Exhibit 10.1A
Confidential portion has
been omitted and filed
separately with the
Commission
EXECUTION COPY
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement"), dated as of May 24, 2001
(the "Effective Date"), is made and entered into by and between INFOCROSSING,
INC., a corporation organized under the laws of the State of Delaware
("Infocrossing"), and ALICOMP, A DIVISION OF ALICARE, INC., a corporation
organized under the laws of the State of New York ("Alicomp") (collectively, and
jointly and severally, Infocrossing and Alicomp shall hereinafter be referred to
as "IFOX"), on the one hand, and ADT SECURITY SERVICES, INC., a corporation
organized under the laws of Delaware ("ADT"), on the other hand.
RECITALS
A. ADT is in the process of evaluating and reorganizing its computer and
information technology departments. For this purpose, ADT has chosen IFOX as one
of its strategic information technology providers and has agreed to engage IFOX
on a non-exclusive basis to provide certain Services, as defined and described
in Article 1, in accordance with the terms of this Agreement.
B. IFOX has agreed to provide the Services to ADT, in accordance with the
terms of this Agreement for the Term, as defined below.
In consideration of the foregoing recitals, and the obligations stated
below, IFOX and ADT agree as follows:
ARTICLE 1. DEFINITIONS
As used in this Agreement, the following terms will have the following
meanings:
"ADDITIONAL SERVICES" means services provided to ADT by IFOX (other than
the Services) pursuant to a Change Order authorizing same.
"AFFILIATE" means, with respect to any entity, any entity directly or
indirectly controlling, controlled by, or under common control with such entity
by virtue of direct or indirect ownership of any of such entity's voting
securities, or by way of credit or management agreement, or otherwise.
"ADT INDEMNITEES" means ADT, its Affiliates, and its and their respective
directors, officers, employees, agents, successors and assigns.
"ADT PROJECT EXECUTIVE" means the ADT employee to whom all communications
from IFOX may be addressed and who has the authority to act for ADT in
connection with the day-to-day matters of this Agreement. Any written notice,
demand or other communication in respect of matters other than the day-to-day
provision of the Services will be addressed to the person or persons specified
in Section 12.2.
"APPLICATION SOFTWARE" means any application software owned or provided by
ADT residing on the IBM Mainframe.
"BASE CHARGES" mean the Charges listed in Section 2.0 of Schedule C.
"CHANGE CONTROL DOCUMENT" means the document that IFOX prepares in response
to a change request, and, which if accepted, is signed by ADT, in accordance
with Article 5.
"CHANGE ORDER" means a change approved by both IFOX and ADT in accordance
with the procedures in Article 5 pursuant to a Change Control Document executed
by both IFOX and ADT.
"CHARGES" means the monetary amounts for which ADT is responsible
hereunder, or that are payable hereunder by ADT to IFOX, for Services, starting
on the Commencement Date, all of which are described by and adjusted pursuant to
the provisions of Schedule C, which includes charges for Additional Services
when those Additional Services commence pursuant to a Change Order.
"COMMENCEMENT DATE" means October 1, 2001.
"CONFIDENTIAL INFORMATION" shall have the meaning defined in Section 6.1.
"CONVENIENCE TERMINATION FEE" means the amount payable under Section 7.0 of
Schedule C upon termination of this Agreement by ADT for convenience, as
provided in Article 11.6.
"CONTRACT YEAR" means any period of 365 days commencing on the Commencement
Date (or any subsequent anniversary thereof) and continuing until the day before
the next anniversary of the Commencement Date.
"EQUIPMENT" means computer hardware, telecommunications hardware, and all
peripheral equipment associated with either computer or telecommunications
hardware used to perform the Services, including, but not limited to, the IBM
Mainframe.
"IBM MAINFRAME" means an IBM zSeries 900 Server with 449 MIPS and three
Terabytes of usable DASD with Mirroring (IBM Shark) Virtual Tape Storage and
Standard 3490 and 3590 Tape Subsystems as needed, and all peripheral Equipment.
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"IFOX ACCOUNT EXECUTIVE" means an employee of IFOX to whom all
communications from ADT may be addressed and who has the authority to act for
IFOX in connection with the day-to-day matters of this Agreement. Any written
notice, demand or other communication in respect of matters other than the
day-to-day performance of the Services will be addressed to the person or
persons specified in Section 12.2.
"IFOX ACCOUNT MANAGER" means the person designated by the IFOX Account
Executive who has the authority to act for the IFOX Account Executive (and
therefore, IFOX) in connection with the day-to-day performance of the Services
pursuant to this Agreement.
"IFOX INDEMNITEES" means IFOX, its Affiliates, and its and their respective
directors, officers, employees, agents, successors and assigns.
"IFOX OUTSOURCING CENTER" means the IFOX facility where IFOX performs all
Services, located in Leonia, New Jersey on the Commencement Date, or such other
location thereafter as may be mutually agreed upon by IFOX and ADT in a Change
Order.
"INITIAL TERM" means the initial term of four (4) years beginning on the
Commencement Date.
"KEY IFOX PERSONNEL" means the IFOX employees from time-to-time assigned to
the positions listed on Schedule A.
"MATERIAL OPERATIONS CHANGE" means a material change in the nature of ADT's
operations or its computer or data processing requirements occurring after the
Commencement Date which (i) was neither disclosed by ADT nor otherwise known or
reasonably foreseeable by IFOX as of the Commencement Date, and (ii) requires
capacity in excess of the IBM Mainframe and improvements beyond the scope of the
Services and Additional Services.
"NON-DISCLOSURE AGREEMENTS" means the two (2) non-disclosure letter
agreements, each dated as of April 1, 1999, by and between (i) Infocrossing and
ADT, and (ii) Alicomp and ADT
"OUT-OF-POCKET EXPENSES" means the reasonable, out-of-pocket expenses
actually incurred and paid by IFOX to unaffiliated third parties with ADT's
prior, written authorization, for Equipment (other than the IBM Mainframe),
materials, supplies, software (other than Third Party Software), licenses,
maintenance, travel, lodging, or other services provided by IFOX directly and
exclusively to ADT as part of the Services, including related taxes, duties,
shipping, and insurance, and which are expressly and specifically designated for
reimbursement by ADT to IFOX hereunder.
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"PARTY" or "PARTIES" means each of Infocrossing, Alicomp, and ADT,
individually or collectively.
"PROPRIETARY RIGHTS" means all patents, inventions, trade secrets,
trademarks, service marks, copyrights, and other proprietary and intellectual
property rights, world-wide, whether now existing or arising hereafter.
"REIMBURSABLE EXPENSES" means certain Out-of-Pocket Expenses to be paid to
IFOX pursuant to Section 3.0 of Schedule C.
"RENEGOTIATED INITIAL TERM" means an extension of the duration of the
Initial Term as may be mutually agreed in writing by the Parties in their sole
discretion in a written amendment hereto.
"RENEWAL TERM" means any one of the three (3) one-year renewals authorized
by Section 11.2.
"SERVICES" means the services described in Schedule A (as it may be amended
from time-to-time in writing pursuant to this Agreement) and which are provided
(or to be provided) by IFOX to ADT or, at the direction of ADT, to an Affiliate
of ADT.
"SERVICE LEVELS" mean the various objective, measurable performance
standards described in Schedule B, and any additions to Schedule B to reflect
Service Levels for Additional Services, and applied during the Term to assess
IFOX's performance, in accordance with Schedule B.
"STEERING COMMITTEE" means the joint advisory committee as described in
Section 5.1, consisting of up to six (6) members.
"TERM" means the term of this Agreement as described by Sections 11.1 and
11.2, consisting of, collectively, the Initial Term, any Renegotiated Initial
Term, and any Renewal Term(s), subject to any early termination of any of the
foregoing hereunder.
"THIRD PARTY CONTRACT" means any written or oral agreement or understanding
between IFOX and any third party for the purchase, sale, lease, license, or
other acquisition or provision of any and all Equipment (including, but not
limited to, the IBM Mainframe), Third Party Software, or other real or personal
property, manpower, services, or other resources.
"THIRD PARTY SOFTWARE" means the software listed on Schedule D, and any and
all updates, upgrades, and substitutions thereof and/or thereto hereunder.
ARTICLE 2. IFOX SERVICES
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SECTION 2.1 IFOX ACCOUNT EXECUTIVE
IFOX will designate, prior to the Commencement Date, a person who will be
the IFOX Account Executive. The IFOX Account Executive will designate, prior to
the Commencement Date, a person who will be the IFOX Account Manager.
SECTION 2.2 KEY IFOX PERSONNEL
Assignments of IFOX personnel to positions designated as Key IFOX Personnel
will be subject to ADT's prior written approval, following review of the
individual's resume and, upon ADT's request, an interview with ADT. ADT agrees
to consult with IFOX concerning any objections ADT may have to a proposed
assignment or reassignment of IFOX's personnel.
SECTION 2.3 CERTAIN REPLACEMENTS
ADT may require for reasonable cause that IFOX remove any IFOX personnel
working at an ADT facility provided that: (a) ADT will provide to IFOX an
explanation in reasonable detail of its reasons and (b) IFOX will be given
fifteen (15) days to resolve the matter to ADT's satisfaction or remove said
IFOX personnel (except in urgent circumstances, such as serious misconduct, when
IFOX will remove the IFOX personnel immediately). If removal of any IFOX
personnel will adversely impact IFOX's ability to provide the Services, IFOX may
invoke the dispute resolution process described in Article 10.
SECTION 2.4 PROVISION OF SERVICES
During the Term, IFOX will provide to ADT, and ADT will obtain from IFOX,
the Services and Additional Services, on a non-exclusive basis, subject to and
in accordance with the provisions of this Agreement.
IFOX will provide and perform the Services to and for ADT: (i) at the IFOX
Outsourcing Center; (ii) on the IBM Mainframe; (iii) using the Third Party
Software; and (iv) with Key IFOX Personnel. The IBM Mainframe and any Third
Party Software not procured by IFOX under an enterprise license shall be
dedicated solely and exclusively to ADT on a full-time basis and shall only be
used to perform Services for ADT and for no other person, entity, or purpose.
IFOX shall deliver all Services to ADT throughout the Term in compliance with
the requirements of this Section 2.4 (the "Fixed Requirements"), except to the
extent that such Fixed Requirements are specifically and expressly modified in a
Change Order.
SECTION 2.5 SERVICE LEVELS
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IFOX will ensure that its performance of the Services will meet or exceed
each of the applicable Service Levels hereunder, unless IFOX and ADT otherwise
agree in writing in a Change Order that some other standard of performance will
apply to a particular Service or function. If the Service is inoperable or
unavailable to ADT (other than as a result of the causes excluded in Section
2.7) for any period during Term, the Monthly Base Charges shall xxxxx and/or, if
previously paid by ADT, shall be refunded to ADT, on a pro-rata basis for the
period of such inoperability or unavailability, in addition to ADT's other
rights and remedies for such failure hereunder, at law, or in equity.
SECTION 2.6 REVIEW AND REVISION OF SERVICE LEVEL
Periodically, as appropriate, or as agreed in the relevant Schedules, and
at least once during each Contract Year, the parties will review the Service
Levels and, if they agree, adjust the Service Levels to reflect appropriate
changes in circumstances, including without limitation: (a) adjusting Service
Levels to reflect improved performance capabilities associated with advances in
the technology and methods used generally to perform similar services or (b)
adjusting Service Levels to reflect service or resource reductions requested or
approved by ADT. Any such mutually agreed upon changes will be solely by Change
Order or other written agreement signed by IFOX and ADT amending the applicable
Schedules.
SECTION 2.7 EXCLUSIONS
Degradations of system performance occurring after IFOX provides ADT with
written notice thereof will not constitute IFOX's failure to meet applicable
Service Levels if any such noticed degradation or failure is attributable,
directly and solely, to any one or more of the following causes:
a. Force Majeure Events (as defined in Section 5.6);
b. ADT's negligent errors, omissions, or breaches of this Agreement;
c. Negligent acts or omissions of ADT's third party contractors (other
than IFOX, its Affiliates, or any of their respective employees,
agents, representatives, or contractors (each, an "IFOX Entity"));
d. IFOX's compliance with specific, authorized instructions given by the
ADT Project Executive (or its designees acting within the scope of
their authority) to IFOX after the Commencement Date, including, but
not limited to, ADT's refusal to approve IFOX's performance of
regularly scheduled maintenance of Equipment in accordance with the
Equipment manufacturer's maintenance schedule for such Equipment;
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e. Infringements of third party proprietary rights by ADT or its third
party contractors (other than an IFOX Entity);
f. Willful misconduct or violations of law by ADT or its third party
contractors (other than an IFOX Entity);
g. Material defects in Application Software not created by any IFOX
Entity;
h. Initial manifestations of latent, material defects in Third Party
Software, provided that (and for so long as) such defects (i) were
unknown to IFOX at the time it procured the Third Party Software, (ii)
could not be detected or prevented by IFOX's performance of the
Services applicable to such Third Party Software as required
hereunder, and (iii) cannot be cured by IFOX despite its continued
performance of the Services with respect to such Third Party Software
in accordance with this Agreement ("Third Party Software Defects");
i. Service or resource reductions requested or approved by ADT and agreed
by IFOX and ADT through Change Orders;
j. Material Operations Changes;
k. Failures to meet Service Levels due to IFOX's operating ADT's disaster
recovery plan in accordance with its terms as described in Schedule A;
or
l. Testing of the IBM Mainframe by "ADT's Auditors" during any audit
conducted pursuant to Section 2.11.
Notwithstanding the foregoing, failures to meet Service Levels resulting from
Force Majeure Events and Third Party Software Defects shall be included for the
purposes of Section 11.4.
SECTION 2.8 SPECIFIC CHANGES RELATED TO DELIVERY OF THE SERVICES
IFOX will provide, pay for, maintain, support and manage all IFOX and
subcontractor resources used to provide Services as required by this Agreement,
at IFOX's cost and expense. Except as may be necessary on an emergency basis to
maintain the continuity of the Services at no additional charge to ADT, IFOX
shall not, without ADT's prior written consent (which consent shall not be
unreasonably withheld), modify either the (i) composition or nature of the
Services or (ii) manner in which the Services are provided or delivered to ADT.
Subject to compliance with the Fixed Requirements, IFOX reserves the right to
make temporary resource changes only as is absolutely necessary to continue
performing Services for ADT in the event of any emergency caused by a Force
Majeure Event, at no additional charge to ADT. Except for ADT's payment of
Reimbursable
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Expenses to IFOX as provided herein, IFOX shall, at its sole cost and expense,
under Third Party Contracts, procure, provide, maintain, administer, support,
and pay for any and all manpower, tangible and intangible property (including,
but not limited to, all Third Party Software and Equipment), facilities,
services, software, hardware, and other resources of any kind or nature
whatsoever used or required to perform the Services for ADT in accordance with
terms and conditions contained herein.
SECTION 2.9 RIGHT TO PERFORM SERVICES FOR OTHERS
ADT recognizes that IFOX's personnel providing Services to ADT under this
Agreement may perform similar services from time-to-time for other persons, and
this Agreement will not prevent IFOX from using such personnel (or any Equipment
other than that the Equipment excluded below) for the purpose of performing such
similar services for such third parties (collectively, "Competing Services"),
including competitors of ADT; provided, however, that (i) IFOX complies with its
obligations concerning ADT's Confidential Information and Proprietary Rights,
and (ii) IFOX does not use the IBM Mainframe, any Third Party Software not
procured by IFOX under an enterprise license, Application Software, or any
property or services for which ADT has reimbursed IFOX in full hereunder
(collectively, "ADT Resources") to provide or perform any Competing Services; it
being agreed that all ADT Resources shall be dedicated solely and exclusively to
ADT and IFOX's performance of the Services for ADT hereunder, and for no other
purpose whatsoever.
Similarly, ADT is retaining IFOX to perform the Services and any Additional
Services on a non-exclusive basis, and ADT may, during the Term, and without
waiving any default by IFOX hereunder, itself internally perform and/or retain
third party suppliers, including, but not limited to, competitors of IFOX, to
perform any service, function, responsibility, activity or task that is within
the scope of the Services or would constitute an Additional Service hereunder.
SECTION 2.10 SUBCONTRACTS
IFOX shall not disclose any of ADT's Confidential Information to any IFOX
Affiliate, subcontractor, or agent (collectively, "Subcontractor(s)") without
ADT's prior written consent. IFOX may delegate performance of any of its duties,
obligations and responsibilities hereunder (except for housing the IBM
Mainframe) to any Subcontractor at IFOX's sole cost and expense; except that (i)
IFOX may not delegate such performance to any entity which is itself or any of
whose Affiliates are direct or potential competitors of ADT or to any vendors
which are themselves or any of whose Affiliates are in the electronic security
industry without ADT's prior written consent, (ii) IFOX may not provide any
Subcontractor with any access to the IBM Mainframe or ADT Confidential
Information without ADT's prior written consent; (iii) IFOX may not provide any
Subcontractor with any access to the IBM Mainframe or ADT Confidential
Information until such Subcontractor has executed and delivered to IFOX a
nondisclosure agreement consistent
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with Section 6.1 and the terms of this Agreement, and (iv) IFOX may not delegate
or subcontract a material portion of the Services to any individual
Subcontractor or any group of Subcontractors taken in the aggregate. IFOX shall
cause each Subcontractor to comply with (A) its respective nondisclosure
agreement, and (B) all of IFOX's applicable obligations hereunder, and IFOX
shall remain responsible and liable to ADT for any failure by any Subcontractor
to so comply. IFOX will also remain directly and primarily responsible to ADT
for (I) the timely and proper performance of all delegated and subcontracted
Services and obligations in accordance with the terms and conditions of this
Agreement, (II) safeguarding ADT's Confidential Information disclosed to or used
by IFOX's Subcontractors in accordance with the Nondisclosure Agreement, and
(III) all other acts and omissions of each of its Subcontractors to the same
extent as if such acts or omissions were committed by IFOX itself.
SECTION 2.11 AUDITORS
IFOX will assist ADT and ADT's Affiliates in meeting their audit and
regulatory requirements, as they relate to IFOX and the Services, to enable ADT,
ADT's Affiliates and their respective auditors ("ADT AUDITORS") to conduct
appropriate audits as required by law, generally accepted accounting principles,
generally accepted accounting standards, industry practices, or which have been
customarily performed by ADT or ADT's Affiliates. ADT, ADT's Affiliates and ADT
Auditors will have access to ADT's data and to IFOX's records concerning the
Services and IFOX's performance thereof, the Charges, Out of Pocket Expenses,
and the Reimbursable Expenses, but will otherwise have no access to other IFOX
data, data of other IFOX clients, or IFOX's costs. ADT Auditors will observe
such security procedures as IFOX may reasonably require to protect its
proprietary information and that of its clients. If IFOX's provision of services
related to an audit or other review by ADT, ADT's Affiliates, or an ADT Auditor
under this Section 2.11 ("Audit(s)"), including, but not limited to, the initial
financial or technical audit conducted during any Contract Year, requires IFOX
to use additional computer resources which IFOX would not otherwise use in the
performance of the Services, then ADT will pay IFOX for such reasonable,
additional usage of such computer resources at rates mutually agreed upon
between ADT and IFOX in writing in advance (collectively, "Mutually Agreed Upon
Rates"); provided, however, that prior to utilizing any such additional computer
resources, IFOX shall advise ADT of same and obtain ADT's prior written approval
thereto. If IFOX's provision of services related to an Audit, excluding the
initial financial or technical Audit conducted during any Contract Year by ADT,
an ADT Affiliate, or an ADT Auditor (the "Initial Audit Resource Exemption"),
requires IFOX to use additional resources other than computer resources
(collectively, "Miscellaneous Resources") which IFOX would not otherwise use in
the performance of the Services, then ADT will pay IFOX for such reasonable,
additional Miscellaneous Resources at the rates specified for Additional
Services in Section 6 of Schedule C, or if no rate is so specified, at Mutually
Agreed Upon Rates; provided, however, that prior to utilizing any such
additional Miscellaneous Resources, IFOX shall advise ADT of same and obtain
ADT's prior written approval thereto.
9
ADT, ADT Affiliates, and the ADT Auditors may, at ADT's expense, also (1)
verify the accuracy of Charges and Reimbursable Expenses billed to ADT; (2)
examine IFOX's performance of the Services, including auditing (A) general
controls and security practices and procedures, and/or (B) disaster recovery and
back-up procedures; and/or (3) conduct any other Audit necessary to enable ADT
and/or ADT's Affiliates to meet applicable regulatory requirements. Any Audits
conducted pursuant to this Section 2.11 will be at ADT's expense; provided,
however, that all reasonable costs incurred by ADT in conducting any such
financial Audit shall be reimbursed by IFOX in the event that such financial
Audit reveals payment errors in ADT's favor of five percent (5%) or more. ADT's
audit rights will survive expiration or termination of this Agreement for a
period of three (3) years. IFOX will maintain accurate, complete, and timely
books and records establishing an audit trail of all Charges and Reimbursable
Expenses and all other transactions relating to this Agreement for three (3)
years following completion of the relevant Contract Year. IFOX shall provide all
such books and records to ADT, ADT's Affiliates, and the ADT Auditors for
inspection and copying during each Audit.
At ADT's request, IFOX will permit and assist third parties designated by
ADT, including, but not limited to, ADT's "affinity partners," in their
performance of audits and reviews of the books, records, and systems available
for audit and review by ADT Auditors (collectively, "Third Party Audits"). Third
Party Audits shall be subject to the same rates, terms, and conditions as are
applicable to ADT Audits; provided, however, that there shall be no Initial
Audit Resource Exemption for any Miscellaneous Resources expended by IFOX in any
Third Party Audit.
ARTICLE 3. ADT RESPONSIBILITIES
SECTION 3.1 ADT PROJECT EXECUTIVE
ADT will designate, prior to the Commencement Date, a person who will be
the ADT Project Executive. ADT may change the ADT Project Executive from
time-to-time on reasonable written notice to IFOX.
SECTION 3.2 Intentionally Deleted
SECTION 3.3 Intentionally Deleted
SECTION 3.4 SOFTWARE MAINTENANCE AND UPGRADES
Effective on the Commencement Date and continuing, during the Term, IFOX
will provide and be responsible for the day-to-day maintenance and support of
and for all software listed on Schedule D (a.k.a., the Third Party Software).
All maintenance and
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support of Third Party Software (including, but not limited to, procurement,
installation, testing, support, and maintenance of all upgrades and updates of
and to Third Party Software) shall be provided and performed by IFOX as part of
the Services and is included in the Base Charges.
ADT may, through the Change Order process, direct IFOX to install and
operate any new or upgraded or additional Third Party Software not listed on
Schedule D (collectively, "New Third Party Software"). All costs for licenses,
upgrades, or additional maintenance for New Third Party Software are
Reimbursable Expenses, and IFOX shall be paid for such costs in accordance with
Schedule C.
SECTION 3.5 SUPPORT SERVICES
Subject to the terms and conditions contained in this Agreement, ADT will:
a. perform its responsibilities, in all material respects, in accordance
with the Schedules and otherwise in accordance with ADT's practices
and policies as of the Commencement Date;
b. Intentionally Deleted;
c. make responsible members of its organization reasonably available on a
part-time basis as and when reasonably required to consult with IFOX
concerning the Services;
d. give all reasonable assistance and, subject to the prior, written
agreement of ADT, be responsible for such other activities and
functions as may be so specifically agreed upon by ADT and are
reasonably required to enable IFOX to provide the Services; and
e. perform, in all material respects, the other functions and services
specifically required to be performed by ADT under this Agreement,
including in the attached Schedules.
ARTICLE 4. NONSOLICITATION OF EMPLOYEES
During the Term and for one (1) year thereafter, no Party will directly or
indirectly solicit any employee of another Party to leave such other Party's
employ in order to accept employment with the first Party, its Affiliates,
actual or prospective contractors, or any person acting in concert with the
first Party, without the other Party's prior written consent. The Parties agree
that a Party that breaches this Article 4 shall pay the injured Party an amount
equal to the applicable person's then current annual salary as liquidated
damages, and not as a penalty, for such breach.
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ARTICLE 5. CONTRACT ADMINISTRATION
SECTION 5.1 STEERING COMMITTEE
On or prior to the Commencement Date, IFOX and ADT will establish a six (6)
person Steering Committee by designating in writing three (3) members each. IFOX
and ADT each may at any time change one or more of its designated members upon
written notice to the other Party. The Steering Committee will: (a) review
performance objectives and measurements on a quarterly basis and (b) attempt to
resolve disputes between IFOX and ADT.
SECTION 5.2 REQUEST FOR CHANGE IN SERVICES
All requests by ADT or IFOX for changes or additions to the Services or
Service Levels or Charges or any other aspect of this Agreement are subject to
the procedures concerning Change Control Documents and Change Orders ("Change
Control Procedures") in this Article and shall require and be only as set forth
in a Change Order. ADT may at any time during the Term request that the Services
or Service Levels be revised to accommodate ADT's business requirements. IFOX
may at any time propose changes through preparation, at IFOX's expense, and
delivery to ADT of a Change Control Document, as provided below.
SECTION 5.3 IFOX'S RESPONSE TO A REQUEST
The IFOX Account Executive will assess the impact of the desired change on:
(a) the total cost of the Services; (b) the Service Levels; and (c) any further
areas which, in the reasonable opinion of the IFOX Account Executive, are likely
to be affected by the requested change. IFOX will prepare a Change Control
Document describing the change, the cost of the change, any effect upon Service
Levels, and other particulars.
SECTION 5.4 OFFER TO PROVIDE REVISED SERVICE
The Change Control Document from IFOX will constitute an offer by IFOX to
deliver the requested Services hereunder with the associated changes to price,
payment terms, delivery schedules and related areas as set forth in the Change
Control Document. Such offer will be irrevocable for ten (10) business days
after receipt.
SECTION 5.5 ACCEPTANCE OF OFFER BY ADT
If ADT accepts IFOX's offer by signing the Change Control Document, the
sections of this Agreement and Schedule(s) affected by the change will be deemed
amended to
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incorporate the change or, at IFOX's option, IFOX will prepare a new schedule to
this Agreement which, upon execution by IFOX and ADT, will be deemed a
"Schedule" for purposes of this Agreement and will be incorporated by reference.
No Change Control Document shall be implemented unless signed by ADT and IFOX.
Unless such Change Control Document expressly provides otherwise, all revised
Services and Additional Services shall be provided during the originally stated
Term and shall terminate concurrently with the Services.
SECTION 5.6 FORCE MAJEURE EVENTS
IFOX shall not be liable to ADT, and ADT shall not be liable to IFOX, for
any default or delay in the performance of its obligations under this Agreement
if and to the extent such default or delay (each, a "Force Majeure Event"):
a. is caused by a fire, flood, earthquake, elements of nature or acts of
God; acts of war, terrorism, riots, civil disorders, rebellions or
revolutions; strikes, lockouts, or labor difficulties (including in
the case of any Party's performance, labor difficulties affecting
another Party), Equipment failures, software failures, computer
viruses, malicious acts of third parties, interruption of
telecommunications service or any other similar cause beyond the
reasonable control of such Party; that
b. could not have been prevented by reasonable precautions (including,
without limitation, standard commercial antivirus products and
procedures, emergency power supplies, any back-up systems that IFOX is
required to maintain and other measures that are standard in the
industry); and that
c. cannot reasonably be circumvented by the non-performing Party through
the use of alternate sources, workaround plans or other means;
provided, however, that:
d. the delayed or non-performing Party will be excused from performance
of the obligations so affected hereunder only: (i) for as long as such
circumstances causing its default or delay prevail and such Party
continues to use commercially reasonable efforts to recommence
performance or observance whenever and to whatever extent possible
without delay, and (ii) any Party so delayed or prevented in its
performance will immediately notify the other by telephone and
describe at a reasonable level of detail the circumstances causing
such delay or failure (to be confirmed in writing within twenty-four
(24) hours after the inception of such delay).
ARTICLE 6. CONFIDENTIAL INFORMATION
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SECTION 6.1 CONFIDENTIAL INFORMATION
As used herein, the term "Confidential Information" shall mean any and all
tangible and intangible information, data, and materials, in any medium
whatsoever, whether written, oral, electronic, or otherwise (collectively,
"Information"): (i) which is disclosed or otherwise made available in connection
with this Agreement, Services, and/or Additional Services by or behalf of one
Party (the "Disclosing Party"), its Affiliates, or any of its and their
respective employees, agents, consultants, advisors, or contractors
(collectively, "Representatives") to another Party (the "Receiving Party"),
regarding the Disclosing Party, its Affiliates, and/or its and their respective
businesses, customers, operations, vendors, facilities, computer systems,
security procedures, disaster recovery procedures, assets, and/or finances,
and/or (ii) with respect to ADT (which shall, for the purposes of this Section
6.1, be deemed the Disclosing Party with regards to the Information described in
this item (ii)), (A) the Application Software and (B) any and all Information
transmitted, received, created, generated, collected, stored, compiled, and/or
processed (1) on, to, with, or by the IBM Mainframe and/or any temporary or
permanent replacement, substitute, or successor thereto or (2) otherwise by IFOX
or any of its Representatives for ADT and/or its Affiliates in connection with
this Agreement, the Services, and/or Additional Services. The term "Confidential
Information" shall be deemed to include, without limitation, all notes,
analyses, extracts, summaries, compilations, studies, interpretations or other
Information prepared by the Receiving Party which contain, reflect or were based
upon, in whole or in part, the Confidential Information of the Disclosing Party.
The term Confidential Information does not include Information which: (i) is or
becomes generally available to the public other than as a result of the
disclosure by the Receiving Party, (ii) was within the Receiving Party's
possession prior to it being furnished to the Receiving Party by or on behalf of
the Disclosing Party pursuant hereto and/or, with respect to ADT's Confidential
Information, prior to being transmitted, received, created, generated,
collected, stored, compiled, and/or processed in the manner described above,
provided that the source of such information was not known by the Receiving
Party to be bound by a confidentiality agreement with, or under contractual,
legal or fiduciary obligation of confidentiality to, the Disclosing Party, (iii)
becomes available to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, provided that the source of such
information was not known by the Receiving Party to be bound by a
confidentiality agreement with, or under contractual, legal or fiduciary
obligation of confidentiality to, the Disclosing Party, or (iv) is independently
developed by the Receiving Party and does not constitute, contain, reflect, and
is not based upon, in whole or in part, the Disclosing Party's Confidential
Information.
The Receiving Party agrees that it will use the Disclosing Party's
Confidential Information solely to perform its obligations under this Agreement
during the Term (and as is necessary to perform any "Transition Services" under
Section 11.7 thereafter), that the Disclosing Party's Confidential Information
will be kept confidential, and that the Receiving Party will not, in any manner,
directly or indirectly, disclose any of the Disclosing Party's Confidential
Information to any third party, except to its Representatives
14
who have a "need to know" such Confidential Information to perform the Receiving
Party's obligations or exercise its rights hereunder, and if such Representative
is an IFOX Subcontractor, has fulfilled all of the requirements of Section 2.10,
provided, however, that the Receiving Party may make any disclosure of such
information as to which the Disclosing Party gives its prior written consent.
In the event that the Receiving Party is requested or required by subpoena,
court order or other similar legal process to disclose any of the Disclosing
Party's Confidential Information, the Receiving Party shall provide the
Disclosing Party with prompt written notice of any such request such that the
Disclosing Party may, at its sole option, cost, and expense, seek to contest or
limit such disclosure by way of protective order, injunction, or otherwise. Upon
the Disclosing Party's failure to obtain an injunction or protective order
against such requested or required disclosure, the Receiving Party may disclose
only that portion of the Disclosing Party's Confidential Information as it is
required to disclose in order to be in compliance with the law or court order.
Upon the earlier of (i) any termination or expiration of this Agreement
under any circumstances whatsoever (each, an "Agreement Termination"),
including, but not limited to, any termination of this Agreement by IFOX or ADT
for the other party's uncured, material default, (ii) the request of the
Disclosing Party for any reason whatsoever, the Receiving Party will promptly
destroy all Confidential Information of the Disclosing Party then in the
Receiving Party's or any of its Representatives' possession and/or control,
except that IFOX may retain and continue to use any ADT Confidential Information
which is necessary for IFOX to perform the Transition Services requested by ADT
until such time as such Transition Services are completed or terminated;
whereupon IFOX shall destroy all such Confidential Information and otherwise
comply with its obligations under this Section 6.1. Without limiting any of
IFOX's obligations under the preceding sentence, IFOX shall purge all ADT
Confidential Information from the IBM Mainframe and all of IFOX's principal and
back-up computer systems on the date requested by ADT on or after the effective
date of any Agreement Termination (each, a "Termination Date"). No copy,
summary, or extract of the Disclosing Party's Confidential Information shall be
retained by the Receiving Party in any medium whatsoever. An officer of the
Receiving Party shall promptly certify in writing to the Disclosing Party that
such destruction has been completed. Notwithstanding the destruction of the
Disclosing Party's Confidential Information by the Receiving Party, the
Receiving Party will continue to be bound to the Receiving Party's obligations
of confidentiality and other obligations hereunder.
The Parties' respective confidentiality and use restriction obligations
under this Section 6.1 shall expire ten (10) years from the Commencement Date.
This Article 6 is in addition to (and not in replacement of) the
Nondisclosure Agreements. The Nondisclosure Agreements shall remain in full
force and effect and shall continue to apply to and govern all "Confidential
Information" disclosed thereunder in accordance with their terms.
15
Each Party shall be and at all times remain the sole and exclusive owner of
all of its Confidential Information (and all Proprietary Rights therein), and
neither the disclosure of such Confidential Information to, nor the acquisition,
compilation, generation, acquisition, or use of any Confidential Information by,
any other Party will create or grant any express or implied right, title,
license, or interest in or to such Confidential Information to or in the
Receiving Party.
In addition to all of its other confidentiality obligations hereunder, IFOX
shall implement, maintain, and adhere to security procedures to ensure that ADT
Confidential Information is not accessible by any ADT competitor under any
circumstances whatsoever.
SECTION 6.2 PUBLICITY
Except as required by law, neither Infocrossing nor Alicomp may issue any
press release, distribute any advertising or sales literature, or make any
public announcement or disclosure concerning this Agreement or its business
relationship with ADT without ADT's prior written consent, which ADT may
withhold in its sole discretion. If Infocrossing or Alicomp is required by law
(including, but not limited to, federal securities laws) to file or publicly
disclose this Agreement or any portion hereof with the United States Securities
and Exchange Commission or otherwise, then prior to making such filing or
disclosure, Infocrossing and Alicomp shall obtain from ADT a version of this
Agreement identifying all provisions of this Agreement deemed by ADT to
proprietary or confidential and shall seek redaction and maximum protection and
confidential treatment of all such provisions to the fullest extent permitted by
law.
SECTION 6.3 ACCESS
On ADT's request, IFOX shall, upon receiving the notice (if any) required
below, provide unrestricted access (except as otherwise limited by ADT) to ADT's
data files, the Equipment (including, but not limited to, the IBM Mainframe),
ADT Resources, and the portion of the IFOX Outsourcing Center used to perform
the Services or Additional Services, to: ADT's internal and outside auditors;
ADT authorized third parties ("ATP(s)"), including, but not limited to, "Third
Party Vendors" (as defined herein); ADT authorized staff; and other authorized
ADT designees (collectively, "On-Site Access"). IFOX shall provide such On-Site
Access at all times during the Term (i) on three (3) days prior written, verbal,
or electronic notice of any non-emergency request for such On-Site Access made
by ADT, and (ii) immediately upon IFOX's receipt of any emergency request for
On-Site Access made by ADT. Each of ADT's authorized personnel, auditors, Third
Party Vendors, and other ATPs shall be required to comply with IFOX's reasonable
security procedures while engaged in On-Site Access at the IFOX Outsourcing
Center, and each of ADT's
16
authorized Third Party Vendors engaged in two (2) or more consecutive days of
On-Site Access shall be required to enter into a nondisclosure agreement with
IFOX reasonably acceptable to IFOX containing substantially the same terms,
conditions, and protections of IFOX's Confidential Information as Section 6.1.
In providing any On-Site Access, IFOX will comply with all of ADT's
then-prevailing policies and procedures concerning authorization for access to
ADT's data files and systems, as same may be modified by ADT from time-to-time
in its sole discretion. ATP(s) may include, without limitation, successor and
replacement Service providers (collectively, "Successor Service Providers") and
third party vendors and/or suppliers of installation, maintenance, support,
update, and upgrade services, technology, software (including, but not limited
to, Application Software), and hardware, which, in each case have been
authorized by ADT to access ADT's data files (collectively, "Third Party
Vendors"). At no time will any ADT data files be stored or held in a form or
manner not readily accessible to ADT. IFOX shall provide the ADT's Project
Executive, and each ADT representative on the Steering Committee with all
passwords, codes, comments, keys, documentation, and the location of all ADT
data files promptly upon the request of such individual, including, but not
limited to, any Equipment and software keys and such information as to format,
encryption (if any) and any other specification or information necessary for ADT
to retrieve, read, or revise and/or maintain such data files.
ARTICLE 7. INTELLECTUAL PROPERTY
SECTION 7.1 ADT LICENSES
All Application Software (and all Proprietary Rights therein) shall be and
will remain solely the property of ADT or its Affiliates (as applicable). IFOX
acquires no right, title or interest in any Application Software hereunder,
other than the limited rights specifically granted under the "ADT Application
Software License" given below. Subject to the terms and conditions of this
Agreement, ADT hereby grants to IFOX, and IFOX hereby accepts from ADT, a
limited, personal, nonexclusive, nontransferable, royalty-free license (without
right of sublicense or assignment) to (i) install and house the Application
Software on the IBM Mainframe during the Term (and thereafter to the extent
necessary to perform the Transition Services requested by ADT) for ADT's sole
and exclusive access and use, and (ii) copy such Application Software for
archival/disaster recovery purposes during the Term (and thereafter to the
extent necessary to perform the Transition Services requested by ADT), in all
cases, solely to perform Services and Transition Services for ADT during the
Term and thereafter as provided herein and for no other purpose (the "ADT
Application Software License"). Upon any Agreement Termination, the ADT
Application Software License (and all of IFOX's rights thereunder) will
automatically terminate and be deemed revoked effective as of the Termination
Date, and the ADT Application Software License and all rights granted IFOX in
this Section 7.1 shall immediately revert to ADT, except that the ADT
Application Software License shall continue and extend after the Termination
17
Date to the extent necessary to permit IFOX to perform Transition Services
requested by ADT, and upon any completion or termination of such Transition
Services, the ADT Application Software License and all rights granted IFOX in
this Section 7.1 shall automatically and immediately terminate and revert to
ADT.
SECTION 7.2 IFOX LICENSES
Subject to the terms and conditions of this Agreement, upon any Agreement
Termination and payment of all undisputed amounts due hereunder, IFOX agrees, if
requested by ADT and at no additional charge to ADT, to license ADT or a
Successor Service Provider designated by ADT to use, execute, reproduce,
display, perform and modify such software, if any, owned by IFOX as is
reasonably necessary to ADT's continuing operations and to the performance of
similar services by ADT or a Successor Service Provider (collectively, "IFOX
Software"). All such licenses will be non-exclusive, perpetual, irrevocable, and
royalty free and shall be in writing and in form and substance reasonably
satisfactory to IFOX and ADT, and contain customary provisions for the
protection of IFOX's intellectual property consistent with this Agreement. ADT
will be required to pay standard maintenance and support charges for such
software following expiration or termination of this Agreement.
SECTION 7.3 THIRD PARTY INTERESTS
ADT's interest in and obligations with respect to any programming,
materials, or data to be obtained by it from third party vendors, regardless of
whether obtained with the assistance of IFOX, shall be determined in accordance
with the agreements and policies of such vendors.
SECTION 7.4 INFRINGEMENTS
Each Party represents, warrants, and covenants to and with each other Party
that it shall perform its responsibilities (including the Services) under this
Agreement in a manner that does not infringe or constitute an infringement,
violation, or misappropriation of any Proprietary Right of any third party
(each, an "Infringement").
SECTION 7.5 DEVELOPED SOFTWARE
The Proprietary Rights in and to any and all software developed by IFOX for
ADT shall be subject to a separate, written software development agreement
satisfactory in form and substance to the Parties and their legal counsel.
SECTION 7.6 NOTICE OF OTHER SOFTWARE.
IFOX shall promptly notify ADT in writing of all software (other than Third
Party Software) needed or used by IFOX to perform Services for ADT, identifying
all such
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software by name, owner or licensor, and version and release number. The
foregoing software includes all IFOX Software and all software licensed,
purchased, or otherwise procured from third parties, including tools, but
excepting Third Party Software.
ARTICLE 8. CHARGES AND PAYMENT
SECTION 8.1 INVOICING
Infocrossing will invoice ADT monthly in advance on the first business day
of each month for the Charges described in Schedule C, except as otherwise
provided herein. Each invoice will separately state Charges for each category of
Service, as well as Reimbursable Expenses and applicable taxes owed by ADT
hereunder, in such detail as the Schedules require, or ADT may reasonably
request in order to allocate Charges among ADT's business units. Charges for
IFOX's procurement of Third Party Software will be billed upon IFOX's deployment
of such Third Party Software for performance of the Services. Charges for
consulting services or other Additional Services which may from time to time be
authorized by ADT in an executed Change Control Document shall be billed monthly
in arrears unless otherwise agreed in such Change Control Document.
The Charges and Reimbursable Expenses specified on Schedule C constitute
payment in full for the Services (exclusive of any Additional Services). No
other amounts shall be billed to or payable by ADT for the Services.
SECTION 8.2 PAYMENT
Subject to the terms and conditions contained herein, ADT will pay
Infocrossing the Monthly Base Charges described in 2.0 of Schedule C (as may be
amended from time-to-time pursuant to this Agreement) ("Monthly Base Charges")
without invoice no later than the 15th calendar day of the month during which
IFOX provides the Services. In the event that IFOX fails or ceases to provide
any or all of the Services described in Schedule A, other than through the
Change Control Procedures pursuant to this Agreement, ADT's obligation to pay
the Monthly Base Charges for such Services, shall be reduced accordingly, which
reduction shall be in addition to all of ADT's other rights and remedies
hereunder, at law, or in equity for such cessation of Services. Infocrossing
shall invoice ADT for all Reimbursable Expenses on a monthly basis in arrears
after same are incurred and paid by IFOX (except for Third Party Software, which
shall be billed upon its deployment by IFOX for performance of the Services),
and ADT shall pay the amount due hereunder for such Reimbursable Expenses within
thirty (30) days of its receipt of such invoice. This Section 8.2 shall survive
expiration or termination of this Agreement with respect to any Charges due and
payable by ADT hereunder at the time of such expiration or termination.
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Alicomp hereby irrevocably authorizes ADT to pay all Charges, Reimbursable
Expenses, and any other amounts due hereunder directly to Infocrossing, and each
such payment by ADT to Infocrossing shall also constitute ADT's payment of such
amounts to Alicomp. Infocrossing shall be solely and exclusively responsible for
disbursing to Alicomp any and all amounts paid by ADT to Infocrossing which may
be due Alicomp for any Services (or otherwise), and Alicomp agrees to look
solely and exclusively to Infocrossing for payment of such amounts without any
recourse against or to ADT whatsoever.
SECTION 8.3 CURRENCY
All Charges and Reimbursable Expenses will be invoiced and paid in U.S.
dollars.
SECTION 8.4 INTEREST
Amounts not paid when due will bear interest from the date payment is due
until the date payment is made at a rate equal to the lesser of (a) one percent
(1%) per month or (b) the maximum amount allowed by law.
SECTION 8.5 PRORATION
All periodic Charges (including the Monthly Base Charges but excluding
Charges based upon actual usage or consumption of Services) are to be computed
on a monthly basis and will be prorated for any partial month, unless
specifically stated otherwise in this Agreement. No Charges or Reimbursable
Expenses shall accrue or be due from ADT for any period after any Termination
Date, except for any amounts due for "Transition Services" pursuant to Section
11.7, which amounts shall be billed and paid (i) as "Additional Services" and
(ii) in lieu of any Monthly Base Charges.
SECTION 8.6 COST OF LIVING ADJUSTMENT
Monthly Base Charges will be subject to an annual cost of living adjustment
after completion of the first Contract Year as provided in 4.0 of Schedule C.
Within sixty (60) days after the end of any Contract Year, IFOX and ADT will
determine the adjustment, if any. All such adjustments will be based upon the
Consumer Price Index - All urban Consumers, U.S. City Average, All Items, Not
Seasonally Adjusted Base Period, 1982-84 = 100 ("CPI"), published monthly by the
Bureau of Labor Statistics of the U.S. Department of Labor, or any successor
index published by the Bureau of Labor Statistics or a successor agency of the
U.S. Government. If the Bureau of Labor Statistics redefines the base year, IFOX
and ADT will adjust their calculations by using an appropriate conversion
formula. Monthly Base Charges for the new Contract Year will be adjusted by a
fraction, the numerator of which is the CPI for the calendar month immediately
before the commencement of the prior Contract Year and the denominator is the
CPI for the calendar month of the prior Contract Year. Notwithstanding anything
to the contrary, Monthly Base
20
Charges for Services in a subsequent Contract Year will not be lower than
Monthly Base Charges for Services in the preceding Contract Year, as a result of
the application of this Section 8.6.
SECTION 8.7 Intentionally Deleted.
SECTION 8.8 TAXES
ADT will pay all taxes, assessments, fees and other governmental charges of
any kind (including, without limitation, sales, use, or excise taxes) levied by
any government authority directly upon any amount paid by ADT to IFOX hereunder
and any transaction taxes levied by any government authority directly upon the
value of the Services provided by IFOX to ADT hereunder, which are, in each
case, required to be collected and remitted by IFOX to such government
authorities under applicable law (collectively, "Taxes"). No Party will have any
obligation for (without limitation) (i) any other Party's value added,
franchise, or alternative minimum taxes, or (ii) any tax, assessment, fee, or
government charge of any kind imposed or based upon any other Party's: real,
personal or intangible property; assets; gross receipts; gross income; net
income; net worth; capital; or presence or doing business in any jurisdiction.
SECTION 8.9 EXPENSES
ADT will pay to or reimburse IFOX for all Reimbursable Expenses designated
in Schedule C as and when invoiced in the manner provided above. No amount shall
be a Reimbursable Expense hereunder unless it is (i) specifically designated as
such in the Agreement, and (ii) authorized by ADT in writing in advance before
it is incurred, unless specifically excluded from such pre-authorization
requirement by Schedule C. All other expenditures by IFOX shall be on its
account and at its sole cost and expense.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
SECTION 9.1 MUTUAL REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other as follows on the Commencement
Date:
a. it is a corporation duly incorporated and organized and validly
existing under the laws of its jurisdiction of incorporation;
21
b. it has all necessary corporate power to own and hold its property and
assets and to carry on its business as presently conducted and it is
duly and properly qualified to carry on its business in those
jurisdictions where qualification is necessary for the conduct of its
business;
c. it has all necessary corporate power to enter into this Agreement and
to perform its obligations hereunder and the execution and delivery of
this Agreement and the completion of the transactions contemplated in
this Agreement by it have been duly authorized by all necessary
corporate actions on its part;
d. this Agreement constitutes its legal, valid and binding obligation
enforceable against it in accordance with its terms; and
e. execution and performance of this Agreement by it will not breach the
terms of any law, regulation, judgment, instrument, agreement, charter
or by-law provision binding or applicable to it or create
circumstances that would, with notice or lapse of time, or both,
constitute breach.
SECTION 9.2 ADT REPRESENTATIONS AND WARRANTIES
ADT represents and warrants to IFOX that:
a. ADT's use of any Application Software on the Commencement Date does
not violate any copyright, patent or other Proprietary Right of any
third party.
b. The ADT Application Software License (including, but not limited to,
housing of the Application Software on the IBM Mainframe in accordance
therewith) for ADT's access and use in conjunction with the Services
as contemplated hereunder does not violate any (i) Proprietary Right
of any third party in such Applications Software, or (ii) license
agreement between ADT and a third party for such Applications
Software.
SECTION 9.3 IFOX REPRESENTATIONS AND WARRANTIES
IFOX represents and warrants to ADT as follows:
a. To the best of IFOX's knowledge, IFOX's use of the Third Party
Software and its performance of the Services does not and shall not
violate, infringe upon, or misappropriate any third party's
Proprietary Rights.
b. Subject to the limitations and exclusions described by this Agreement
and the accompanying Schedules, IFOX warrants that the Services will
be performed in a professional manner, consistent with good practice
in its industry. If ADT data contains any errors caused by malfunction
of IFOX's Equipment or software, or
22
by operational errors of IFOX or its personnel or subcontractors, or
by any other failure by IFOX to properly perform the Services, IFOX
will, without additional charge to ADT, promptly rerun, revise or
supplement such effected data, as ADT may reasonably request to
correct such errors to ADT's satisfaction ("Data Reprocessing"). ADT
will give IFOX prompt notice, with reasonable particulars, of any
claims under this Article 9, and Data Reprocessing shall be in
addition and without prejudice to ADT's other rights and remedies
under this Agreement, at law, or in equity.
c. IFOX will perform and provide all Services: (i) using only properly
qualified, skilled, competent, experienced, and trained personnel, and
(ii) in material compliance with all federal, state, and local
statutes, laws, regulations, ordinances, and other legal requirements.
d. All amounts paid by ADT for Third Party Software shall accrue solely
for the specific Third Party Software licenses used by IFOX to provide
Services for ADT hereunder.
SECTION 9.4 DISCLAIMERS
a. IFOX does not warrant the accuracy of any advice, report, data or
other product delivered to ADT which is produced with or from data or
software provided by ADT to the extent that the accuracy is caused by
an error in such data or software not caused by IFOX.
b. Subject to IFOX's obligation to satisfy the Service Levels and provide
the support Services hereunder, IFOX does not assure uninterrupted or
error-free (a) operation of any computer, network or other computer
system or (b) provision of any service.
c. IFOX makes no representation or warranty regarding the accuracy and
adequacy of ADT Software.
d. THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THERE ARE NO OTHER EXPRESS WARRANTIES BY ANY PARTY AND
THERE ARE NO IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
23
e. If IFOX transfers to ADT any items of hardware or assigns licenses for
Third Party Software to ADT (collectively, "Third Party Materials"),
IFOX will, for no additional charge to ADT, concurrently assign and
pass through to ADT, without modification, all of the manufacturer's,
licensor's, or supplier's express and implied warranties (if any) and
indemnitees on such Third Party Materials, to the extent that IFOX is
contractually able to do so under such warranties and indemnitees
(collectively, "Warranty Assignments"). Following any such Warranty
Assignment for any Third Party Materials, the manufacturer's or
supplier's warranties and indemnitees for such Third Party Materials
shall be ADT's exclusive remedies with respect to such Third Party
Materials for all defects and occurrences arising after such Warranty
Assignment. IFOX MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS
WITH RESPECT TO THIRD PARTY MATERIALS FOLLOWING SUCH WARRANTY
ASSIGNMENT. IFOX DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS REGARDING SUCH THIRD PARTY MATERIALS, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
ARTICLE 10. REMEDIES
SECTION 10.1 INSURANCE
Throughout the Term, Infocrossing, Alicomp, and each IFOX Subcontractor
that provides or performs any of the Services shall maintain and keep in force,
at its own expense, the following minimum insurance coverages and minimum limits
(which may be provided under an excess umbrella policy that "follows form" with
the underlying policy) covering the Services (collectively, "Insurance
Policies"):
(a) workers' compensation insurance, with statutory limits as required by
the various laws and regulations applicable to the employees of IFOX and any
IFOX Subcontractor that provides or performs any of the Services;
(b) employer's liability insurance, for employee bodily injuries and
deaths, with a limit of $1 million for each accident;
(c) comprehensive or commercial general liability insurance, covering
claims for bodily injury, death and property damage, including premises and
operations, independent contractors, products, services and completed operations
(as applicable to the Services), personal injury, contractual, and broad-form
property damage liability coverages, with limits of $10 million per occurrence
(the "CGL Policy"); and
24
(d) errors and omissions insurance covering the Services, with a limit of
$5 million per occurrence.
All Insurance Policies shall: (i) provide coverage for all Services and
operations of IFOX hereunder; (ii) be primary without right of contribution from
any insurance carried by ADT; (iii) be issued by duly qualified insurance
carriers who are reasonably satisfactory to ADT; and (iv) require that ADT be
given not less than thirty (30) days prior written notice of cancellation,
termination, non-renewal, or any material changes to the coverage provided
thereunder. ADT shall be named as an additional insured on the CGL Policy. Prior
to commencement of any Services and throughout the Term, IFOX shall deliver
Certificates of Insurance and additional insured endorsements to ADT for the
Insurance Policies evidencing compliance with this Section 10.1.
SECTION 10.2 Intentionally Deleted.
SECTION 10.3 NO CONSEQUENTIAL OR PUNITIVE DAMAGES
In no circumstances (other than those excluded below) will IFOX be
liable to ADT (or ADT be liable to IFOX) in contract, tort, for breach of
warranty or otherwise, for any special, consequential (including, but not
limited to, loss of interest, profit, or revenue), exemplary or punitive
damages (collectively, "Consequential Damages") arising from any act or
omission of IFOX or ADT, or its Affiliates, officers, agents and employees,
or subcontractors in connection with this Agreement even if IFOX or ADT has
been advised of the possibility of such Consequential Damages (the
"Consequential Damage Waiver"). The Consequential Damage Waiver shall not
apply to any Consequential Damages that (collectively, "Excluded Causes"): *
SECTION 10.4 LOSS OF DATA
IFOX will maintain backup copies of ADT's data in accordance with Schedule
A, but IFOX will in no circumstances have any liability for the loss or
destruction of, or for corruption or disclosure of, any of the ADT's data caused
by ADT's errors, the acts or omissions of third parties (excluding
Subcontractors retained by IFOX to perform any of the Services), circumstances
constituting a Force Majeure Event or circumstances arising from transmission
over public telecommunications lines or transportation via commercial carriers
in compliance with the security requirements hereunder.
25
* Confidential portion has been omitted and filed separately with the
Commission.
SECTION 10.5 LIMITED REMEDY
Except for monetary liability arising out of the Excluded Causes and
restitution of any Charges and Reimbursable Expenses paid by ADT, IFOX's
total monetary liability to ADT (in contract, tort, indemnity or otherwise)
for any acts or omissions arising from or relating to the performance of this
Agreement will be limited to payment of actual damages, up to an aggregate
maximum of (i) * or (ii) $*, whichever is greater. IFOX will in no
circumstances have any other financial liability to ADT whatsoever in
connection with this Agreement except to the extent otherwise provided in
this Agreement. ADT agrees that the provisions of this Article limiting its
remedies and its damages are reasonable under the circumstances existing on
the date of this Agreement.
Except for monetary liability arising out of the Excluded Causes and
payment of any past-due Charges and Reimbursable Expenses, ADT's total monetary
liability to IFOX (in contract, tort, indemnity or otherwise) for any acts or
omissions arising from or relating to the performance of this Agreement will be
limited to payment of actual damages. ADT will in no circumstances have any
other financial liability to IFOX whatsoever in connection with this Agreement
except to the extent otherwise provided in this Agreement. IFOX agrees that the
provisions of this Article limiting its remedies and its damages are reasonable
under the circumstances existing on the date of this Agreement.
SECTION 10.6 ADT'S INDEMNITY
Subject to terms and conditions of this Agreement, ADT agrees to indemnify,
defend and hold the IFOX Indemnitees harmless from and against any and all
costs, losses, liabilities, damages, causes of action, claims and expenses
(including without limitation, interest, penalties reasonable attorneys' fees)
and all reasonable amounts paid in the investigation, defense or settlement of
any or all of the foregoing ("Claims") that are asserted by unaffiliated third
parties, to the extent such Claims result from:
a. breaches by ADT of any of ADT's material representations, warranties,
covenants or agreements hereunder;
b. violations by ADT of any contractual or legal obligation owed by ADT
to the owner, lessor or licensor of any Application Software;
c. breaches by ADT of any agreement with any third party that relates to
the Services; or
d. negligence, willful misconduct or violations of law by any of the ADT
Indemnitees in connection with this Agreement.
26
* Confidential portion has been omitted and filed separately with the
Commission.
SECTION 10.7 IFOX'S INDEMNITY
Subject to the terms and conditions of this Agreement, IFOX agrees to
indemnify, defend and hold the ADT Indemnitees harmless from and against any and
all Claims asserted by unaffiliated third parties, to the extent that such
Claims result from:
a. breaches by IFOX of any of IFOX's material representations,
warranties, covenants or agreements hereunder;
b. violations by IFOX of any contractual or legal obligation owed by IFOX
to the owner, lessor or licensor of any real, personal or intellectual
property;
c. breaches by IFOX of any agreement with any third party that relates to
the Services;
d. negligence, willful misconduct or violations of law by any of the IFOX
Indemnitees in connection with this Agreement, regardless of the
materiality of such law, or the truth or accuracy of IFOX's
representation and warranty in Section 9.3c;
e. any claim that the Services or ADT's access or use of the Services
violates, misappropriates, or infringes upon the Proprietary Rights of
any third party, regardless of IFOX's knowledge (or lack of knowledge)
of same or the truth or accuracy of its representation and warranty in
Section 9.3a; or
f. any claim by any third party under any Third Party Contract of any
nature whatsoever, including, but not limited to, payment of any
amounts due thereunder.
SECTION 10.8 INDEMNIFICATION GENERALLY
a. Each indemnitor's liability to pay or reimburse amounts owed with
respect to personal injury, death or property damage attributable to
the indemnitor's negligence, willful misconduct or violations of law
will be to the extent of the indemnitor's proportional contribution to
such injury, death, loss or damage. No indemnitor shall have any
obligation to defend, indemnify, reimburse, or hold any indemnitee
(including any other Party hereto) harmless hereunder for or from any
Claim to the extent same arises out of the negligence, willful
misconduct, violation of law, or breach of this Agreement by any other
Party or any of its indemnitees.
b. In the event that any Party will be obligated to indemnify another
Party pursuant to this Agreement, the indemnitor, will, upon payment
of such indemnity in full,
27
be subrogated to all rights, claims and defenses of the indemnitee
covered by such payment.
c. Each indemnitee agrees to give the indemnitor prompt written notice,
with full known particulars, of all Claims for which such indemnitee
is entitled to indemnification hereunder ("Covered Claim(s)") upon
becoming aware of same and to reasonably cooperate, at the
indemnitor's expense, in the investigation and defense of such Covered
Claims; provided, however, that any delay or failure by the indemnitee
in performing any of its aforementioned obligations shall discharge
the indemnitor from its indemnification obligations hereunder only to
the extent (if any) that such indemnitor is prejudiced by such delay
or failure. After receiving notice, the indemnitor will defend any
Covered Claim by counsel reasonably satisfactory to the indemnitee
(but the indemnitor will have no obligation to provide separate
counsel for the indemnitee, except to the extent that conflicts or
potential conflicts between the Parties' interests may require). The
indemnitee may, at its own expense, participate in the investigation
and defense of such Covered Claim by separate counsel.
d. The indemnitor shall have sole control over the defense and settlement
of each Covered Claim, except that the indemnitor shall not settle any
Covered Claim without first obtaining the indemnitee's prior written
consent, unless: (i) such settlement does not contain any finding or
admission of any violation of law or any fault on the part of the
indemnitee, and has no effect on any other claims that may be made by
the Indemnitee against the third party bringing the Covered Claim, and
(ii) the sole relief provided in such settlement is monetary damages
that are paid in full by the indemnitor. Notwithstanding the
foregoing, if the indemnitor fails to retain counsel or otherwise
defend any Covered Claim after having received written notification of
same from the indemnitee as required above (a "Defense Failure"), the
indemnitee may, if necessary to prevent a default from being entered
against it on such Covered Claim, in the indemnitee's sole discretion
and without prior notice to or approval from indemnitor, defend or
settle such Covered Claim at the indemnitor's sole cost and expense.
e. No indemnitor will have any obligation (except with respect to Defense
Failures) to pay or reimburse any amounts paid in connection with any
settlement or compromise of any Covered Claim reached without the
prior written consent of the indemnifying Party, which will not be
unreasonably withheld or delayed in the case of monetary Covered
Claims. An indemnifying Party may withhold consent to settlement of
Covered Claims of infringement affecting its Proprietary Rights in its
sole discretion and may, also in its sole discretion (subject to
Section 10.8(f) below), procure a license, develop or obtain a
non-infringing substitute, or settle or compromise the Covered Claim.
f. If IFOX is enjoined from performing any Services to ADT, or ADT is
enjoined from accessing or using any Services provided by IFOX, on the
grounds that
28
same infringes upon, misappropriates, or violates any third party's
Proprietary Rights (each, an "Infringement"), then, in addition to the
indemnity provided therefor in this Article 10, IFOX shall, at its
sole cost and expense (i) replace or modify such Services so that they
are free from any Infringement, without degrading the functionality,
performance, utility, or compatibility of such Services, or (ii)
procure for ADT the right to continue using and receiving the Services
pursuant to (and as authorized by) this Agreement, free from any
Infringement.
SECTION 10.9 CONTINUED PERFORMANCE
Except where clearly prevented by the issue in dispute, both IFOX and ADT
agree to continue performing their respective duties, obligations and
responsibilities under this Agreement while the dispute is being resolved in
accordance with this Article, unless and until such obligations are lawfully
terminated or expire in accordance with the provisions hereof.
SECTION 10.10 MANAGEMENT REVIEW OF DISPUTES
Unless urgent circumstances require either IFOX or ADT to seek provisional
relief from the courts or suit or proceedings must be commenced immediately to
avoid the lapse of any contractual or statutory Statute of Limitations, neither
IFOX nor ADT may commence any legal proceedings concerning any dispute without
first submitting that dispute (a) to the IFOX Account Executive and the ADT
Project Executive, then, if they are unable to resolve the matter within thirty
(30) days, (b) to the Steering Committee, and, if the Steering Committee is
unable to resolve the matter within the subsequent thirty (30) days, (c) to one
executive designated by senior management for each of IFOX and ADT, neither of
such executives is directly engaged in day-to-day oversight or management of the
Services, and both of whom will consult concerning possible resolution of the
dispute. Proposals and counterproposals made by any party during consultations
of the Steering Committee or the two executives will be privileged and
confidential offers of compromise as interpreted under applicable law.
SECTION 10.11 APPLICABLE LAW
All questions concerning the validity, interpretation, performance,
termination or breach of this contract will be governed by and decided in
accordance with the laws of New York (excluding laws and principles relating to
the conflicts of law) and applicable federal laws.
SECTION 10.12 Intentionally Deleted.
SECTION 10.13 Intentionally Deleted
SECTION 10.14 Intentionally Deleted
29
SECTION 10.15 Intentionally Deleted.
SECTION 10.16 Intentionally Deleted.
SECTION 10.17 JURISDICTION AND VENUE
The Parties irrevocably consent to the non-exclusive jurisdiction of any
state or federal court located within New York and irrevocably agree that all
proceedings relating to this Agreement may be adjudicated in those courts. Each
Party waives any objection which it may have to the court's jurisdiction or to
venue.
SECTION 10.18 FEES AND COSTS; REMEDIES
In any legal action brought in connection with this Agreement, the
prevailing Party (IFOX or ADT, as the case may be) will be entitled to recover
from the other Party (IFOX or ADT, as applicable), in addition to its damages
(subject to limitations stated elsewhere in this Agreement), its reasonable
attorneys' fees, expert witness fees, and other ordinary and necessary costs of
litigation, as determined by the court. Such costs include, without limitation,
costs of any legal proceedings brought to enforce a judgment or decree. Except
as specifically provided otherwise herein, each Party's respective rights and
remedies under this Agreement are cumulative with, and may exercised without
prejudice to, its other rights and remedies under this Agreement, at law, or in
equity.
SECTION 10.19 EQUITABLE REMEDIES
The Parties agree that any breach or threatened breach of any provision of
this Agreement concerning Confidential Information, Proprietary Rights, ADT's
right of access under Section 6.3, IFOX's performance of Transition Services
under Section 11.7, or Proprietary Rights, will cause the aggrieved,
non-breaching Party irreparable harm for which money damages would be an
inadequate remedy. Accordingly, the aggrieved, non-breaching Party shall be
entitled to have those provisions specifically enforced by the preliminary or
the permanent, mandatory or prohibitory injunction or other order of a court of
competent jurisdiction, in addition and without prejudice to such aggrieved,
non-breaching Party's legal rights and remedies, including its right to recover
monetary damages for such breach.
ARTICLE 11. TERM AND TERMINATION
30
SECTION 11.1 TERM
The term of this Agreement will commence on the Commencement Date and will
end (unless renewed, renegotiated or terminated in accordance with this Article)
on the fourth anniversary of the Commencement Date. Notwithstanding the
foregoing, after the second anniversary of the Commencement Date, the Initial
Term may be increased to the Renegotiated Initial Term on the terms and
conditions as may be agreed by all of the Parties in their sole discretion in a
written amendment to this Agreement. .
SECTION 11.2 EXTENSIONS
This Agreement shall automatically renew on an annual basis beyond the
Initial Term or the Renegotiated Initial Term, as the case may be, for up to
three (3) successive terms (each of which shall be referred to as a "Renewal
Term") of one (1) Contract Year each, unless ADT gives IFOX written notice of
its election not to renew for the next Contract Year (the "Non-renewal Notice")
at least one hundred eighty (180) days before this Agreement or an extension
would otherwise expire (each, an "Expiration Date"), which Non-renewal Notice
shall be revocable by ADT at any time up to ninety (90) days prior to the
Expiration Date. ADT will have no power to renew if, at the time of its
election, or expiration of the then current term, (a) there then exists any
material, uncured default by ADT, (b) any circumstance exists that would, with
notice or lapse of time, or both, constitute material default by ADT, including,
without limitation, nonpayment of amounts due hereunder or (c) ADT has committed
two or more material breaches during the entire Term of this Agreement. If, at
the time of ADT's renewal election, or commencement of any Renewal Term, any
legal proceedings are pending concerning alleged material defaults by ADT, IFOX
will continue to provide Services until the proceedings conclude, provided that
ADT continues to pay all undisputed Charges and Reimbursable Expenses in a
timely manner. If ADT is finally adjudicated to have committed a material
default under Section 11.3, then IFOX may, at its option, give notice of
termination for ADT's default, terminate this Agreement and cease its delivery
of Services in an orderly manner pursuant to Section 11.7 of this Agreement.
SECTION 11.3 TERMINATION FOR CAUSE
Either ADT, on the one hand, or IFOX, on the other hand, may terminate this
Agreement effective immediately upon giving written notice of termination to the
other Party (IFOX or ADT, as applicable) if such other Party:
a. Fails to pay any material, undisputed amount due hereunder within
* days after its receipt of written notice of such default
from the non-breaching Party;
31
* Confidential portion has been omitted and filed separately with the
Commission.
b. Fails to substantially cure any material, nonmonetary breach of any
of its obligations hereunder within * days after its receipt of
written notice from the non-breaching Party, describing such breach in
reasonable detail; or
c. Files, or has filed against it any petition or action under any
bankruptcy, reorganization, liquidation, insolvency, receivership,
arrangement or similar law, for the relief of debtors if such petition
or action is not dismissed within ninety (90) days after filing; makes
an assignment for the benefit of creditors; becomes insolvent; or
admits in writing its general inability to pay its debts as they
become due. (If ADT is the defaulting party under this subparagraph,
IFOX will not terminate this Agreement pursuant to this subparagraph
if ADT continues to pay all Charges and other sums as required under
this Agreement. If IFOX is the defaulting party under this
subparagraph, ADT will not terminate the Agreement pursuant to this
subparagraph if IFOX continues to provide the Services required
hereunder.)
SECTION 11.4 OTHER TERMINATION EVENTS
ADT may terminate this Agreement effective immediately upon written notice
to IFOX after the occurrence of any of the following events ("Termination
Event(s)"):
a. A Force Majeure Event or IFOX default under this Agreement prevents or
impairs IFOX's performance of any Services in any material respect for
* days or more, regardless of any right to cure same hereunder; or
b. IFOX fails to meet Service Levels for * days or more due to any
Third Party Software Defect or Force Majeure Event, notwithstanding
anything in this Agreement to the contrary, and despite IFOX's
performance of its maintenance or support Services hereunder with
respect thereto.
SECTION 11.5 TERMINATION FOR DEFAULT
Solely if ADT terminates this Agreement for convenience pursuant to Section
11.6 below, ADT agrees to pay IFOX an amount equal to the Convenience
Termination Fee on the Termination Date, as liquidated damages and not a
penalty, in addition to amounts owed for Services rendered through the
Termination Date, as IFOX's sole and exclusive remedy against ADT (and ADT's
sole and exclusive liability to IFOX) for ADT's termination of this Agreement
for convenience. No Convenience Termination Fee shall accrue or be due hereunder
for any termination for default pursuant to Section 11.3 or for any Termination
Event pursuant to Section 11.4. ADT agrees that IFOX's recovery of Profits and
Costs, and other direct damages sustained by IFOX from ADT's default shall not
be excluded by Section 10.3 or limited by Section 10.5. IFOX agrees that ADT's
recovery of costs, expenses and direct damages incurred by ADT in transitioning
off of IFOX's systems as a result of IFOX's default shall not be excluded by
Section 10.3 or limited by Section 10.5.
32
* Confidential portion has been omitted and filed separately with the
Commission.
SECTION 11.6 TERMINATION FOR CONVENIENCE
ADT may terminate this Agreement effective at any time on or after April 1,
2004, in whole but not in part, without cause for its convenience, provided that
IFOX has received written notice of such termination at least one hundred eighty
(180) days prior to April 1, 2004 or such later Termination Date, as applicable.
In addition to written notice to IFOX, any termination pursuant to this Section
11.6 will be effective only if IFOX receives payment of all material, undisputed
amounts then invoiced by IFOX and due hereunder and the Convenience Termination
Fee in the amount specified in Section 7.0 of Schedule C for and by the
Termination Date. ADT acknowledges and agrees that the Convenience Termination
Fee represents fair and equitable compensation to IFOX in consideration of
IFOX's agreement to provide the Services during the Term of this Agreement. ADT
agrees that such Convenience Termination Fee would not represent a penalty to
ADT and expressly waives any such claim.
SECTION 11.7 TRANSITION SERVICES
a. Upon expiration or any termination of this Agreement, IFOX will
cooperate with ADT and its Successor Service Provider and provide ADT
and its Successor Service Provider with such reasonable assistance as
may be requested by ADT to assure the orderly transfer of the
services, functions, responsibilities, tasks, and operations
comprising the Services, and the data and systems to ADT and/or such
Successor Service Provider and minimize any disruption or interruption
of Services (collectively, "Transition Services"). IFOX's Transition
Services will include, without limitation, providing ADT, its agents,
contractors and consultants (including Successor Service Providers)
reasonable access to the IFOX Outsourcing Center, IBM Mainframe, Third
Party Software, ADT data, and all systems and data and other ADT
Resources then being used by IFOX to provide the Services and to
responsible IFOX personnel, agents, and Subcontractors engaged in the
performance of this Agreement. Transition Services shall also include
assisting and cooperating with ADT and its Successor Service Provider
(i) in the migration of ADT data from the IBM Mainframe to ADT's or
such Successor Service Provider's designated computer system and (ii)
with the preparation and implementation of ADT's or Successor Service
Provider's transition plan. Transition Services shall be provided
beginning on the date first requested by ADT and shall continue until
completed or ADT's earlier termination thereof by transmitting written
notice thereof to IFOX.
b. Upon termination or expiration of this Agreement and payment of all
material, undisputed amounts then due hereunder, IFOX will, as part of
the Transition Services: (1) provide transition support and knowledge
transfer to ADT and its Successor Service Provider pursuant to ADT's
request, and (2) transition ADT to its chosen computer operating
environment. If requested by ADT, IFOX will cooperate with ADT or a
Successor Services Provider to secure licenses or
33
sublicenses of Third Party Software in accordance with the agreements
and policies of the owners of such Third Party Software.
c. ADT will pay IFOX for Transition Services rendered after expiration or
termination (including, but not limited to, termination for default
under Section 11.5) of this Agreement at IFOX's then prevailing rates
for Additional Services in Section 6.0 of Schedule C (or if no rate is
specified therein, at Mutually Agreed Upon Rates) and pay to IFOX an
amount equal to the Reimbursable Expenses incurred by IFOX in order to
provide the Transition Services. Upon any expiration or termination of
this Agreement, ADT will pay all Reimbursable Expenses incurred by
IFOX in the nature of transfer and similar charges payable to third
parties pre-approved by ADT as Subcontractors in connection with the
legal, physical or electronic transfer of ADT's data and the
Application Software specifically requested by ADT. IFOX's obligation
to perform Transition Services and ADT's obligations to pay for
Transition Services and related expenses will be absolute and
unconditional, without regard to any disputes or claims then pending
between IFOX and ADT.
ARTICLE 12. GENERAL PROVISIONS
SECTION 12.1 BINDING NATURE AND ASSIGNMENT
This Agreement binds the Parties and their respective successors and
permitted assigns. Unless otherwise agreed to by the Parties in a written
amendment hereto, no Party may assign or otherwise transfer this Agreement
without the prior written consent of the other Parties, which will not be
unreasonably withheld or delayed, and any attempt to transfer or assign this
Agreement without the prior written consent of the other Parties shall be null
and void.
SECTION 12.2 NOTICES
All notices required or contemplated hereunder will be given in writing by
prepaid certified mail, personal delivery (including express courier service
with proof of delivery), or by telex, facsimile or other electronic means with
proof of delivery (if subsequently confirmed by certified mail or personal
delivery) at the addresses and fax numbers listed below. Notices will be
effective upon actual receipt or denial of delivery (as shown on the delivery
receipt) by IFOX and ADT at the following addresses:
For IFOX:
Infocrossing, Inc.
0 Xxxxxxxx Xxxxxxx Xxxxxx
00
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
With copies to:
Alicomp, a division of Alicare, Inc.
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
For ADT:
Vice President, Information Technology
ADT Security Services, Inc.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
With a copy to:
General Counsel
ADT Security Services, Inc.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
SECTION 12.3 ENTIRE AGREEMENT, AMENDMENT, WAIVER
This Agreement, including all attached Schedules (which are incorporated
herein by this reference) constitutes the entire and final agreement between
IFOX and ADT with respect to the Services, and supersedes any prior or
contemporaneous understandings, agreements or representations regarding the
subject matters contained herein. No supplement, modification, amendment or
waiver of this Agreement will be binding unless executed in writing by all
Parties. No waiver of any of the provisions of this Agreement will constitute a
waiver of any other provision (whether or not similar) nor will such waiver
constitute a continuing waiver unless otherwise expressly provided. In the event
of a conflict between this Agreement and any of the attached Schedules, this
Agreement shall control.
SECTION 12.4 FURTHER ASSURANCES
IFOX and ADT will, with reasonable diligence, do all reasonable things and
provide all reasonable assurances as may be required to complete the
transactions contemplated by
35
this Agreement, and each Party will provide such further documents or
instruments required by any other Party as may be reasonably necessary or
desirable to give effect to this Agreement and to carry out its provisions.
SECTION 12.5 SEVERABILITY
Any provision in this Agreement which is prohibited or unenforceable in any
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions or
affecting the validity or enforceability of such provisions in any other
jurisdiction.
SECTION 12.6 HEADINGS
The division of this Agreement into Articles, Sections, subsections and
Schedules and the division of Schedules of this Agreement into Sections and
subsections and the insertion of headings are for convenience of reference only
and will not affect its construction or interpretation. Any reference to an
Article or Section herein shall be deemed to include all Sections and
subsections contained therein.
SECTION 12.7 TIME
In this Agreement, unless otherwise specifically provided, in the
computation of a period of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding." In the event that any action to be taken under this
Agreement falls on a day which is not a business day, then such action will be
taken on the next succeeding business day.
SECTION 12.8 SURVIVAL
Notwithstanding any expiration or termination of this Agreement, Articles
6, 7, 9, and 12 and Sections 2.10, 2.11, 10.3, 10.5 through 10.8 (inclusive),
10.12 through 10.19 (inclusive), 11.5, and 11.7 shall survive any Agreement
Termination, as shall those rights and obligations which are expressly stated to
or by their very nature would survive this Agreement.
SECTION 12.9 INDEPENDENT CONTRACTORS
IFOX, on the one hand, and ADT, on the other hand, are independent
contractors and this Agreement will not be construed to create any other
relationship between IFOX, on the one hand, and ADT, on the other hand, as
principal and agent, joint venturers, partners, employer-employee, or otherwise.
Neither IFOX, on the one hand, nor ADT, on the other hand, is authorized to
enter into agreements for or on behalf of the other Party, collect any
obligation due or owed to the other Party, accept service of process for the
other Party, or
36
bind the other Party in any manner whatever. An employee of IFOX, on the one
hand, or ADT, on the other hand, will not be deemed to be an employee of the
other Party for any reason. In particular, and without limiting the generality
of the foregoing, IFOX assumes no obligation or responsibility for ADT's
business or operations, other than performance of its obligations under this
Agreement, and vice-versa.
SECTION 12.10 LIMITATION PERIOD
Neither ADT nor IFOX may bring an action, regardless of form, arising out
of this Agreement more than two (2) years after the claim arose, or became
apparent to the claimant, or should have become apparent in the exercise of
reasonable diligence, whichever is the later, provided that causes of action
that were not apparent and could not have been discovered with reasonable
diligence will be subject to such statutes of limitation and tolling as may
otherwise apply. The limitation period set forth above shall be tolled during
the period during which the Parties are engaged in the dispute resolution
procedures set forth in this Agreement.
SECTION 12.11 NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended to confer on rights, benefits,
remedies, obligations or liabilities on any person (including, without
limitation, any employees of the Parties) other than the Parties or their
respective successors or permitted assigns.
SECTION 12.12 COUNTERPARTS
This Agreement, including the Schedules, may be executed in one or more
counterparts, each of which will be deemed an original but all of which taken
together will constitute one and the same instrument.
SECTION 12.13 DUTY TO ACT REASONABLY
Whenever this Agreement requires or contemplates any action, consent or
approval, the Parties will act reasonably and in good faith and (unless this
Agreement expressly allows exercise of a Party's sole, or sole and absolute
discretion) may not unreasonably withhold or delay such action, consent or
approval.
SECTION 12.14 JOINT AND SEVERAL LIABILITY
Infocrossing and Alicomp shall both be directly and jointly and severally
liable for all of the obligations, undertakings, liabilities, representations,
warranties, and covenants of IFOX hereunder, and any act, error, or omission of
Infocrossing or Alicomp shall bind the other.
SECTION 12.15 FAXED COPIES
37
Signed, faxed counterparts of this Agreement shall have the same legal
force and effect as signed original counterparts hereto.
[SEPARATE SIGNATORY PAGE FOLLOWS]
38
IN WITNESS WHEREOF the Parties have executed this Master Services Agreement
as of the day and year first above written.
INFOCROSSING, INC., ADT SECURITY SERVICES, INC.
jointly and severally, ("ADT")
("Infocrossing/IFOX")
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXX XXXXXXXXX
---------------------------- ----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx XxxXxxxxx
-------------------------- --------------------------
Title: Chief Operating Officer Title: SVP-CFO
------------------------- -------------------------
ALICOMP, A DIVISION OF ALICARE, INC.,
jointly and severally
("Alicomp/IFOX")
By: /s/ XXXXXX XXXXX
----------------------------
Name: Xxxxxx Xxxxx
--------------------------
Title: President of Alicomp
-------------------------
39
EXECUTION COPY
ADT SECURITY SERVICES, INC.
MASTER SERVICES AGREEMENT
SCHEDULE A
TABLE OF CONTENTS
SCHEDULE A - DESCRIPTION OF SERVICES
1.0 DEFINITIONS....................................................................................................2
2.0 OVERVIEW.......................................................................................................3
3.0 IFOX SERVICES .................................................................................................4
3.1 KEY IFOX PERSONNEL.........................................................................................4
3.2 ACCOUNT MANAGEMENT.........................................................................................4
3.3 OUTSOURCING CENTER SERVICES................................................................................5
3.3.1 OUTSOURCING CENTER MANAGEMENT.......................................................................5
3.3.2 IFOX OUTSOURCING CENTER PROCESSING OPERATIONS.......................................................7
3.3.3 TAPE MANAGEMENT.....................................................................................8
3.3.4 DATA SECURITY ADMINISTRATION........................................................................9
3.3.5 MAINFRAME AND THIRD PARTY SOFTWARE TECHNICAL SUPPORT...............................................10
3.4 TELECOMMUNICATIONS SUPPORT SERVICES.......................................................................11
3.5 HELP DESK SERVICES........................................................................................12
3.6 DISASTER RECOVERY.........................................................................................13
3.6.1 IFOX LEONIA OUTSOURCING CENTER.....................................................................13
3.6.2 DISASTER RECOVERY PLAN.............................................................................13
3.6.3 RESPONSIBILITIES...................................................................................13
3.7 PRIORITY LEVELS...........................................................................................14
SCHEDULE A - DESCRIPTIONS OF SERVICES
1.0 DEFINITIONS
All capitalized terms used but not defined in this Schedule A shall have the
respective meanings given them in the
Master Services Agreement (the
"Agreement"). For the purposes of this Schedule, the following terms, when
capitalized, shall have the meanings assigned unless the context requires some
other meaning:
"APPROVE" (abbreviated in the matrices as "A") as used in the matrices
throughout this Schedule A shall mean that the party indicated shall have the
right to approve that task before that task is deemed complete or before the
other party may proceed with the subsequent tasks.
"PARTICIPATION" (abbreviated in the matrices as "S") as used in the matrices
throughout this Schedule shall mean that the party indicated must actively
cooperate in such task to the extent reasonably required by such task. Single or
occasional failures by a party, to take part in a task designated
"Participation" shall not constitute a material breach of this Agreement.
However, repeated failures may constitute a material breach.
"PRIMARY RESPONSIBILITY" (abbreviated in the matrices as "P") as used in the
matrices throughout this Schedule A shall mean that the party, indicated shall
be the party responsible for ensuring the completion of such task.
"TRANSITION PLAN" as used in the matrices throughout this Schedule A shall mean
the description of all tasks that will be performed during the migration of the
IBM Mainframe system as described in the Customer Migration Plan dated May 22,
2001.
2
--------------------------------------------------------------------------------
ADT Security Services, Inc.
Master Services Agreement
Schedule A (Services)
2.0 OVERVIEW
During the Term and subject to the terms conditions and limitations
contained in the Agreement, (including this and other Schedules), IFOX will
provide to ADT the Services described in this Schedule A as they may be
supplemented and modified in Change Orders issued through the Change Control
Procedure as defined in Article 5 of the Services Agreement -- Sections 5.2,
5.3, 5.4, and 5.5, and otherwise in writing by the Parties as an amendment to
this Schedule in accordance with the Agreement.
The following introductory paragraphs are general descriptions that are
subject to the more detailed descriptions, qualifications, limitations and
exclusions in this Schedule A.
The Services include:
a. Account management;
- Contract Procurement/Administration
- Third Party costs administration
b. Outsourcing Center Services;
- IBM Mainframe computer operations and hardware support
- IBM Mainframe and Third Party Software technical support
- Monitoring ADT Data network T1Link from IFOX's Leonia Outsourcing
Center to ADT's Network in Rochester, NY; Denver, CO; and
Jacksonville, FL locations.
c. Telecommunications Support Services
d. Mainframe Disaster Recovery, hotsite, plan, maintenance and annual testing;
e. Second Level Help Desk Service for IBM Mainframe operations, all as further
described below.
Performance of the Services shall include performing services, functions, and
responsibilities so that the Services meet the Service Levels specified by
Schedule B (subject to adjustment in accordance with Schedule B and Article 5 of
the Agreement to reflect Material Operations Changes in ADT's environment and
operations).
The Services include services (i) described in the text below, (ii) identified
as such in the charts or responsibility matrices below and (iii) not
specifically described, but required for proper performance and inherent in or
necessary sub-tasks for the functions described (unless specifically excluded by
the text, a chart or the responsibility matrices).
The Services defined in this Schedule A are included in the Base Charges as
defined in Schedule C, unless otherwise expressly indicated.
The Services exclude:
3
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ADT Security Services, Inc.
Master Services Agreement
Schedule A (Services)
a. Operation of computer platforms and operating systems other than those
described below;
b. All functions retained by ADT or outside the scope of IFOX's
responsibility, as defined by the text charts and responsibility matrices
of this Schedule A;
c. Voice communications and telephone services.
d. All network management outside of the link from IFOX's Leonia Outsourcing
Center to ADT's Network;
e. Level One Help Desk (provided by ADT);
f. Existing print operations;
g. All LAN support for ADT;
h. CD/ROM data retention processing.
3.0 IFOX SERVICES
3.1 KEY IFOX PERSONNEL
Key IFOX Personnel will be:
Account Executive - Xxx Xxxxxxx
Account Manager - Xxxxxx Xxxxx
Technical Account Manager - Xxx Xxxxxxx
3.2 ACCOUNT MANAGEMENT
The IFOX Account Manager will have overall responsibility for delivery of
the Services.
IFOX shall procure any and all Equipment (including, but not limited to,
the IBM Mainframe), Third Party Software, and all other real or personal
property, manpower, software, hardware, facilities, services, and other
resources required or used to perform Services for ADT, only under Third
Party Contracts directly with third party vendors and solely in IFOX's own
name. All Third Party Contracts shall be solely between IFOX and such third
party vendors; and ADT shall not be a party, surety, or guarantor of or to
any Third Party Contract.
Whenever this Schedule A calls for IFOX to administer and manage a contract
with a third party, or to coordinate the third party's service thereunder,
IFOX shall supervise and direct the third party's performance under a Third
Party Contract, but shall make reasonable efforts to minimize any
Reimbursable Costs to ADT thereunder (including, where third party costs
are ADT's responsibility, a reasonable review of third party invoices will
be made).
ACCOUNT MANAGEMENT IFOX ADT
---------------------------------------------------------------------------------------------------------
4
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ADT Security Services, Inc.
Master Services Agreement
Schedule A (Services)
Plan and manage IFOX activities related to the Agreement P S
Meet regularly with ADT and IFOX management to review business and P S
Service issues
Act as liaison between IFOX Outsourcing Center management and ADT P S
management
Report on Service Levels, operations and ongoing projects to ADT P S
management
Review IFOX invoices and supporting documentation with ADT management P S/A
Meet with ADT end users and management to determine requirements and P S
satisfaction with the Services provided by IFOX
Monitor production trends and report to ADT those items that need P S
discussion so as to prevent any future problems i.e. Data Base growth
as well as MIPS and DASD utilization
P = Primary responsibility S = Participation A = Approve
3.3 OUTSOURCING CENTER SERVICES
3.3.1 OUTSOURCING CENTER MANAGEMENT
a. As of the Commencement Date, IFOX will assume responsibility for the
operation, technical support, and management of the IBM Mainframe
processing system environment and the IBM Mainframe system at the IFOX
Outsourcing Center. IFOX shall complete migration to the IBM Mainframe
and all Services to IFOX and the IFOX Outsourcing Center in compliance
with the Transition Plan.
b. The hours of operation of the IFOX Outsourcing Center and IBM
Mainframe will be 24 hours per day, 7 days per week, except for
Scheduled Downtime (as defined in Schedule B). IFOX shall implement
and maintain the following minimum security requirements at the IFOX
Outsourcing Center throughout the Term: multi-layered security, with
continuously staffed guard station, video surveillance, and restricted
access control; redundant power, with immediate back-up protection,
including UPS systems with N + N redundancy and multiple onsite
generators; pre-action fire suppression with FM 200 gas, in addition
to the best available smoke and fire detection systems; multiple
22-ton Liebert Air Handling systems with cooling towers and chillers
to ensure consistent 72 degrees F temperature, including N + N
redundancy; and an additional level of monitoring and maintenance with
a 24/7 central command center and customer service center.
c. The IBM Mainframe and all Third Party Software shall be dedicated
exclusively to ADT on a full-time basis and shall be used solely to
perform Services for ADT.
IFOX and ADT responsibilities with respect to Outsourcing Center Management
are:
OUTSOURCING CENTER MANAGEMENT IFOX ADT
---------------------------------------------------------------------------------------------------------
5
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ADT Security Services, Inc.
Master Services Agreement
Schedule A (Services)
IFOX OUTSOURCING CENTER MANAGEMENT
Plan and manage IFOX activities related to the IFOX Outsourcing Center P
Manage IFOX staff at the IFOX Outsourcing Center P
CONTRACT PROCUREMENT/ADMINISTRATION
Procure and administer all IFOX Outsourcing Center Equipment leases, P
warranty agreements, and maintenance agreements
Procure and administer all IFOX Outsourcing Center Third Party P S
Software contracts and maintenance agreements
Procure and administer all IFOX Outsourcing Center contract services P
and other Third Party Agreements
P = Primary responsibility S = Participation A = Approve
6
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ADT Security Services, Inc.
Master Services Agreement
Schedule A (Services)
3.3.2 IFOX OUTSOURCING CENTER PROCESSING OPERATIONS
IFOX will perform all processing operations functions as necessary to run
the Third Party Software in support of the applications processed on the
IBM Mainframe at the IFOX Outsourcing Center. IFOX will procure, provide,
and install all Equipment necessary to perform the Services at the IFOX
Outsourcing Center, including the IBM Mainframe processing configuration
and the IBM zServer processing configuration referred to and defined in the
Agreement as the "IBM Mainframe." During the Term, IFOX shall measure and
report to ADT on a monthly basis the following information for the IBM
Mainframe: (i) IBM Mainframe operating system on-line and batch
availability and (ii) sub-second CICS internal response time.
IFOX and ADT responsibilities with respect to Outsourcing Center Processing
Operations are:
PROCESSING OPERATIONS IFOX ADT
--------------------------------------------------------------------------------------------------------
CONSOLE OPERATIONS
Perform all manual and automated console operations. P
Monitor performance and completion of on-line and batch production P
systems.
Respond to console alerts and requests. P
Report Problems to the IFOX Help Desk. P
Diagnose and resolve operations problems. P S
Communicate with the IFOX operations and management team on-site at ADT. P
Process special scheduling requests from ADT. P S
IFOX will cooperate with ADT in responding to special processing requests P S
and new processing requirements
EQUIPMENT PROCUREMENT, PLANNING AND MANAGEMENT
Procure and provide all Equipment for IFOX Outsourcing Center P
Plan installation of computer and environmental Equipment in IFOX P S
Outsourcing Center
Order new Equipment installation in IFOX Outsourcing Center. P
Schedule and complete new Equipment installation in IFOX Outsourcing P
Center.
Maintain Equipment in good operating condition under vendor warranty and P
maintenance agreements
Resolve Equipment-related problems in the IFOX Outsourcing Center. P
Interact with Equipment vendors for planning and problem resolution. P
P = Primary responsibility S = Participation A = Approve
7
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.3.3 TAPE MANAGEMENT
IFOX will perform tape management functions within the IFOX Outsourcing
Center.
IFOX and ADT responsibilities with respect to Tape Management are:
TAPE MANAGEMENT IFOX ADT
-----------------------------------------------------------------------------------------------------
Adapt ADT tape management procedures for use at the IFOX Outsourcing P
Center
Respect ADT's governing time periods for retention of tapes, including P A
periods for retention of tapes for audit and tax purposes.
Respond to tape mount requests. P
Monitor tape hardware for malfunction. P
Perform tape hardware maintenance. P
Maintain integrity of tape library system, i.e., monitor, fix and P
research fixes to any tape problem that occurs.
Maintain adequate tape supplies for ADT requirements. P
Maintain and monitor scratch tape pool. P
Maintain and monitor external vendor / data tapes required for ADT P
processing that are not managed by the tape library management system.
Initialize new tapes. P
Provide secure on site and off site tape storage. P
Coordinate off site tape movement. P
Prepare and mail tapes as necessary. P S
P = Primary responsibility S = Participation A = Approve
8
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.3.4 DATA SECURITY ADMINISTRATION
IFOX will manage and administer access to IBM Mainframe systems supported
through a centralized point of contact. ADT will retain the responsibility
for accepting, authorizing and submitting security change requests to IFOX
for implementation.
IFOX and ADT responsibilities with respect to Data Security Administration
are:
DATA SECURITY ADMINISTRATION IFOX ADT
--------------------------------------------------------------------------------------------------------
ADT security administration procedures for use by IFOX. S P
Accept/Authorize security change requests from ADT end users. S P
Submit security change requests to IFOX for implementation. P
Implement authorized security change requests. P
Monitor, review and respond to security violations and/or suspected P S
violations.
Report security violations and/or suspected violations with ADT P
approval.
Implement changes to deter subsequent violations with ADT approval. P S/A
P = Primary responsibility S = Participation A = Approve
9
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.3.5 MAINFRAME AND THIRD PARTY SOFTWARE TECHNICAL SUPPORT
IFOX and ADT responsibilities with respect to Mainframe and Third Party
Software Technical Support are:
TECHNICAL SUPPORT (MAINFRAME) IFOX ADT
--------------------------------------------------------------------------------------------------------
Procure and provide the Third Party Software required for IBM P S
Mainframe system operation as identified in Schedule D. These
software contracts will be signed as Third Party Contracts
Agreements directly and solely between IFOX and the vendor. IFOX
will retain financial responsibility for the payment related to
these contracts.
Install Third Party Software. P
Provide project management for upgrades and updates to Third Party P
Software, DBMS, etc.
Test and validate the Third Party Software environment before and P S
after product installations.
Maintain Third Party Software at vendor product supported levels. P
Procure, install, and test all Third Party Software updates and P
upgrades
Perform Third Party Software problem diagnosis and resolution. P
Configure Third Party Software to meet ADT normal operations P S
requirements.
Coordinate with IFOX Support staff and software/Equipment vendors P
to resolve system problems.
Communicate with Third Party Software vendors. P
Provide technical consulting support to the ADT application P
maintenance and development teams and third parties as required.
Evaluate the list of Third Party Software that is used for ADT and P S
implement changes to benefit ADT and IFOX.
Monitor and report on system through-put, capacity and utilization. P
Tune/optimize Third Party Software including DBMS. P
Participate in disaster recovery tests. P
Monitor and optimize storage performance. P
Assign and initialize DASD volumes. P
Determine dataset and volume placement. P
Maintain established DASD standards. P
Perform catalog management. P
P = Primary responsibility S = Participation A = Approve
10
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.4 TELECOMMUNICATIONS SUPPORT SERVICES
IFOX will provide data communications technical support and operations for
the dedicated T1 links between IFOX's Leonia Outsourcing Center and ADT's
network in Rochester, NY; Denver, CO; and Jacksonville, FL. These links
will connect the IBM Mainframe to ADT's existing network topology. ADT will
provide the necessary circuits and data communications equipment to support
these links.
IFOX and ADT responsibilities with respect to Telecommunications Support
Services are:
DATA COMMUNICATIONS IFOX ADT
-------------------------------------------------------------------------------------------
Provide data circuit and related data communications Equipment to P
connect the IFOX Outsourcing Center to the existing ADT data network
Provide telecommunications controller Equipment (Front End Processor) P
required for the T1 links.
Provide software required for the T1 links P
Diagnose and resolve T1 network problems. S P
Interact with T1 network providers for problem resolution. S P
Maintain up-to-date documentation of the ADT data communications network. S P
Evaluate and recommend data network changes to improve service and/or S P
reduce ADT telecommunications costs.
Order new data circuits and data communications Equipment. S P
Perform NCP and VTAM updates. P
P = Primary responsibility S = Participation A = Approve
11
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.5 HELP DESK SERVICES
IFOX will provide a second level help desk, i.e. one that only receives
calls from ADT's primary Help Desk to support the IBM Mainframe
environment. ADT's end users' primary point of contact will be the existing
front line (level one) help desk. If the ADT help desk cannot provide
resolution to a IBM Mainframe related call, the ADT help desk will then
contact the IFOX help desk. The IFOX help desk will then manage the call
through resolution.
IFOX and ADT responsibilities with respect to Help Desk Services are:
HELP DESK SERVICES IFOX ADT
---------------------------------------------------------------------------------------------------------
Provide a front line help desk that ADT end users will use as the point P
of contact for reporting problems and submitting service requests for
all Services.
Provide second level help desk support for IBM Mainframe related calls that can not P S
be resolved by the ADT help desk
Provide a trouble ticket/service request system to be used in
recording, managing, P S and reporting IBM Mainframe problems and
service requests that escalate from the ADT help desk to the IFOX help
desk
Respond to and track reported IBM Mainframe related problems and requests for P S
Services.
Dispatch support groups or vendors to resolve problems that cannot be
resolved P S directly by the IFOX Help Desk. Support will be provided
by IFOX maintenance staff, the IFOX Outsourcing Center, third party
vendors or ADT management and staff as required.
Maintain problem ownership for IBM Mainframe related calls until the call reaches P S
resolution.
Provide management reporting including Service level performance P
metrics (as defined in Schedule B) and statistical reporting of
reported problems and Service requests.
P = Primary responsibility S = Participation A = Approve
12
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.6 DISASTER RECOVERY
IFOX will provide the following backup, disaster recovery and storage
capabilities for ADT's IBM Mainframe environment during the Term.
3.6.1 IFOX LEONIA OUTSOURCING CENTER
IFOX will provide disaster recovery services for ADT's IBM Mainframe
hardware environments, software environments, operations environments and
applications operating in the IFOX Leonia Outsourcing Center. IFOX will
restore ADT's application data to the most recent available backup copy.
IFOX will also maintain "hotsite" recovery for Outsourcing Center
operations.
3.6.2 DISASTER RECOVERY PLAN
ADT will develop, with IFOX's assistance, a Disaster Recovery Plan ("DRP")
for the IBM Mainframe environments. Pending the modification of the DRP to
reflect the migration to IFOX's Outsourcing Center, IFOX will, as of the
Commencement Date, utilize IFOX's DRP.
3.6.3 RESPONSIBILITIES
IFOX and ADT responsibilities with respect to Disaster Recovery Services
are:
DISASTER RECOVERY IFOX ADT
-------------------------------------------------------------------------------------------------------
Adapt ADT's disaster recovery plan to be executable from the IFOX Outsourcing Center. P S
Ensure that security measures are satisfied in the disaster recovery plan. P A
Ensure that the disaster recovery plan meets ADT's reasonable audit specifications. P A
Assume responsibility for modification, implementation, maintenance and P S
testing of the disaster recovery plan.
Perform a disaster recovery plan test of the recovery of the hardware, P S
Third Party Software and data network annually.
Provide secure off site storage of ADT's data, software and P
documentation to support disaster recovery.
In the event of a disaster, assume responsibility for operating the P S
hardware and providing the functions in accordance with the
disaster recovery plan.
Provide a single point of contact for disaster recovery related communications and P S
activities.
Perfect Backup and Recovery Procedures P S/A
P = Primary responsibility S = Participation A= Approve
13
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
3.7 PRIORITY LEVELS
The priorities for the service levels are as follows:
a. URGENT (UR) Implement the change as soon as possible. May require an
emergency bug fix release if the next regularly scheduled release is
not soon enough. Examples of urgent priorities include modifications,
which if left undone would result in: danger to human life,
significant numbers of people left unproductive, errors in financial
transactions or system failure;
b. BY REQUIRED-BY DATE (RB) Indicates a request, which must be completed
on or before a specified date. Typically used to indicate the date by
which system administrative requests need to be completed, if not
immediately. Can also be used to indicate the date by which changes
must be implemented (e.g., for legislated changes).
c. FOR NEXT SCHEDULED RELEASE (NR)
Include the change in the next regularly scheduled release.
d. WHEN CONVENIENT (CO)
Implement the change during "slack" time and include it in a regularly
scheduled release.
e. HOLD (HO)
Hold only.
14
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ADT Security Services, Inc. Master Services Agreement
Schedule A (Services)
ADT SECURITY SERVICES, INC.
MASTER SERVICES AGREEMENT
SCHEDULE B
TABLE OF CONTENTS
SCHEDULE B - SERVICE LEVELS
1.0 INTRODUCTION................................................................2
2.0 DEFINITIONS.................................................................3
3.0 DETERMINATION OF SERVICE LEVELS.............................................3
4.0 MAINFRAME PROCESSING AND OPERATIONS SERVICE LEVELS..........................4
5.0 IFOX SECOND LEVEL HELP DESK SERVICE LEVELS..................................5
SCHEDULE B - SERVICE LEVELS
1.0 INTRODUCTION
This Schedule describes the Service Levels and performance standards that IFOX
shall provide to ADT with respect to the Services described in Schedule A, and
the basis upon which the Services will be administered under the Master Services
Agreement. As set forth in the Master Services Agreement, regular management
review meetings shall be scheduled with the designated ADT Executive to review
actual performance against projected performance, and to recommend actions to be
taken to resolve any performance deficiencies.
The principles of this Schedule B, under which the Services will be provided to
ADT for the Term, are as follows:
a. Changes to ADT business and service level requirements during the Term
may result in a revision to service categories and Service Levels through
the Change Control Procedure.
b. Service Levels may be adjusted from time to time by mutual agreement
through the Change Control Procedure.
c. IFOX shall continue, during the Term of the Agreement, to investigate
methods to improve the operation of ADT's systems to benefit ADT. In
certain cases, Service Level improvements may be subject to additional
costs. In such instances, IFOX will prepare a Change Control Document
outlining a Service Level improvement business case to ADT for approval
prior to taking any action. Upon ADT's request, or on IFOX's own initiative
IFOX may also recommend or prepare Change Control Documents concerning
adjustments to Service Levels.
d. If a Material Operations Change occurs, and ADT, in its discretion,
declines to authorize any change in the Services or Charges, or to make the
changes in its operations, equipment or environment which are essential and
necessary to maintain Service Levels due solely to such Material Operations
Change, then Service Levels shall be equitably reduced to mutually agreed
upon Service Levels reasonably sustainable without the recommended changes
pursuant to the Change Order Procedure.
2
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ADT Security Services, Inc. Master Services Agreement
Schedule B (Services Levels)
2.0 DEFINITIONS
For purposes of this Schedule B, the following terms shall have the respective
meanings assigned below:
"EVENT" means a single event or series of events that result in the occurrence
of one or more Faults.
"FAULT" means an unexcused failure to meet a Service Level.
"SCHEDULED DOWNTIME" means the time when a critical system or function is
temporarily scheduled to be unavailable because of regularly scheduled
maintenance or other mutually agreed reasons confirmed by IFOX and ADT in a
signed writing.
"UNSCHEDULED DOWNTIME" means the loss or material impairment of a critical
system or function not excused pursuant to Section 2.7 of the Agreement
occurring at any time other than Scheduled Downtime.
3.0 DETERMINATION OF SERVICE LEVELS
Two (2) categories of Service Levels shall be established;
a. Mainframe Processing and Operations Service Levels; and
b. IFOX Second Level Help Desk Service Levels.
Measurements of availability shall exclude Unscheduled Downtime excused pursuant
to Section 2.7 of the Agreement; provided, however, that Unscheduled Downtime
attributable to Force Majeure Events and/or Third Party Software Defects shall
be included in measurements of Unscheduled Downtime for the purposes of
termination under Section 11.4, notwithstanding anything in the definition of
"Unscheduled Downtime" to the contrary.
3
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ADT Security Services, Inc. Master Services Agreement
Schedule B (Services Levels)
4.0 MAINFRAME PROCESSING AND OPERATIONS SERVICE LEVELS
During the Term, IFOX shall provide the following Service Levels with respect to
(i) IBM Mainframe operating system on-line and batch reporting availability
("System Availability") and (ii) Sub-second CICS internal response time
("Internal CICS Response Time").
TABLE B-1
NO. SERVICE CATEGORY SERVICE LEVEL
-----------------------------------------------------------------------------------------------
1. System Availability +% of the time, 24 hours per day, 7 days per week,
determined on a +month moving average and subject to
the limitation set forth below.*
2. Internal CICS Response Time Sub-second, +% of the time, 24 hours per day, 7
days per week, determined on a + month moving average
and subject to the limitation set forth below.*
*Material Faults actually known by ADT but not reported by ADT to IFOX within
+ of actual discovery by ADT will be excluded in the computation of Unscheduled
Downtime.
Scheduled Downtime shall be (i) scheduled with ADT at least several days in
advance, (ii) require the ADT Project Executive's (or his designee's) prior
approval, and (iii) in accordance with the applicable manufacturer's approved
maintenance schedule for the IBM Mainframe. ADT refusal to approve the Scheduled
Downtime necessary to fulfill the manufacturer's approved maintenance schedule
may trigger the exclusion for system performance degradation in Section 2.7d.
4
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ADT Security Services, Inc. Master Services Agreement
Schedule B (Services Levels)
+ Confidential portion has been omitted and filed separately with the
Commission.
5.0 IFOX SECOND LEVEL HELP DESK SERVICE LEVELS
During the Term, IFOX shall measure and report to ADT, through its monthly
reports call management details, summaries and analysis. IFOX will provide a 24
hours per day, seven days per week, Second Level Help Desk that shall manage
calls in accordance with the following:
a. CLASSIFICATION
Upon notification of a problem or service report to the IFOX Help Desk, IFOX
shall immediately open an incident report ("IR") and identify, and classify the
problem in accordance with the Severity Levels listed below subject to
reclassification by ADT. The only ADT employees authorized to reclassify
problems are (1) ADT's President and (2) ADT's Senior Vice President of
Information Technology ("IT") or in the absence of either person such person's
designees.
SEVERITY 1 Impact to a critical function, including, but not limited to:
- User problem with severe business impact
- Severe impact on ADT data center or (after Transition) IFOX
Outsourcing Center ability to provide resources or services
to users,
- Severe performance degradation.
SEVERITY 2
- User problem with possible major impact:
- Major impact on availability of resources to users: or
- Major impact on IFOX's ability to provide resources or
services to users.
- Major performance degradation.
SEVERITY 3
- User problem with moderate impact,
- Moderate impact on availability of resources to users,
- Moderate impact on IFOX's ability to provide resources or
services to users,
- Moderate performance degradation.
SEVERITY 4
- User problem with limited impact;
- Low impact on availability of computer resources to users;
- Low impact on IFOX's ability to provide resources or
services to users; or
- Low performance degradation.
- User inquiry or problem that does not affect the user.
b. NOTICE
For Severity 1 and 2 IR's, IFOX shall notify the ADT Senior Vice President of
IT(or his/her designee) and affected user organizations within * of the
recognition of a problem.
C. INITIATION
5
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ADT Security Services, Inc. Master Services Agreement
Schedule B (Services Levels)
* Confidential portion has been omitted and filed separately with the
Commission.
Upon detection of a problem, IFOX shall immediately, direct efforts to identify
and classify the problem. Upon identification and classification, IFOX shall
initiate problem resolution efforts within the following time periods:
- Severity 1 *
- Severity 2 *
- Severity 3 *
- Severity 4 *
For all Severity 1 IR's IFOX shall, within one business day following IFOX s
first detecting or being informed of the problem by telephone call or electronic
mail message, communicate, either by telephone, or if requested by ADT, by
electronic mail the course of action that will be taken by IFOX. In addition to
the above, IFOX shall provide ADT with a written plan for the prompt correction
of all Severity 1 IR's within * of receipt of such incident reports. IFOX
will use its best efforts to correct Severity 1 IR's and commercially reasonable
efforts to correct Severity 2, 3 and 4 IR's. IFOX may in its discretion, defer
resolution of Severity 3 and 4 IR's pending resolution of higher priority IR's.
If Severity 1 and 2 IR's are open simultaneously, IFOX may not defer resolution
of the Severity 2 IR.
D. ESCALATION
In the event a problem is not corrected, IFOX shall escalate the problem to the
next higher management level within ADT and other relevant organizations (e.g.
third party vendors, subcontractors, communications carriers, etc) within the
following time periods:
MANAGEMENT LEVEL
FOR ADT SEVERITY 1 SEVERITY 2 SEVERITY 3 SEVERITY 4
-------------------------------------------------------------------------------------------------------------------------
Supervisor * * If problem lasts longer than * Reported in Monthly
Xxx Xxxxx then escalate to Severity 2 status report
Manager/Account Exec. * * If problem lasts longer than * Reported in Monthly
Xxxx Xxxxxxxx then escalate to Severity 2 status report
Vice President * * If problem lasts longer than * Reported in Monthly
Xxxxx Xxxxxxxxxxx then escalate to Severity 2 status report
Executive Management * * If problem lasts longer than * Reported in Monthly
Xxxx Xxxxxx then escalate to Severity 2 status report
6
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ADT Security Services, Inc. Master Services Agreement
Schedule B (Services Levels)
* Confidential portion has been omitted and filed separately with the
Commission.
EXECUTION COPY
ADT SECURITY SERVICES, INC.
MASTER SERVICES AGREEMENT
SCHEDULE C
TABLE OF CONTENTS
SCHEDULE C - CHARGES
1.0 DEFINITIONS..............................................................2
2.0 BASE CHARGES.............................................................2
3.0 REIMBURSABLE EXPENSES....................................................3
4.0 INFLATION................................................................3
5.0 TAXES....................................................................4
6.0 ADDITIONAL SERVICES......................................................4
7.0 CONVENIENCE TERMINATION FEE..............................................4
SCHEDULE C - CHARGES
1.0 DEFINITIONS
All capitalized terms used but defined in this Schedule C shall have the
meanings assigned thereto in the Master Services Agreement.
2.0 BASE CHARGES
After the Commencement Date, October 1, 2001, ADT shall pay IFOX the Base
Charges specified by Table C-1 below (as adjusted in accordance with this
Schedule) for each month of Services performed by IFOX hereunder -- Account
Management, Outsourcing Center Services, Telecommunications Support Services,
Help Desk Services, and Disaster Recovery Services for the IBM Mainframe (all as
described in 3.0 of Schedule A).
BASE CHARGES
CONTRACT YEAR BASIS
TABLE C-1
MONTHLY BASE CHARGES YEAR 1 YEAR 2 YEAR 3 YEAR 4
---------------------- --------- --------- --------- ---------
Services $ * $ * $ * $ *
ONE TIME FEES
Third Party Software Costs - Estimated to be a total of $* (for all software
listed on Schedule D), plus shipping, Taxes, plus an administrative fee equal to
*% of the sum of the forgoing. Software costs will be invoiced as and when the
Third Party Software is deployed by IFOX for performance of the Services and
shall be payable 30 days from date of ADT's receipt of IFOX's invoice. The
aggregate total Third Party Software Costs to ADT for all Third Party Software
shall not exceed $* and shall accrue and be paid on a one-time (rather than
periodic) basis upon deployment.
The computer operations Monthly Base Charges will be paid by ADT by the
fifteenth (15) of each month based upon the schedule identified above without
the receipt of an invoice from IFOX, subject to the terms and conditions
contained in the Agreement.
Base Charges are for the Services performed by IFOX using the Third Party
Software and the following mainframe Equipment (the "IBM Mainframe"):
*
2
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ADT Security Services, Inc. Master Services Agreement
Schedule C (Charges)
* Confidential portion has been omitted and filed separately with the
Commission.
All hardware maintenance - Multiple environments to include one
or more of Development, Testing, Production, and Training.
*
3.0 REIMBURSABLE EXPENSES
ADT agrees to reimburse the following Out-of-Pocket Expenses of IFOX
(collectively, "Reimbursable Expenses"):
a. All reasonable travel and lodging expenses incurred by IFOX personnel
(i) for trips made before or after the Commencement Date to migrate
ADT mainframe processing to the IBM Mainframe; or (ii) for trips made
after the Commencement Date in response to ADT's specific invitation
or request therefor (excluding, without limitation, all travel and
lodging expenses incurred by IFOX personnel in an attending any
meeting or conference contemplated by the Agreement), subject, in each
case, to ADT's corporate travel policy then in effect for its own
employees; and
b. All of the following reasonable costs incurred by IFOX for third party
services procured solely to perform the Services for ADT: (i)
materials, postage, supplies, pick-up and delivery services, which
items shall be reimbursable without ADT's advance written approval,
and (ii) other Out-of-Pocket Expenses incurred by IFOX with ADT's
prior written authorization given prior to the time that such
Out-of-Pocket Expenses are incurred, except that any items listed in
6.0 as Additional Services shall not be Reimbursable Expenses.
c. All Reimbursable Expenses shall be subject to a * management and
administrative fee.
IFOX's invoices for Reimbursable Expenses shall specify those expenses in
reasonable detail. Upon ADT's request, IFOX shall provide reasonable supporting
documentation that ADT may request to substantiate those expenses. Reimbursable
Expenses shall be paid within thirty (30) days of ADT's receipt of IFOX's
invoice therefor.
4.0 INFLATION
The Base Charges set forth in Schedule C, Table C-1, do not include adjustments
for future inflation. * percent of the Base Charges will be adjusted for
inflation as detailed in the Master Services Agreement Section 8.6 entitled
"Cost of Living Adjustment."
5.0 TAXES
3
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ADT Security Services, Inc. Master Services Agreement
Schedule C (Charges)
* Confidential portion has been omitted and filed separately with the
Commission.
The Base Charges set forth in Schedule C, Table C-1 are exclusive of any
applicable Tax. Payment of applicable Taxes by ADT will be handled as detailed
in the Master Services Agreement Section 8.8 entitled "Taxes."
6.0 ADDITIONAL SERVICES
Additional Services shall be charged at IFOX's then prevailing rates. The rates
now in effect are as follows:
RESOURCE DESCRIPTION FEES
------------------------ --------------------------- ------------------------
Professional Services Technical Support $* per hour
Operations Support $* per hour
Impact Printing Single part paper $* per 1,000 lines
Multi part paper $* per 1,000 lines
Laser Printing $* per page
Media Supplies Tape-Standard Reel $* per tape
Cartridge Diskettes $* per cartridge
Virtual Tape Cartridge
30 Gig (Native) $* per cartridge
60 Gig (Native) $* per cartridge
7.0 CONVENIENCE TERMINATION FEE
TERMINATION IS EFFECTIVE IN MONTH CONVENIENCE TERMINATION FEE
--------------------------------- ---------------------------
April 2004 *
May 2004 *
June 2004 *
July 2004 *
August 2004 *
September 2004 *
October 2004 *
November 2004 *
December 2004 *
January 2005 *
February 2005 *
March 2005 *
April 2005 *
May 2005 *
June 2005 *
July 2005 *
August 2005 *
September 2005 *
4
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule C (Charges)
* Confidential portion has been omitted and filed separately with the
Commission.
EXECUTION COPY
ADT SECURITY SERVICES, INC.
MASTER SERVICES AGREEMENT
SCHEDULE D
TABLE OF CONTENTS
SCHEDULE D - THIRD PARTY SOFTWARE
1.0 THIRD PARTY SOFTWARE.......................................................
1.1 IBM THIRD PARTY SOFTWARE.............................................2
1.2 OTHER THIRD PARTY SOFTWARE...........................................4
1.0 THIRD PARTY SOFTWARE
1.1 IBM Third Party Software
IFOX may with ADT's prior written approval in an executed Change Control
Document replace any or all of the IBM Third Party Software with functionally
equivalent software as set forth in such Change Control Document.
IBM THIRD PARTY SOFTWARE
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
2
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential portion has been omitted and filed separately with the
Commission.
*
*
*
*
*
*
*
*
*
*
*
*
*
3
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential portion has been omitted and filed separately with the
Commission.
1.2 Other Third Party Software
IFOX may with ADT's prior written approval in an executed Change Control
Document replace any or all of the Other Third Party Software with functionally
equivalent software as set forth in such Change Control Document.
OTHER THIRD PARTY SOFTWARE
Xxxxx Sys (ViaSoft)
*
Xxxx & Xxxxxx
*
BMC Software
*
*
*
*
*
*
*
*
*
*
*
*
CA
*
4
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential portion has been omitted and filed separately with the
Commission.
*
*
*
*
*
*
*
*
*
Chicago Soft
*
Candle Corp
*
*
Compuware Corp
*
*
*
*
*
*
Consul Risk Mgt
*
5
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ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential Portion has been omitted and filed separately with the
Commission.
Group 1 Software
*
*
Innovation Data Proc
*
*
Isogon
*
Mantissa Software
*
*
*
Netec Intl.
*
Softworks
*
Vertex Software
*
*
*
*
Triology Software
*
*
*
*
6
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential Portion has been omitted and filed separately with the
Commission.
*
*
*
*
7
--------------------------------------------------------------------------------
ADT Security Services, Inc. Master Services Agreement
Schedule D (Third Party Software)
* Confidential Portion has been omitted and filed separately with the
Commission.
