $*
per MIP.
b) i) RAMAC RAID 5 DASD over * Gigabytes (or equivalent Gigabytes after
applying CMOS Hardware Compression to existing VSAM FILES estimated to
be * Gigabytes.) As used herein throughout this Agreement * Gigabytes
shall mean * or equivalent based on the parenthetical qualifications.
(* Gigabytes per volume) or equivalent - $* per Gigabyte per month.
Page 2
* Confidential portion has been omitted and filed separately with the
Commission.
ii) Gigabytes of DASD under * Gigabytes (in the event of a prior
reduction in year 2 and/or 3 below the initial installed base) shall
result in a fee increase of $* per Gigabyte per month.
c) Network resources (37X5, 3172; Router, 3174 Router) labor (Console
Operators, Tape Pool Operators, Production Control staff) new software
above initial levels and other peripherals shall be provided at COSI
cost (cost shall equal the total of cost from third parties, internal
costs, space and power) plus *%.
3. Decremental Pricing/Fee Reduction
ALICOMP's requirements for resources including, but not limited to MIPS,
DASD, and labor may decrease over the term of the Agreement which this
Exhibit A is a part of. In recognition of this variable need for services
the parties have agreed that ALICOMP shall be entitled to reduce its usage
of MIPS and/or DASD and receive a reduction in the fees hereunder in
accordance with the following terms.
1. (a) ALICOMP shall not be entitled to a reduction in fees related to a
reduction in resource requirements below the Initial Installed Base for a
period of twelve months following the Date of First Productive Use. During
this twelve month period ALICOMP may only reduce its resource requirements
to an amount equal to the Initial Installed Base amount if prior to the
reduction ALICOMP had increased its resource requirement to an amount above
the Base Installed Amount.
(b) ALICOMP may reduce its resource requirements for DASD and/or MIPS
during the period commencing on the first day of the thirteenth month
following the Date of First Productive Use and ending on the last date of
the twenty-fourth month following the Date of First Productive Use to an
amount which is equal to * percent (*%) of the Initial Installed Base of
MIPS and/or DASD.
(c) ALICOMP may reduce its resource requirements for DASD and/or MIPS
during the period commencing on the first day of the twenty-fifth month
following the Date of First Productive Use and ending on the last date of
the thirty-sixth month following the Date of First Productive Use to an
amount which is equal to * percent (*%) of the Initial
Page 3
* Confidential portion has been omitted and filed separately with the
Commission.
Installed Base of MIPS and/or DASD.
2. In the event that ALICOMP determines in its sole discretion, to reduce
its resource requirements in accordance with the foregoing paragraphs 1 (a)
to 1 (c), it shall be entitled to a fee reduction as follows:
(i) In the event that ALICOMP wishes to reduce its resource requirement it
shall advise COSI of the reduced need in writing setting forth the
reduction required and the effective date the reduction is desired. The
amount of the reduction in resources shall be referred to herein as
Released Resources. If COSI is able to provide the Released Resources to a
third party, ALICOMP shall be entitled to a reduction in fees effective
with the date that COSI commences providing the Released Resources to the
third party. COSI shall be required to provide the Released Resources to a
third party equally from the Released Resources and its own inventory of
resources before it purchases such resources from any other third pary . By
way of example, but not by way of limitation: In the fifteenth month of the
Agreement, ALICOMP advises COSI that it wishes to reduce its DASD
requirements by twenty Gigabytes per month. COSI has a new customer that
requires thirty gigabytes of DASD per month. Without purchasing any new
resources, COSI can provide the new customer with forty gigabytes of DASD
per month out of existing inventory. It shall be deemed that fifteen of the
released gigabytes that were formerly provided to ALICOMP are being
provided to the new customer and ALICOMP would be entitled to a reduction
in fees based upon a 15 gigabytes reduction effective on the date the new
customer begins using Released Resources. (ii) The amount of fee reduction
which ALICOMP shall be entitled to as of the date the Released Resources
are provided to any other new or existing COSI customer shall be as
fallows-
a) Any reduction, or portion thereof, which is not below the
Installed Base Amount shall result in a fee reduction of $ * per Gigabyte
per month of DASD and $ * per MIP, per month released by ALICOMP.
b) Any reduction, or portion thereof, which reduces the resources to
an amount below the Installed Base Amount shall result in a fee reduction
of $* per Gigabyte per month of DASD and $* per MIPS per month released by
ALICOMP.
Page 4
* Confidential portion has been omitted and filed separately with the
Commission.
B. SERVICES DETAIL
All Services described below are to be available 24 hours per day, 7 days per
week, 365 days per year and are included in the Fixed Minimum Annual Fee in
Paragraph (A) above.
No one time costs in connection with migration start-up pursuant to Exhibit J
herein attached, cutover or operations are being charged, including charges for
the moving of communication lines and any additional line costs resulting from
the move to the new Information Technology Facility. All one-time costs
including software, if any, are being absorbed by COSI as part of the bundled
pricing schedule to be paid in monthly installments as of the live cutover date
(Date of First Productive Use).
1. IBM CMOS Mainframe Resources (the Initial Installed Base)
a) * MIPS over a minimum of * LPARS supporting VM, VSE, and MVS Operating
Systems. The ration of MIPS for each operating system and LPAR shall
be determined by ALICOMP as ALICOMP's Client needs require. Appropriate
Real and Extended Memory configurations and ESCON Channels for
peripheral devices to support all ALICOMP Clients will be included.
b) * Gigabytes of IBM RAMAC Raid 5 DASD, (or the equivalent Gigabytes
after apply CMOS Hardware Compression to existing VSAM files estimated
to be * Gigabytes) required cache controllers and cabling to support
all ALICOMP Clients will be included.
c) No less than * 3480/3490 cartridges transports with IDRC Compression
cabled to the IBM Mainframe(s) as required for ALICOMP Clients.
d) All IBM MVS, VM and VSE operating systems software as reflected in
Exhibit I hereto attached.
e) All of the third parry software as reflected in Exhibit I hereto
attached. COSI shall pay the required annual maintenance of all ALICOMP
owned third party software and will provide other IBM and third parry
software ALICOMP is using at its current facility as of the Effective
Date of this Agreement. COSI shall be responsible for ALICOMP's
software license transfers with Vendors and managing ALICOMP's third
party software portfolio to
Page 5
* Confidential portion has been omitted and filed separately with the
Commission.
ensure that maintenance and licenses meet with Vendor approval and that
all licenses that are in compliance remain in compliance.
f) Staff, in addition to staff reflected in (A) I of this Exhibit,
anticipated to be no less than full time equivalents of
* full time Console Operators to include as a first option, CBS,
Inc. Console Operators currently working on ALICOMP Clients work as law
permits.
One dedicated senior technical services employee knowledgeable in VM,
VSE, and MVS to work with the ALICOMP consultants and employees in
Paragraph (A) I above to assist ALICOMP clients, to help in marketing
and presentation activities, respond to Help Desk requests and other
responsibilities inherent in a Senior Technical Services employee.
ALICOMP shall have the right to approve such employee given the crucial
nature of the employee responsibility.
One Tape Pool/Production Control employee
One Production Control Clerk
g) A diversely routed (SONET Ring or Equivalent) telecommunications
network as reflected in Exhibit G hereto attached. COSI shall pay for
reinstallation of existing lines as of the Effective Date of this
Agreement, and any additional monthly bandwidth costs. COSI shall also
provide for connectivity to its Hotsite Backup Facility. ALICOMP shall
pay for all monthly bandwidth costs up to the cost currently paid from
its Secaucus location and for the installation and monthly costs of
future lines not active as of the Effective Date of this Agreement.
h) Impact Printing required by ALICO Services Corporation (ASC) as
reflected 'in Exhibit F.
i) Disaster Recovery Hotsite Backup shall be provided by COSI, including
the payment each month until its expiration in December 2000, of
ALICOMP's current Comdisco Disaster Recovery Fee and the use of all
resources provided for in said Disaster Recovery Contract.
j) Physical office space for Marketing and Administration Staff of ALICOMP
as reflected in
Page 6
* Confidential portion has been omitted and filed separately with the
Commission.
the Marketing Agreement Paragraph IV.
k) Delivery service * at a mutually agreeable time to and from ASC
Headquarters to and from the Facilities location.
1) Use by anyone providing the Services herein of a Van or Shuttle service
to and from NYC to the Facilities location, if available to other COSI
employees.
m) A Help Desk which meets ALICOMP customers' needs functional the same as
the current CBS Help Desk.
n) Unlimited tape mounts, and onsite storage of * reels/cartridges.
2. Responsibility Detail: see attached.
Page 7
* Confidential portion has been omitted and filed separately with the
Commission.
COMPUTER OPERATIONS
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Computer Operations
Operate Console J J
Document Operations Procedures J J R
Mount Tapes J J
Print Forms and Operate Printers J J
Shipping/Distribution J J
Job Accounting Statistics J J
Performance Management
Define Service Level Requirements X
Document Service Level Agreements/Objectives X
Measure Performance J J R
Analyze Performance J J R
Improvement Recommendations P S R
Implement Improvement Programs J J R
Provide Monthly Reports J J R
Capacity Management
Define application plans and requirements X
Capacity Monitoring P S R
Change Management
Application soft. change mgmt. proc. & proc. S P J
Application software change/upgrade decision X
Application SW (custom or 3rd party) upgrade X
installation
Application software change/upgrade testing R R J
Application software change/upgrade test R R X
approval
Application software change/upgrade S S P
implementation*
End User Machines
Leases X R
Maintenance X R R
Upgrades/Replacernents X R R
Miscellaneous
Paper J J
Forms/Checks X
Provide Microfiches Files and Tapes to Service J J R
Bureau
Data Center Supplies (not including consumables) X
Storage (paper/forms/checks) X
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility * = move from test to production environment, S =
Secondary Responsibility
PRODUCTION SUPPORT AND CONTROL
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Application System Installation/New Release
Pilot/Parallel test (environment set-up) J J R
Pilot/Parallel test (Execute testing) J J P
Verification R R X
Actual Installation J J R
System Security
Provide Security Software X
User Requirements P S X
Administration X
Execution X
Document Job Submission Procedures
JCL Standards P S R
Set-up J J J
Update to JCL R R X
Initiation/Install J J R
Tape Library
Retention Requirements R R X
Administration X
Operation X
Storage X
OFF-SITE storage X
Production Scheduling
Scheduler input/transmittals S P X
Scheduler updates J J R
Execution J J R
Test Scheduling
Define test system requirements R R X
Schedule time and confirm with customer J J J
Execution of tests J J R
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility, * = move from test to production environment, S =
Secondary Responsibility
TECHNICAL SERVICES & SYSTEMS SW
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
System Software Program Installation and Maintenance P S R
Change Management
System software change/upgrade decisions P S R
System software change/upgrade, installation P S R
System software change/upgrade testing P S, S
Performance Tuning
Systems P S R
Applications J J R&J
Troubleshooting/Problem Resolution J J R
Back-up Procedures J J R
DATABASE ADMINISTRATION (ALL)
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
DB System Software Maintenance P S S
DB Capacity Planning P S P
DB Performance Management S J P
DB Performance Utilization Tracking S J P
Backup/Recovery Procedures P S J
DB Installation P S S
Management REPORTS P S P
DB Database Maintenance S J P
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility, * = move from test to production environment, S =
Secondary Responsibility
DATA NETWORK
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Business Requirements X
Technical Requirements P P S
Data Network Design
Hardware and software evaluation procurement J J R
Hardware and software installation P S
Define/Review/Implement Standards J J S
Communications Vendor Management X S
Data Network Management
Network Control Center J J
Troubleshooting/problem determination J J J
Vendor Coordination and Dispatch P S
Track Vendor Performance X R R
Cabling/Wiring Installation and Maintenance
(Customer) S P P
Cabling/Wiring Installation and Maintenance (Remote) S P S
Cabling/Wiring Installation and Maintenance
(Data Center) P S
Change Management J J
Technical Support J J
Management Reports P S S
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility, * = move from test to production environment, S =
Secondary Responsibility
HELP DESK
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Central Help Desk (24hrs x 7 days)
Data Center Operations X
Mainfi-ame Applications X
PC Applications R X
PC Installation & Hardware Maintenance R X
Problem Defmition
Application Problem Resolution S S P
Problem Management
Log and Track Calls X R
Provide feedback to Users P S
Escalate to next level of support when appropriate P S R
Follow-up for Resolution Status J J J
System Problem Resolutions
System Software (IBM or Third Party) P S
Custom Application or third party package soft- J J J
xxxx
Notify Users of System Availability (COSI to X
ALICOMP)
Notify End Users X S
Monthly Reporting
MIS Reporting J J R
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility, * = move from test to production environment, S =
Secondary Responsibility
DISASTER RECOVERY
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Business Requirements (End User) X
Disaster Recovery Plan (Facility)
Data Center Machines X
Data Network Equipment (from CBS and Hotsite) X
System software failure P S
Application software failure S S P
Terminal machine failure diagnosis and repair* P S S
Testing the Plan P S J
Sign Off on Test P S J
Updates to Plan P S J
Audit Reviews P
Computer File Backup Instructions S P
Developing Disaster Recovery Plan (Facility) X R
MARKETING SUPPORT FOR ALICOMP
COSI ALICOMP ASC and/or
Operational/ Operational/ ALICOMP
Tech Staff* Tech Staff Clients
Evaluate Prospective Client Needs J J R
Needs Analysis J J R
Proposal Preparation J J J
Site Visits J J J
Migration Planning - Migration J J R
*Technical Services from COSI and ALICOMP staff will have joint responsibility
for ALICOMP and COSI clients (present and future) depending on the specialty of
the Services that are required to support such Clients.
Legend: X = Sole Responsibility, P = Primary Responsibility, R = Review/Accept,
J= Joint Responsibility, * = move from test to production environment, S =
Secondary Responsibility
