Exhibit 10.1
REMOTE PROCESSING AGREEMENT
BETWEEN
SUNGARD FINANCIAL SYSTEMS INC.
a Delaware corporation
("SunGard")
AND
TRADESTATION SECURITIES, INC.
a Florida corporation
("Customer")
DATED
June 10, 2003
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Agreement and all Schedules and Addenda to this Agreement.
SUNGARD FINANCIAL SYSTEMS INC. TRADESTATION SECURITIES, INC.
BY: /s/ Xxxxxx Xxxxxx BY: /s/ Xxxx X. Xxxxx
-------------------------------- ---------------------------------------
PRINT NAME: Xxxxxx Xxxxxx PRINT NAME: Xxxx X. Xxxxx
------------------------ --------------------------------
PRINT TITLE: President PRINT TITLE: Vice President
----------------------- -------------------------------
DATE SIGNED: 6/11/03 DATE SIGNED: 6/10/03
----------------------- -------------------------------
1. SERVICES
1.1 Provision of Services. SunGard shall provide to Customer, and
Customer shall accept, the on-line processing, report services
and related services described on Schedule A to this Agreement
including the provision of data and services from Third Party
Providers ("System Services") available through use of
SunGard's proprietary applications software system identified
on Schedule A to this Agreement ("System") and the related
documentation listed on Schedule A ("Documentation"), as the
System Services, System and Documentation may be modified,
revised and updated in accordance with this Agreement.
1.2 On-Line Processing Services. SunGard shall provide to Customer
the on-line processing services described on Schedule A. The
System will be available to Customer twenty-four hours a day
except during System maintenance. Customer will have on-line
access to the System during every day that any of the United
States securities markets are open ("Business Day"). On each
Business Day, SunGard will perform a daily batch cycle which
will begin at 8:30 p.m. Eastern Time and takes approximately
eight (8) hours for normal data processing, unless additional
processing is required by Customer ("Batch Cycle"). During the
Batch Cycle, access by Customer to the System is limited to
the inquiry functions. If Customer requests a delay in the
commencement of the Batch Cycle or if any clearing entities
are not available to be accessed by the System, Batch
Processing may be delayed and the System may not be available
for next Business Day processing for approximately eight (8)
hours after the commencement of the Batch Cycle. The SunGard
Facility will be staffed at SunGard's usual levels twenty-four
(24) hours a day commencing at 7:00 a.m. Eastern Time on
Monday through 7:00 p.m. Eastern Time Saturday, and on Sunday
from 7:00 a.m. Eastern Time to 7:00 p.m. Eastern Time.
Customer may request additional staffing by providing five (5)
days' prior written notice to SunGard. Such additional
staffing will be charged to Customer at SunGard's current
rates.
1.3 Customer Data. Customer shall supply to SunGard all of the
data to be processed under this Agreement as described on
Schedule A and in the Documentation. Customer shall transmit
the data to SunGard by communications link or in another
manner described on Schedule A. Customer shall use
commercially reasonable efforts to ensure that any information
or data which it introduces into the System is accurate and
complete. Customer shall maintain copies of all source data
and current backup copies of all data supplied to SunGard,
and, subject to SunGard's obligations under Section 3.5,
SunGard shall have no liability for any loss or damage caused
by Customer's failure to maintain copies.
1.4 Limited Use. Customer may use the System Services and
Documentation only in the ordinary course of its business
operations and for its own business purposes, including
processing of trades for Customer's day trading, equities and
options correspondent brokers ("Scope of Use"). Customer shall
use the System Services only in accordance with the
Documentation. Customer may use only the copies of the
Documentation that are provided by SunGard, except that
Customer may copy the Documentation to the extent reasonably
necessary for routine backup and disaster recovery purposes.
2. INITIAL IMPLEMENTATION SUPPORT AND TRAINING
2.1 Initial Implementation. SunGard shall provide and Customer
shall accept the Initial Implementation Support described on
Schedule C. This shall include delivery to Customer of the
Initial Copies of the Documentation defined on Schedule A and
assistance with any other implementation or related activities
described on Schedule C. Subject to the availability of
SunGard's personnel, SunGard shall provide to Customer
additional implementation support services reasonably
requested by Customer.
2.2 Training. SunGard shall provide and Customer shall accept the
Minimum Training described on Schedule C. This shall include
basic training in the use of the System Services for a
reasonable number of Customer's
-1-
employees. Subject to the availability of SunGard's personnel,
SunGard shall provide to Customer additional training services
reasonably requested by Customer. SunGard shall provide
training at Customer's location(s) whenever SunGard and
Customer agree on-site training is appropriate.
3. SUNGARD'S OTHER OBLIGATIONS
3.1 Ongoing Support Services. SunGard shall provide the following
ongoing support services to Customer:
(a) Telephone Support. SunGard shall provide to Customer,
during SunGard's normal business hours, Monday
through Friday from 7:30 a.m. Eastern Time to 7:30
p.m. Eastern Time (except that Customer and SunGard
may agree in advance to provide support services on
U.S. holidays), telephone consultative support
through SunGard's Customer Support Department
regarding Customer's proper and authorized use of the
System. During normal business hours, SunGard shall
use commercially reasonable efforts to provide access
to at least one of the following people: (i) the
primary support person for customer account, (ii) the
Relationship Manager for customer's account or (iii)
a senior manager of SunGard. In emergencies,
telephone consultative support will be provided
through SunGard's main number twenty-four (24) hours
a day seven (7) days a week.
(b) Error Corrections. SunGard shall use commercially
reasonable efforts to correct failures of the System
to perform in accordance with the Documentation
("Errors") as follows:
1. Classification of Errors. An Error shall be
classified in accordance with the following
terms:
Class 1 Error. A "Class 1 Error" is any
Error that renders continued use of the
System either impossible or seriously
impractical and either interrupts production
by Customer or makes continued production
substantially costly to Customer.
Class 2 Error. A "Class 2 Error" is any
Error that is not a Class 1 Error.
2. Notification of Errors. Customer shall
provide to SunGard reasonably detailed
documentation and explanation, together with
underlying data, to substantiate any Error
and to assist SunGard in its efforts to
diagnose, reproduce and correct the Error.
SunGard shall provide to Customer a list of
persons (in increasing positions of
authority) and telephone numbers ("Calling
List") for Customer to contact in order to
report an error. When reporting any Error,
Customer shall provide reasonably detailed
documentation and explanation, together with
underlying data, to substantiate the Error
and to assist SunGard in its efforts to
diagnose and correct the Error. Customer
will immediately report any Error it
believes is a Class 1 Error. If SunGard
detects a Class 1 Error, then SunGard will
promptly contact Customer. If SunGard
detects a Class 2 Error, then SunGard will
report such Class 2 Error to Customer as
soon as is reasonably practicable.
3. Response Time. SunGard shall use
commercially reasonable efforts to respond
to Customer's initial Error reports with
off-site telephone consultation, assistance
and advice within fifteen (15) minutes for
Class 1 Errors and within one (1) hour for
Class 2 Errors, but in any event, SunGard
shall respond within four working hours. If
SunGard fails to so respond, or if the
designated person from the Calling List is
not available when Customer makes contact
with SunGard to report an Error, then
Customer shall attempt to contact the next
responsible person of the Calling List until
contact is made and a designated person
responds to the call.
Class 1 Errors. For any Class 1 Error,
SunGard shall take all reasonably necessary
steps to supply a reasonable work-around or
correction to Customer as soon as possible.
-2-
This will include assigning qualified,
dedicated staff to work on the Error 24
hours per day, 7 days per week, at either
the SunGard site or at Customer's site as
mutually deemed necessary. Upon detecting or
being notified of a Class 1 Error, SunGard
shall immediately assemble the appropriate
personnel to analyze the problem, identify
potential solutions and determine the best
plan of action. Customer shall participate
in this process when necessary and provide
SunGard with additional documentation and
examples, if possible, to assist in
resolving the Error. SunGard personnel shall
be dedicated to resolving the Error until an
acceptable work-around or correction is
supplied or until Customer determines in its
reasonable judgment after consultation with
SunGard that a work around or correction
cannot be produced. A SunGard representative
shall keep Customer informed of the status.
Class 2 Errors. For any Class 2 Error,
SunGard shall work with Customer to document
the Error through mutually established
standards. Class 2 Errors shall be resolved
according to mutually agreed priorities.
SunGard personnel shall be dedicated to
resolving Class 2 Errors through SunGard's
normal software support procedures, provided
they are commercially reasonable in the
circumstances.
(c) Billable Correction Services. If SunGard
determines, reasonably and in good faith,
that Customer has repeatedly reported Errors
that did not, in fact, exist or were not
attributable to a defect in the System or an
act or omission of SunGard, then Customer
shall, at SunGard's request, begin to pay
for SunGard's investigation and related
services for such improper, repeated Error
reports at the service fees specified in
Section 5.3. for such reported Errors.
3.2 Modifications. SunGard shall provide to Customer, and Customer
shall accept, the following modifications to System Services:
(a) SunGard shall provide modifications, revisions and
updates to the System Services which SunGard, in its
sole discretion, incorporates into the System
Services, without additional charge.
(b) At SunGard's option and subject to the availability
of SunGard personnel, SunGard shall evaluate and, if
feasible and appropriate, produce and implement
Customer requests for modifications in the System
Services or the System. In SunGard's sole discretion,
it may implement requested modifications at no charge
in accordance with Section 3.1 (a) or offer them at
an additional charge in accordance with Section 3.4.
For purposes of clarity, Customer will receive from
SunGard the securities processing system that
processes back-office transaction processing
functionality for self-clearing and settlement
offered to SunGard's client base as described or
referenced in the Schedules and/or the Documentation
and includes the functionality set forth in Schedule
A1 (the "Functionality"), and for the services
described in Section 2 and 3.1 and the Schedules to
this Agreement, for the fees (if applicable and if
not waived) set forth in Schedule C and without
additional charges. In the event that Customer
requests additional functionality beyond the
Functionality then SunGard reserves the right to
charge for the requested functionality at the
professional services rates then in effect and under
terms to be mutually agreed upon prior to the
development of the functionality.
(c) SunGard shall deliver updates to the Documentation
whenever SunGard determines, in its sole discretion,
that such updates are necessary. Such updates will be
included, at no extra charge, in the fees set forth
in Schedule C.
-3-
(d) Customer shall accept modifications, revisions and
updates in the System Services, System and
Documentation, including changes in programming
languages, rules of operation and screen or report
format, as and when they are implemented by SunGard
and provided the modifications, revisions or updates
do not have a material adverse effect on the System
Services or impose additional material costs to
Customer (unless those costs are credited to
Customer). Customer acknowledges that modifications,
revisions and updates in the System Services and the
System permitted by this Agreement may result in
changes in the form, timing or other features of
on-line services, reports and other System Services
provided under this Agreement. If that will be the
case, Customer will be provided with adequate notice
and opportunity to make such changes.
3.3 Enhancements. SunGard shall offer to Customer the opportunity
to purchase services available through use of refinements,
improvements and enhancements to the System which SunGard, in
its sole discretion, does not incorporate into the System
without additional charge.
3.4 Consulting and Other Services. At Customer's reasonable
request and subject to the availability of SunGard's
personnel, SunGard shall provide to Customer conversion
assistance, consulting services, custom modification
programming, support services relating to custom
modifications, assistance with data transfers, assistance in
the use of the System Services security mechanisms and other
specialized support services with respect to the System
Services. These services shall be provided by SunGard at
Customer location(s) if SunGard and Customer agree that
on-site services are appropriate.
3.5 Backup Copies and Disaster Recovery. SunGard will make a
backup copy, in digital form, of Customer's data files then in
SunGard' possession (i) at the end of each business day and
stored at an off-site location for a period of five (5)
business days and (ii) at the end of each month and saved at
an off-site location for a period of the twelve (12) months,
provided that the monthly data files for the first four (4)
months of any tax year will be saved until the fifth month of
the following tax year. SunGard will maintain an agreement for
backup processing services with an affiliated company
consisting of the right to use an installed, fully operational
computer system and networking capability subject to the
availability of computer and other hardware. The backup
processing will be performed by SunGard using backup copies
which will be sent to the backup facility. Customer will be
charged for any recovery services associated with any computer
hardware or communications equipment required for Customer or
its correspondent brokers to access the System that is not
located at the SunGard Facility. In the case of an emergency
requiring backup processing, SunGard will promptly contact the
person or persons designated in writing by Customer to be
notified in such circumstance.
3.6 Special Processing. Upon the request of Customer and subject
to the limitations of the applications and hardware, SunGard
will use commercially reasonable efforts to provide special
processing services such as additional, customized reports or
other enhancements that are not included in the processing
services provided under this Agreement. Subject to the last
two sentences of Section 3.2 (b), such special processing
services will be provided for an additional charge agreed upon
by Customer and SunGard in writing. For purposes of this
Agreement, "Special Processing" shall mean any special
requests or specific customized development created for
Customer at Customer's request outside the scope of the
Functionality.
3.7 Third Party Providers.
(a) Customer hereby acknowledges and agrees that the
Third Party Data and Services provided under this
Agreement contain information obtained, selected and
consolidated by the Third Party Providers under the
authority of the Third Party Providers, that
Customer's use of the Third Party
-4-
Data and Services is authorized and regulated by the
Third Party Providers and further that the Third
Party Providers may require to be provided with
information and data about Customer and the Third
Party Users in connection with their provision of
Third Party Data and Services. Customer also
acknowledges that the Third Party Providers may
modify the Third Party Data and Services, discontinue
availability of Third Party Data and Services or
modify the rules concerning availability and
applicable royalty fees of any of the Third Party
Data and Services or require changes to the Third
Party Data and Services, in which case none of
SunGard or the Third Party Providers may be held
responsible for such modification and discontinuance.
Any changes required by the Third Party Providers
over which SunGard has no control shall be made a
part of this Agreement by SunGard's written notice of
any such changes to Customer. For a thirty (30) day
period after receiving such notice from SunGard,
Customer may reject such changes and terminate the
affected Third Party Data or Service by written
notice to SunGard. If such notice is not received by
SunGard within such thirty (30) day period, this
Agreement shall be modified by such changes, and
shall remain in full force and effect. As far as
pass-thru expenses pursuant to Section 5.10 or
described elsewhere in this Agreement are concerned,
based upon SunGard's review of Customer's
broker-dealer business operations as of the date
hereof, no Third Party Data and Services or Third
Party Providers will be used or engaged by SunGard on
Customer's behalf other than AT&T for communications
lines for the System and FTID for position pricing
data, and SunGard knows of no Third Party Data and
Services or Third Party Providers that Customer will
need to use and directly contract with other than
Loanet.
(b) Customer shall comply with all applicable laws and
obtain all necessary consents from any person,
including its employees and the Third Party Users and
their respective employees, if any, regarding the
collection, use and distribution to SunGard of any
information or data regarding any Third Party User
and to the use by Customer and the Third Party Users
of the Third Party Data and Services for the purposes
set forth herein. The information and data may
include personal and other information about the
Customer, its employees, the Third Party Users and
their employees, including their use of the market
data. SunGard may use this information and data to
carry out its obligations under this Agreement,
including the provision of such information to the
Third Party Providers pursuant to this Agreement.
3.8 Compliance by Parties. Customer shall be responsible for
compliance with all laws and governmental regulations
affecting its business, including, without limitation, the
laws and regulations of federal, state and local governments,
the rules, regulations and requirements of the SEC and other
government agencies, the NASD (and other applicable
self-regulatory organizations), major U.S. stock exchanges
(including NYSE, Nasdaq, AMEX, OPRA and the major regional
exchanges), and the National Securities Clearing Corporation
(NSCC), Options Clearing Corporation (OCC) and other clearing
organizations that have jurisdiction over clearing and
settlement of equities and equities options trades in the
United States (collectively, the "Regulatory Requirements").
Each party shall promptly communicate to the other party any
relevant legal or regulatory issues of which it becomes aware.
If, after the date hereof, any modifications to the System
Services or System shall be required to enable Customer to be
in compliance with Regulatory Requirements, then (a) for those
functions which are included in the Functionality, SunGard
will, using commercially reasonable efforts as soon as
reasonably practicable, and at SunGard's expense, change the
System Services or System to continue to conform to the
Regulatory Requirements for those functions or (b) for any
functions which are not included in the Functionality, the
development costs for the changes needed to comply with
Regulatory Requirements shall be at SunGard's expense;
provided, however, that, to the extent the aggregate
development costs of such modifications not included in the
Functionality ("Regulatory Development Costs") allocable to
Customer are greater than $600,000 in each contract year
commencing with the Effective Date, the aggregate Regulatory
Development Costs in excess
-5-
of $600,000 will be allocated proportionately (based on the
number of SunGard clients receiving services similar to the
System Services) across SunGard's client base subject to such
Regulatory Requirements. If such functionality is solely for
the benefit of Customer (meaning Customer is the only SunGard
client that requires new functionality to comply with a
Regulatory Requirement), then Customer agrees to bear the
Regulatory Development Costs of creating such functionality
and in that case SunGard shall not be responsible for the
initial $600,000 in development costs.
4. CUSTOMER'S OTHER OBLIGATIONS
4.1 Cooperation and Access to Facilities, Data and Employees.
Customer shall provide to SunGard access to Customer's
facilities, equipment, data and employees at reasonable times
and upon reasonable notice, and shall otherwise cooperate with
SunGard, as reasonably necessary for SunGard to perform its
implementation, training, support and other obligations under
this Agreement. Customer shall devote all equipment,
facilities, personnel and other resources reasonably necessary
to (a) implement the System Services and System, (b) be
trained in the use of the System Services and System and (c)
begin using the System and System Services in production on a
timely basis as contemplated by this Agreement. SunGard shall
not be responsible for any delays, costs, or increases in
third party fees associated with Customer's failure to timely
perform its obligations under this Section 4.
4.2 Use of System and Software. Customer shall use the System,
System Services, and Software in production to process
Customer's business within the Scope of Use and, subject to
Section 9.3 of this Agreement, all new business generated
through the expansion of Customer's business. In the event
that Customer's use of the System, System Services and
Software goes beyond the Scope of Use and expansion of
Customer's business, SunGard and Customer shall try to
negotiate in good faith the terms and conditions of the new
services Customer seeks to add.
4.3 Procurement of Hardware and Other Items. Customer shall be
responsible, at its expense, for procuring and maintaining the
communications equipment and lines, computer equipment,
software and all other out of pocket expenses, which comprise
the Specified Configuration described on Schedule A, and for
updating the Specified Configuration in accordance with
SunGard's published updates to Schedule A. SunGard has
provided Customer with a reasonably detailed list of the
required communications equipment and lines, computer
equipment and software, including the minimum and recommended
requirements therefor.
4.4 Notices and Certifications. Customer shall give written notice
to SunGard whenever Customer intends to increase the
transaction volume by more than twenty five percent (25%) of
its then current volumes in less than a six month period to be
processed on the System. Customer shall promptly complete and
return to SunGard periodic certifications which SunGard, in
its sole discretion, may from time to time send to Customer,
certifying that Customer has complied and is then in
compliance with the provisions of Section 7. Customer hereby
advises SunGard that Customer's transaction volume, through
normal growth in the ordinary course of business (e.g., new
accounts), may increase by 25% or more in any 6-month period
over the Initial Term.
5. PAYMENTS
5.1 Initial Implementation Support and Minimum Training. All
SunGard fees and charges for Initial Implementation Support
and Minimum Training are hereby waived, subject to SunGard's
right to receive termination payments, if applicable, pursuant
to Section 8.
-6-
5.2 Monthly Fees. On a monthly basis, beginning on the earlier of
the Monthly Fee Payment Start Date stated on Schedule A or the
first day of processing live trades on the System and
continuing until termination of this Agreement, Customer shall
pay to SunGard the fees described on Schedule C. Customer
shall pay minimum monthly fees for certain services in advance
as stated on Schedule C.
5.3 Special Service Fees. Subject to the last two sentences of
Section 3.2 (b), Customer shall pay to SunGard the service
fees stated on Schedule C for conversion, consulting services,
custom modification programming, support services relating to
custom modifications, assistance with data transfers, and
other specialized support services under Sections 3.4. In each
case where service fees are not specified on Schedule C, then
the fees for such services shall be based upon SunGard's then
current standard professional fee rates in effect. SunGard's
standard professional fee rates in effect on the date of this
Agreement are stated on Schedule C and are subject to increase
in the ordinary course of business.
5.4 Expense Reimbursements. During the initial implementation
period and whenever other services are mutually agreed upon by
the parties and provided by SunGard at a Customer location or
any other location requested by Customer other than one of
SunGard's locations, Customer shall reimburse SunGard for its
reasonable, out-of-pocket travel, lodging, meal and related
expenses incurred by SunGard personnel in providing such
services, in accordance with the SunGard Travel and Expense
Policy, a copy of which has been delivered to Customer.
5.5 Other Fees. Customer shall pay to SunGard other fees stated on
Schedule C, if, as and when applicable.
5.6 Taxes. The fees and other amounts payable by Customer to
SunGard under this Agreement do not include any taxes of any
jurisdiction that may be assessed or imposed upon the services
provided under this Agreement or the copies of the
Documentation provided to Customer, including sales, use,
excise, value added, personal property, export, import and
withholding taxes, excluding only taxes based upon SunGard's
net income. Customer shall directly pay any such taxes
assessed against it, and Customer shall promptly reimburse
SunGard for any such taxes payable or collectable by SunGard.
5.7 Payment Terms. SunGard shall submit invoices to Customer on a
monthly basis for monthly fees and routine expense
reimbursements. SunGard shall submit invoices to Customer for
any other fees or expense reimbursements as and when incurred.
All invoices shall be sent to Customer's address for invoices
stated on Schedule A. Customer's payments shall be due within
thirty (30) days after receipt of invoice. Interest at the
rate of eighteen percent (18%) per annum (or, if lower, the
maximum rate permitted by applicable law) shall accrue on any
amount not paid by Customer to SunGard when due under this
Agreement, and shall be payable by Customer to SunGard on
demand. Except as provided in Section 6.2(c), all fees and
other amounts paid by Customer under this Agreement are
non-refundable.
5.8 Fee Increases. SunGard will not increase the trade processing
fees (set forth in Schedule C1(1) or standard professional fee
rates in Schedule C3 for the initial term of the Agreement.
This does not include Third Party Provider charges which will
be billed to Customer by SunGard on a pass-thru basis.
5.9. Currency. All dollar amounts referred to in this Agreement and
any Product Schedule hereto are in United States Dollars.
5.10. Third Party Fees. The fees payable by Customer to SunGard in
accordance with this Section 5 do not include any applicable
royalties, costs, expenses and/or fees that may be imposed by
the Third Party Providers for the Third Party Data and
Services provided in accordance with this Agreement. Customer
shall
-7-
be solely responsible for, and shall pay, all such third party
fees as and when directed by SunGard or the Third Party
Providers.
6. WARRANTIES AND LIMITATIONS
6.1 Warranty of System Performance and Services. SunGard warrants
that the system will perform the Functionality as set forth in
Schedule A and in accordance with the Documentation. In
addition, SunGard shall use reasonable care in processing all
work and services transmitted to it by, or performed by
SunGard for, Customer. SunGard shall have no liability under
this Section 6.1 for how it processes work or performs
services unless, within sixty (60) days after discovery by
Customer, SunGard receives notice from Customer (in accordance
with Section 9.1) describing a processing error caused by
SunGard's failure to use reasonable care, together with
adequate supporting documentation and data. Upon receipt of
any such notice, SunGard's only obligation under this Section
6.1 is to correct the error and redo the work affected as soon
as reasonably practical at no additional charge, or, at
SunGard's option, to credit the charges applicable to the work
affected. Customer's data and files shall be handled in a
manner reasonably designed to ensure that viruses, delays or
other problems that may from time to time affect the data or
files of other SunGard clients do not harm, infect or corrupt
Customer's data or files or result in delays or other problems
in the processing, clearing or settlement of Customer trades.
6.2 Right to Perform Services; No Infringement. SunGard warrants
to Customer that Customer has the full legal right to use the
System, and that SunGard has the full legal right to provide
the System, System Services, Software and Documentation, in
accordance with this Agreement, and that the System, System
Services, Software and Documentation, in the form delivered to
Customer by SunGard and when properly used for the purpose and
in the manner authorized by this Agreement, do not infringe in
any material respect upon any United States patent or
copyright or any trade secret or other proprietary right of
any person. SunGard shall defend and indemnify Customer and
Customer's affiliates, agents and employees against any third
party claim to the extent attributable to a breach or
violation of the foregoing warranty. SunGard shall have no
liability or obligation under this Section 6.2 unless Customer
gives written notice to SunGard within ten (10) days (provided
that later notice shall relieve SunGard of its liability and
obligations under this Section 6.2 only to the extent that
SunGard is prejudiced by such later notice) after any
applicable infringement claim is initiated against Customer
and allows SunGard to have sole control of the defense or
settlement of the claim. Subject to Customer's termination
rights under Section 8, the remedies provided in this Section
6.2 are the sole remedies for a breach of the warranty
contained in this Section 6.2. If any applicable infringement
claim is initiated, or in SunGard's sole opinion is likely to
be initiated, then SunGard shall have the option, at its
expense, to:
(a) modify or replace all or the infringing part of the
System Services, System or Documentation so that it
is no longer infringing, provided that the System
Services do not change in any material adverse
respect; or
(b) procure the right to continue using or providing the
infringing part of the System Services, System or
Documentation; or
(c) remove all or the infringing part of the System
Services, System or Documentation, and refund to
Customer the corresponding portion of any monthly fee
paid in advance, in which case this Agreement shall
terminate with respect to the affected System
Services.
-8-
6.3 Customer Material. Customer warrants to SunGard that Customer
has the full legal right to grant to SunGard the right to use
the designs, plans, specifications or other materials provided
by or on behalf of Customer for inclusion in the System,
System Services, Software, or Documentation ("Customer
Material") and that the Customer Material does not infringe in
any material respect upon any United States patent (issued as
of the date of this Agreement), copyright, trade secret or
other proprietary right of any Person. Customer shall
indemnify and defend SunGard (and any SunGard Affiliates
providing software or services under this Agreement) against
any third party claim to the extent attributable to a breach
or violation of the foregoing warranty. Customer shall have no
obligations with respect to the indemnity in this Section 6.3
unless SunGard promptly gives written notice to Customer
within ten (10) days after any applicable infringement claim
is initiated against SunGard and allows Customer to have sole
control of the defense or settlement of the claim.
6.4 Conditions of Use. Customer represents and warrants to
SunGard, its Third Party Providers, agents, successors and
assigns and their respective employees (collectively, the
"Indemnified Group") that agreements between it and Third
Party Users expressly provide, and covenants that all such
agreements will provide, that none of the Indemnified Group
have or will have any liability for any representation,
warranty or condition, express or implied, with respect to any
services offered to the Third Party Users ("Customer's
Services"), the data and information provided thereby to the
Third Party Users or for any lost revenues, lost profits, loss
of business, or any incidental, indirect, consequential,
special, or punitive damages relating to the Third Party Users
use of the Customer Services. Customer shall indemnify and
defend the Indemnified Group from and against any of the
following: any and all claims, liabilities, and obligations
(including reasonable lawyer's fees) by any third party,
including Third Party Users, against the Indemnified Group and
arising out of Customer's or Third Party Users use of the
System, the System Services or the Documentation except to the
extent such claims, liabilities or obligations arise from, or
relate to, intentional misconduct, recklessness or gross
negligence on the part of SunGard or its agents or employees.
6.5 Care of Data. SunGard shall use reasonable care in handling
tapes or other materials which encode or contain data
belonging to Customer. Unless caused by gross negligence or
intentional misconduct on the part of SunGard or its employees
or agents, SunGard's only obligation for breach of this
Section 6.5 shall be to replace or repair the tape or material
lost or damaged and to make reasonable efforts to regenerate
any lost data from backup copies maintained by SunGard or from
source data provided by Customer.
6.6 Application of Data. SunGard shall have no liability for any
loss or damage resulting from any application of the results
obtained from the use of any services provided under this
Agreement or from any unintended or unforeseen results
obtained from the use of any services provided under this
Agreement.
6.7 Harmful Code. The System Service and System shall not contain
Harmful Code. For purposes of this Agreement, the term
"Harmful Code" shall mean any computer code or programming
instructions that are intentionally and knowingly constructed
by SunGard with the ability to damage, interfere with, or
otherwise adversely affect computer programs, data files, or
hardware without the consent or intent of the computer user.
This definition includes but is not limited to,
self-replicating and self-propagating instructions commonly
called "viruses" and "worms." SunGard will use commercially
available virus protection software to check for any such
Harmful Code. This warranty shall only apply to the System
Services and Services at the time of distribution to Customer.
6.8 Exclusion for Unauthorized Actions. SunGard shall have no
liability under any provision of this Agreement with respect
to any performance problem, claim of infringement or other
matter to the extent attributable to any unauthorized or
improper use or modification of the System or System Services,
any
-9-
unauthorized combination of the System or System Services with
other software (other than software included in the Specified
Configuration, which is authorized), or any breach of this
Agreement by Customer.
6.9 Force Majeure. Except for Customer's payment obligations,
neither party shall be liable for, nor shall either party be
considered in breach of this Agreement due to, any failure to
perform its obligations under this Agreement (other than its
payment obligations) as a result of a cause beyond its
control, including any act of God or a public enemy, act of
any military, civil or regulatory authority, change in any law
or regulation, fire, flood, earthquake, storm or other like
event, disruption or outage of communications (including the
Internet or other networked environment), power or other
utility, labor problem, unavailability of supplies, or any
other cause, whether similar or dissimilar to any of the
foregoing, which could not have been prevented by the
non-performing party with reasonable care. Customer
acknowledges that availability of System Services is subject
to normal System downtime and that SunGard is not responsible
for delays or inability to access services caused by
communications problems. Customer shall not be charged for
periods that the System or System Services do not provide
material functions (other than normal System downtime and
temporary downtimes of Third Party Data and Services in the
ordinary course) as a result of force majeure events.
6.10 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR
WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
REGARDING THE SYSTEM, THE SYSTEM SERVICES OR ANY OTHER MATTER
PERTAINING TO THIS AGREEMENT.
6.11 Exclusions. EXCEPT FOR A THIRD PARTY CLAIM UNDER SECTION 6.2,
OR A BREACH OF SECTION 7 (CONFIDENTIALITY) OR DAMAGES
OCCASSIONED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT
OF SUNGARD OR ITS EMPLOYEES OR AGENTS, SUNGARD'S TOTAL
LIABILITY UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES
EXCEED SIX HUNDRED THOUSAND DOLLARS ($600,000).
6.12 Consequential Damage Exclusion. EXCEPT WITH RESPECT TO A
BREACH OF SECTION 7 (CONFIDENITIALITY), AND EXCEPT IN THE
EVENT OF DAMAGES OCCASIONED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDCUT OF A PARTY OR ITS EMPLOYEES OR AGENTS,
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY (OR ANY OF ITS
AFFILIATES) BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR
LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, OR ANY
INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL, OR
PUNITIVE DAMAGES OF ANY KIND, INCLUDING SUCH DAMAGES ARISING
FROM ANY BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS
AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF
CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF THE PARTY
CAUSING THE DAMAGE HAS BEEN ADVISED OR WAS AWARE OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGES.
6.13 Data Exclusion. UNDER NO CIRCUMSTANCES SHALL SUNGARD AND ITS
AFFILIATED, OR ANY THIRD PARTY PROVIDERS BE LIABLE FOR TRUTH,
ACCURACY, SEQUENCE, TIMELINESS OR COMPLETENESS OF ANY
INFORMATION (INCLUDING THIRD PARTY DATA AND SERVICES) PROVIDED
BY OR PROCESSED BY THE SYSTEM, SOFTWARE, OR SUCH THIRD PARTY
PROVIDERS, FOR ANY INCONVENIENCE CAUSED BY THE LOSS OF THE
THIRD PARTY DATA AND SERVICES OR FOR ERRORS, MISTAKES OR
OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS IN THE
OPERATION OF THE SYSTEM, SYSTEM SERVICES OR SOFTWARE FROM
WHATEVER CAUSE.
-10-
6.14 Trading Loss Exclusion. UNDER NO CIRCUMSTANCES SHALL SUNGARD
(OR ANY OF ITS AFFILIATES PROVIDING SOFTWARE OR SERVICES UNDER
THIS AGREEMENT) OR ANY THIRD PARTY PROVIDER BE LIABLE TO
CUSTOMER OR ANY OTHER PERSON FOR TRADING LOSSES, INACCURATE
DISTRIBUTIONS, LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS,
OR ANY OTHER LOSSES RESULTING FROM CUSTOMER'S USE OF THE
SYSTEM, SYSTEM SERVICES, SOFTWARE, OR THE SERVICES PROVIDED
HEREUNDER OR THE THIRD PARTY DATA AND SERVICES, WHETHER SUCH
LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT
(INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND
WHETHER OR NOT FORESEEABLE, EVEN IF SUNGARD, ITS AFFILIATES OR
THIRD PARTY PROVIDERS ADVISED OR WAS AWARE OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGES. CUSTOMERS USE OF THE SYSTEM, SYSTEM
SERVICES, SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT
SHALL NOT BE DEEMED LEGAL, TAX OR INVESTMENT ADVICE.
6.15 Open Negotiation. CUSTOMER AND SUNGARD HAVE FREELY AND OPENLY
NEGOTIATED THIS AGREEMENT INCLUDING THE PRICING WITH THE
KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED
IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
6.16 Other Limitations. The warranties made by SunGard in this
Agreement, and the obligations of each party under this
Agreement (except for each party's indemnification obligations
under Section 6.2 and 6.3, respectively, which covers the
parties and their respective affiliates) run only to each
party and not to its affiliates, its customers or any other
persons. Under no circumstances shall any other person be
considered a third party beneficiary of this Agreement or
otherwise entitled to any rights or remedies under this
Agreement. Neither party shall have any rights or remedies
against the other except as specifically provided in this
Agreement.
7. CONFIDENTIALITY, OWNERSHIP AND RESTRICTIVE COVENANTS
7.1 Confidential Information. All Confidential Information of one
party ("Disclosing Party") in the possession of the other
("Receiving Party"), whether or not authorized, shall be held
in strict confidence, and the Receiving Party shall take all
steps reasonably necessary to preserve the confidentiality
thereof. One party's Confidential Information shall not be
used or disclosed by the other party for any purpose except as
necessary to implement or perform this Agreement, or except as
required by law, provided that the other party is given a
reasonable opportunity to obtain a protective order. The
Receiving Party shall limit its use of and access to the
Disclosing Party's Confidential Information to only those of
its employees whose responsibilities require such use or
access. The Receiving Party shall advise all such employees,
before they receive access to or possession of any of the
Disclosing Party's Confidential Information, of the
confidential nature of the Confidential Information and
require them to abide by the terms of this Agreement. The
Receiving Party shall be liable for any breach of this
Agreement by any of its employees or any other Person who
obtains access to or possession of any of the Disclosing
Party's Confidential Information from or through the Receiving
Party. Without limiting the generality of the foregoing,
confidential information of Customer's shall include
Customer's data, reports generated by SunGard from Customer's
data and the details of Customer's computer operations and
shall also include all information relating to Customer's
brokerage customers and their accounts and trading activity.
Confidential Information includes the terms, conditions,
provisions and, until publicly announced, the existence of
this Agreement and of the business relationship between
Customer and SunGard, none of which shall be disclosed by a
party without the consent of the other, which shall not be
unreasonably withheld or delayed, except as required by law or
pursuant to commercially reasonable confidentiality agreements
entered into in the ordinary course of business.
-11-
7.2 SunGard's Proprietary Items and Ownership Rights. The
Proprietary Items are trade secrets and proprietary property
of SunGard, having great commercial value to SunGard. All
Proprietary Items provided to Customer under this Agreement
are being provided on a strictly confidential and limited use
basis. Customer shall not, directly or indirectly,
communicate, publish, display, loan, give or otherwise
disclose any Proprietary Item to any Person, or permit any
Person to have access to or possession of any Proprietary
Item. Title to all Proprietary Items and all related patent,
copyright, trademark, service xxxx, trade secret, intellectual
property and other ownership rights shall remain exclusively
with SunGard, even with respect to such items that were
created by SunGard specifically for or on behalf of Customer.
Customer Material is the proprietary property of Customer.
Customer hereby grants SunGard a non-exclusive, worldwide,
royalty free license to modify, copy, use or otherwise include
the Customer Material in the System, System Services and
Documentation. This Agreement is not an agreement of sale, and
no title, patent, copyright, trademark, service xxxx, trade
secret, intellectual property or other ownership rights to any
Proprietary Items are transferred to Customer by virtue of
this Agreement. All copies of Proprietary Items in Customer's
possession shall remain the exclusive property of SunGard and
shall be deemed to be on loan to Customer during the term of
this Agreement.
7.3 Use Restrictions. Customer shall not do, attempt to do, nor
permit any other Person to do, any of the following:
(a) use any Proprietary Item for any purpose, at any
location or in any manner not authorized by this
Agreement; or
(b) make or retain any copy of any Proprietary Item
except as authorized by this Agreement; or
(c) create or recreate the source code for the System, or
re-engineer, reverse engineer, decompile or
disassemble the System; or
(d) modify, adapt, translate or create derivative works
based upon the System or Documentation, or combine or
merge any part of the System or Documentation with or
into any other software or documentation; or
(e) otherwise use any Proprietary Item as part of any
effort to develop a program having any functional
attributes, visual expressions or other features
similar to those of the System to compete with
SunGard; or
(f) remove, erase or tamper with any copyright or other
proprietary notice printed or stamped on, affixed to,
or encoded or recorded in any Proprietary Item, or
fail to preserve all copyright and other proprietary
notices in any copy of any Proprietary Item made by
Customer; or
(g) sell, market, license, sublicense, distribute or
otherwise grant to any person, including any
outsourcer, vendor, consultant or partner, any right
to use any Proprietary Item, whether on Customer's
behalf or otherwise; or
(h) use the System to conduct any type of service bureau
or timesharing operation or to provide remote
processing, network processing, network
communications or similar services to any person,
whether on a fee basis or otherwise.
-12-
7.4 Notice and Remedy of Breaches. Each party shall promptly give
written notice to the other of any actual or suspected breach
by it of any of the provisions of this Section 7, whether or
not intentional, and the breaching party shall, at its
expense, take all steps reasonably requested by the other
party to prevent or remedy the breach.
7.5. Enforcement. Each party acknowledges that the restrictions in
this Agreement are reasonable and necessary to protect the
other's legitimate business interests. Each party acknowledges
that any breach of any of the provisions of this Section 7
shall result in irreparable injury to the other for which
money damages could not adequately compensate. If there is a
breach, then the injured party shall be entitled, in addition
to all other rights and remedies which it may have at law or
in equity, to have a decree of specific performance or an
injunction issued by any competent court, requiring the breach
to be cured or enjoining all Persons involved from continuing
the breach. The existence of any claim or cause of action that
a party or any other Person may have against the other shall
not constitute a defense or bar to the enforcement of any of
the provisions of this Section 7.
7.6. Regulatory Access. During the term of this Agreement, the
records regarding Customer, if any, that are maintained and/or
produced by SunGard under this Agreement will be made
available for examination and audit by any governmental agency
or regulator that has jurisdiction over Customer's business.
Each party will notify the other promptly of any formal
request by an authorized governmental agency or regulator to
examine records regarding Customer that are maintained by
SunGard. Customer will reimburse SunGard for the reasonable
out-of-pocket costs SunGard incurs in performing its
obligations under this Section.
8. TERMINATION.
8.1 Initial Term; Renewal. The initial term of this Agreement
shall be for the period commencing the date this Agreement is
signed by an authorized officer of SunGard and Customer and
ending three (3) years after the date the System Services and
System are first provided by SunGard to customer on a live
basis (the "Live Date") (the "Initial Term") and thereafter
unless and until terminated in accordance with this Section 8
or any other section of this Agreement. SunGard or Customer
may terminate this Agreement at or following the end of the
Initial Term by giving at least ninety (90) days advance
written notice of termination to the other.
8.2 Termination by Customer. Customer shall have the right to
terminate its use of the System Services as follows:
(a) subject to Customer's obligation to pay the Early
Termination Reimbursement (as defined below), at any
time prior to the Live Date, upon written notice of
termination to SunGard;
(b) subject to Customer's obligation to pay the Live
Termination Payment (as defined below), at any time
following the Live Date upon written notice of
termination to SunGard effective no earlier than 30
days following the date of such written notice; or
(c) upon written notice to SunGard, in the event that:
(i) a Class 1 Error exists or occurs or,
through no fault of Customer, the System or System
Services fail to operate in any material respect, and
such Error or failure is not promptly corrected by
SunGard in a commercially reasonable manner and at no
charge to Customer within two (2) business days, or,
even if corrected within two (2) business days,
causes material adverse consequences to Customer, or
-13-
(ii) a material breach or default by SunGard
of the Agreement has occurred and (x) such material
breach or default, if curable, has not been cured
within 30 days of SunGard's receipt of written notice
from Customer of such material breach or default
(provided, however, if such cure will take more than
30 days, and SunGard commences actions to cure within
said 30-day period and diligently continues until the
cure is made, Customer shall not have the right to
terminate) or (y) as a result thereof, Customer's
business or clearing operations suffers material
adverse consequences, or
(iii) SunGard improperly denies Customer
access to the System Services (or any material part
thereof) or Customer's files maintained in the System
for more than one (1) business day or fails to
provide Customer any daily reports material to
Customer's business for more than two (2) consecutive
business days (or more than two times, even for one
business day, in any 90-day period), or
(iv) A breach of warranty or infringement
of the kind discussed in Section 6.2 has occurred or
is imminent, and SunGard is not or able to remedy the
situation in a time or manner sufficient to prevent
material adverse effects on Customer's trade
processing, clearing and settlement operations, or
(v) SunGard is unable to make, within a
reasonable time and a commercially reasonable manner
(and after being provided with reasonable notice) and
at no cost to Customer (except to the extent Customer
is required to contribute to the cost pursuant to
Section 3.8), modifications required for the System
to be or remain in compliance with any Regulatory
Requirements unless the continued effect of
noncompliance would not result in a substantial fine
or penalty, the continuous imposition of fines, or a
censure, sanction, suspension, expulsion or
cease-and-desist order on or of Customer or its
business activities.
Each of the foregoing is referred to as a
"Termination With Cause."
(d) "Early Termination Reimbursement" means an amount
equal to the sum of (x) $100,000, plus (y) $50,000
per month for each month SunGard is on Customer's
site to perform Initial Implementation and Minimum
Training, plus reasonable out-of pocket expenses
incurred by SunGard pursuant to this Agreement to
achieve the Live Date; provided, however, if the
reason for termination is Customer's failure to
obtain a third-party or governmental consent,
approval, license or authorization to conduct any
business supported by the System, the payment shall
be said $50,000 per month plus reasonable
out-of-pocket expenses incurred by SunGard pursuant
to this Agreement to achieve the Live Date, but in no
event exceeding a total amount higher than $175,000.
In the event an Early Termination Reimbursement is
due, SunGard shall provide a reasonably detailed
statement of time and materials costs and
out-of-pocket expenses.
(e) "Live Termination Payment" means: if the termination
notice specifies that Customer has decided to
terminate for any reason other than Termination With
Cause, or no specific reason, an amount equal to
$1,800,000 multiplied by a fraction, the numerator of
which is the number of full calendar months remaining
in the 36-month post-Live Date Initial Term and the
denominator of which is 36.
(f) In the event of a termination by Customer pursuant to
Section 8.2 (a) or (b) above, the Early Termination
Reimbursement or the Live Termination Payment (as
applicable) and the amounts described in Section 8.5
shall be the only charge, cost or expense
reimbursement of any kind
-14-
that Customer shall be obligated to pay SunGard with
respect to termination, or any period following the
termination date. In the event of a Termination With
Cause, no Early Termination Reimbursement, Live
Termination Payment or other charge, cost or expense
shall be payable by Customer to SunGard.
8.3 Termination by SunGard. SunGard may terminate this Agreement,
by giving written notice of termination to Customer (in
accordance with Section 9.1), upon the occurrence of any of
the following events:
(a) Customer fails to pay to SunGard, within thirty (30)
days after SunGard makes written demand therefor, any
past-due amount payable under this Agreement
including interest thereon that is not the subject of
a Good Faith Dispute.
(b) Customer breaches, in any material respect, any of
the provisions of Sections 7 and 9.3.
(c) Customer materially breaches or defaults under this
Agreement and does not cure the material breach or
default within thirty (30) days after SunGard gives
written notice to Customer describing the breach in
reasonable detail; provided, however, if such cure
will take more than 30 days, and Customer commences
actions to cure within said 30-day period and
diligently continues until the cure is made, SunGard
shall not have the right to terminate.
(d) Bankruptcy, insolvency, dissolution or liquidation
proceedings of any nature are instituted by Customer,
or against Customer (and not dismissed within 60
days), or Customer discontinues all or a significant
part of its business operations as a result of
insolvency.
8.4 Suspension of Services. On the occurrence of any event which
would permit SunGard to terminate this Agreement under Section
8.3, in addition to all other rights and remedies which
SunGard may have at law or in equity, SunGard may, without
terminating this Agreement, and in its sole discretion and
without further notice to Customer, suspend performance of any
or all of its services under this Agreement and/or activate
internal controls in the System that are designed to deny
Customer access to the System Services and files, until and
unless SunGard determines, in its sole discretion and upon
whatever conditions SunGard chooses to impose on Customer, to
resume performance of some or all of the suspended services or
allow Customer access to the System Services and files.
8.5 Effect of Termination. Upon a termination of this Agreement,
whether under this Section 8 or otherwise, subject to the
transition period activities contemplated under Section 8.6,
Customer shall immediately cease all use of the System
Services, Documentation and other Proprietary Items, Customer
shall promptly return to SunGard all copies of the
Documentation and any other Proprietary Items then in
Customer's possession. Customer shall remain liable for all
payments due to SunGard with respect to the period ending on
the date of termination, including any continuation of the
System and System Services until completion of the Termination
Transition Services. Within thirty (30) days after termination
of this Agreement, Customer shall give notice to SunGard
containing reasonable instructions regarding the disposition
of tapes, data, files and other property belonging to Customer
and then in SunGard's possession. SunGard shall comply with
that notice, except that SunGard may retain all such property
until SunGard receives any payments past due to SunGard under
this Agreement. Upon request contained in such notice, SunGard
shall convert Customer's data to machine readable form to the
extent practicable and at Customer's expense. If Customer
fails to give that notice within thirty (30) days after
termination of this Agreement, then SunGard may dispose of
such property as it sees fit, after giving at least 10 days
written notice to Customer. The provisions of Sections 5, 6
and 7 shall survive any termination of this Agreement, whether
under this Section 8 or otherwise. Notwithstanding anything to
the contrary contained in this Agreement, upon any termination
or notice of
-15-
termination the System and System Services shall not be
suspended or discontinued by SunGard until the transition
services described in Section 8.6 are completed. Both parties
agree to work diligently and in good faith to complete the
transition as soon as reasonably practicable
8.6 Termination Transition Services.
Commencing upon any notice of termination or non-renewal of
this Agreement, SunGard shall provide to Customer, for a
period of up to six (6) months, the reasonable
termination/expiration assistance requested by Customer to
allow the System and System Services to continue without
interruption and to facilitate the orderly transfer of the
System and System Services to Customer ("Termination
Transition Services"). Termination Transition Services will be
provided on a time and materials basis based on the SunGard
Standard Professional Fees then in effect;.
SunGard shall provide all reasonable information and
assistance necessary to permit the transition of the System
and System Services and functions being performed by SunGard
to Customer. Without limiting the foregoing, SunGard shall:
(a) Assist Customer in developing a plan for
transitioning the System and System Services back to
Customer;
(b) Assist Customer in notifying relevant third parties
of the procedures to be followed prior to and during
the transition;
(c) Assist Customer with the turnover of operational
responsibility, including reasonable assistance and
cooperation in the exercise of parallel operations,
monitoring, and testing; and
(d) After turnover of operational responsibility, provide
assistance as reasonably requested by Customer to
assure continuity of service during the balance of
the period during which Termination Transition
Services are to be provided.
9. OTHER PROVISIONS
9.1 Notice. All notices, consents and other communications under
or regarding this Agreement shall be in writing and shall be
deemed to have been received on the earlier of the date of
actual receipt, the third business day after being mailed by
first class certified air mail, or the first business day
after being sent by a reputable overnight delivery service.
Any notice may be given by facsimile, provided that signed
written original is sent by one of the foregoing methods
within twenty-four (24) hours thereafter. Customer's address
for notices is stated on Schedule A. SunGard's address for
notices is 00 Xxxxxx Xxxxx, Xxxxxxx, XX 00000. Attention:
Contract Administration, with a copy to SunGard Data Systems
Inc., 0000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000,
Attention: General Counsel for any (a) notice by Customer
alleging a breach of this Agreement by SunGard, or (b) a
termination of this Agreement. Either party may change its
address for notices by giving written notice of the new
address to the other party in accordance with this Section
9.1.
9.2 Defined Terms. As used in this Agreement, the following terms
have the following meanings:
(a) "affiliate," whether capitalized or not, means, with
respect to a specified person, any person which
directly or indirectly controls, is controlled by, or
is under common control with the specified person as
of the date of this Agreement, for as long as such
relationship remains in effect.
-16-
(b) "Confidential Information" means all business
information disclosed by one party to the other in
connection with this Agreement unless it is or later
becomes publicly available through no fault of the
other party or it was or later is rightfully
developed or obtained by the other party from
independent sources free from any duty of
confidentiality. Without limiting the generality of
the foregoing, Confidential Information shall include
Customer Data and the details of Customer's computer
operations and shall also include SunGard's
Proprietary Items. Confidential Information shall
include the terms of this Agreement, but not the fact
that this Agreement has been signed, the identity of
the parties hereto or the identity of the products
licensed under a Product Schedule.
(c) "copy," whether capitalized or not, means any paper,
disk, tape, film, memory device, or other material or
object on or in which any words, object code, source
code or other symbols are written, recorded or
encoded, whether permanent or transitory.
(d) "Customer Material" means the data, designs, plans,
specifications, invitations, improvements, works or
other materials provided by or on behalf of Customer
for inclusion in the System, System Services or
Documentation.
(e) "Export Laws" means all laws, administrative
regulations, and executive orders of any Applicable
Jurisdiction relating to the control of imports and
exports of commodities and technical data, use or
remote use of software and related property, or
registration of this Agreement, including the Export
Administration Regulations of the U.S. Department of
Commerce, the International Traffic in Arms
Regulations of the U.S. Department of State, and the
Enhanced Proliferation Control Initiative.
"Applicable Jurisdiction" means the U.S. and any
other jurisdiction where any Proprietary Items will
be located or from where any Proprietary Items will
be accessed under this Agreement.
(f) "Good Faith Dispute" means a good faith dispute by
Customer of certain amounts invoiced under this
Agreement. A Good Faith Dispute will be deemed to
exist only if (1) Customer has given written notice
of the dispute to SunGard promptly after receiving
the invoice and (2) the notice explains Customer's
position in reasonable detail. A Good Faith Dispute
will not exist as to an invoice in its entirety
merely because a certain amounts on the invoice have
been disputed.
(g) "including," whether capitalized or not, means
including but not limited to.
(h) "person," whether capitalized or not, means any
individual, sole proprietorship, joint venture,
partnership, corporation, company, firm, bank,
association, cooperative, trust, estate, government,
governmental agency, regulatory authority, or other
entity of any nature.
(i) "Proprietary Items" means, collectively, the System
and Documentation, the object code and the source
code for the System, the visual expressions, screen
formats, report formats and other design features of
the System, all ideas, methods, algorithms, business
processes, formulae and concepts used in developing
and/or incorporated into the System or Documentation,
all future modifications, revisions, updates,
releases, refinements, improvements and enhancements
of the System or Documentation, all adaptations or
derivative works (as such term is used in the U.S.
copyright laws) based upon any of the foregoing, and
all copies of the foregoing.
(j) "Third Party Data and Services" means the market data
or other data services provided by the Third Party
Providers.
-17-
(k) "Third Party Providers" means the Exchanges and any
other third party which provides data services or
data to SunGard, including its data feed providers.
(l) "Third Party Users" means, collectively, Customer's
customers and, if the processing of trades for
correspondent brokers is subsequently added to this
Agreement, any correspondent brokers and the
correspondent brokers' customers.
9.3 Parties in Interest. This Agreement shall bind, benefit and be
enforceable by and against SunGard and Customer and, to the
extent permitted hereby, their respective successors and
assigns. Customer shall not assign this Agreement or any of
its rights hereunder, nor delegate any of its obligations
hereunder, without SunGard's prior written consent, which
shall not be unreasonably withheld or delayed.. SunGard's
consent shall not be required in the case of an assignment to
a purchaser of, or a successor to, substantially all of
Customer's business, or to an affiliate of Customer, provided
that SunGard receives prior notice of the assignment together
with the successor's written undertaking to assume all of
Customer's obligations under this Agreement (if Customer's
obligations hereunder will not be transferred by operation of
law); provided that SunGard's prior written consent (as
described above) shall be required in the case where the
assignee is a competitor of SunGard (such as ADP). In the case
of an assignment to a current customer of SunGard, SunGard's
consent shall not be required; provided, however, unless
Customer's business as acquired is conducted in a manner that
it is identifiable as separate from the business of the
acquirer (in which event this Agreement shall continue to
operate in accordance with its terms after the assignment),
and unless the acquirer's agreement with SunGard otherwise
provides, SunGard, Customer and the acquirer shall in good
faith negotiate terms for the combined business. Any change in
control of Customer, and any assignment by merger or otherwise
by operation of law, shall constitute an assignment of this
Agreement by Customer to a purchaser or successor for purposes
of this Section 9.3.
9.4 Export Laws and Use Outside of the United States. Customer
shall comply with the Export Laws. Customer shall not export
or re-export directly or indirectly (including via remote
access) any part of the System or Confidential Information to
any country to which a license is required under the Export
Laws without first obtaining a license. If at any time SunGard
determines that the laws of any country have become
insufficient to protect its rights in the System, both parties
shall work in good faith to protect SunGard's rights in that
country.
9.5 Employees. Neither party shall, directly or indirectly
(through one or more subsidiaries or other controlled
entities), hire or offer to hire any programmer or data
processing employee, business analyst or contractor of the
other at any time when such person is employed or engaged by
the other or during the six (6) months after such employment
or engagement ends. For purposes of this provision, "hire"
means to employ as an employee or to engage as an independent
contractor, whether on a full-time, part-time or temporary
basis. This provision will remain in effect during the term of
this Agreement and for a period of one (1) year after
expiration or termination of this Agreement.
9.6 Entire Understanding. This Agreement, which includes and
incorporates the Schedules referred to herein, states the
entire understanding between the parties with respect to its
subject matter, and supersedes all prior proposals, marketing
materials, negotiations and other written or oral
communications between the parties with respect to the subject
matter of this Agreement. Any written, printed or other
materials which SunGard provides to Customer that are not
included in the Documentation are provided on an "as is"
basis, without warranty, and solely as an accommodation to
Customer.
9.7 Modification Waiver and Severability. No modification of this
Agreement, and no waiver of any breach of this Agreement,
shall be effective unless in writing and signed by an
authorized representative of the party
-18-
against whom enforcement is sought. No waiver of any breach of
this Agreement, and no course of dealing between the parties,
shall be construed as a waiver of any subsequent breach of
this Agreement. A determination that any provision of this
Agreement is invalid or unenforceable shall not affect the
other provisions of this Agreement.
9.8 Relationship. The relationship between the parties created by
this Agreement is that of independent contractors and not
partners, joint venturers or agents.
9.9 Headings. Section headings are for convenience of reference
only and shall not affect the interpretation of this
Agreement.
9.10. Audit. SunGard may, at its expense and by giving reasonable
advance written notice to Customer, enter Customer locations
during normal business hours and audit the number of copies of
the Documentation in Customer's possession, the scope of use
and information pertaining to Customer's compliance with the
provisions of Sections 1, 7 or 9.3(c). If SunGard discovers
that there is an unauthorized scope of use or that Customer is
not in compliance with the provisions of Sections 1, 7 or
9.3(c) in any material respect, then Customer shall reimburse
SunGard for the expenses incurred by SunGard in conducting the
audit.
9.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same
instrument. If this Agreement is executed via facsimile, each
party hereto shall provide the other party with an original
executed signature page within five (5) days following the
execution of this Agreement.
9.12 Jurisdiction and Process. In any action relating to this
Agreement, (a) each of the parties irrevocably consents to the
exclusive jurisdiction and venue of the federal and state
courts located in New York, New York (b) each of the parties
irrevocably waives the right to trial by jury, (c) each of the
parties irrevocably consents to service of process by first
class certified mail, return receipt requested, postage
prepaid, to the address at which the party is to receive
notice in accordance with Section 9.1, and (d) the prevailing
party shall be entitled to recover its reasonable attorney's
fees (including, if applicable, charges for in-house counsel),
court costs and other legal expenses from the other party.
9.13 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING
CHOICE OF LAW.
-19-
SCHEDULE A
TO REMOTE PROCESSING AGREEMENT
DATED June 10, 2003
SYSTEM AND RELATED INFORMATION
--------------------------------------------------------------------------------
SYSTEM: Phase3 System
Including those Functionality Requirements set forth in Exhibit A1
DOCUMENTATION (INITIAL COPY TO INCLUDE THE FOLLOWING):
Phase3 Reference Manuals
Phase3 Report Manuals
Release Notes
User Memos
MONTHLY FEE PAYMENT START DATE: LIVE DATE, as defined in Section 8.1. SunGard
shall use all reasonable efforts to ensure that the Live Date occurs by November
15, 2003.
SPECIFIED CONFIGURATION: 0000 XXXXX
7.0 EMULATION SOFTWARE
INTERNET EXPLORER VERSION 5.5 OR HIGHER
ADDRESS FOR INVOICES: Xxxxxxx Xxxxxxxxxxxx
TradeStation Securities
0000 XX 00xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
ADDRESS FOR NOTICES: SAME
-20-
Schedule "A1"
Functionality Requirements
o ACH Subsystem
o ACATS Subsystem
o Auto Transfer Units
o Central Asset Accounting: pertains to ATM, ACH, MMF, Checks, etc.
(No charge as long as PNC bank is used by R+T)
o CNS reconciliation
o Communications: printers, ports and any other requisite equipment
o Customer Inquiry Positions Pricing
o Data Retrieval Interface
o Deposit Automation Management Interface
o Depository Position Reconciliation--Daily w/DTC
o Dividend Record Date Positions Reconciliation
o Dividend Reinvestment Subsystem
o Electronic and Paper Confirmations and Statements
o Enhanced Institutional Delivery Subsystem
o Fluid Segregation Reporting Subsystem
o Fund/Serv Interface
o G/L Module
o Haircuts Reports
o X.X. Xxxxx Interface
o Large Option Position Reports
o Loanet Interface
o Margin Subsystem
o Master Limited Partnership Transmission
o Memo Segregation
o Money Market/Shareholder Accounting
o NSCC Networking: all levels
o OATS, INSITE, Rule 382 and other regulatory reporting
o OCC Reconciliation: Omnibus relationships for options
execution/clearing
o Option Building Program
o Option Expiration Weekend Processing
o Periodic payments Subsystem
o Post Trade Accounting: basically NSCC, , OCC and Client reconciliation
(CUSIP, settlement date, size and price)
o Prime Broker Interface (for DVP/RVP accounts)
o Reorganization Subsystem
o Reorganization Notification Program
o Automated Feed Interface: FII ( Financial Information, Inc.)
o Safekeeping (Stock Record)
o Sales Inquiry Subsystem
-21-
o Same Day, T+1, T+2 (accelerated) settlement
o Self-Directed XXX Subsystem
o SIAC Reports
o SWP/PAC Processing
o Tax Lot Accounting
o Transaction Upload Process
-22-
