Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Exhibit 10.9
MASTER AGREEMENT
FOR
U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP
("SUNGARD")
AND
ATHENAHEALTH
A ________________ CORPORATION
("CUSTOMER")
DATED
MARCH 31, 2007
(THE "MASTER AGREEMENT")
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Master Agreement.
SUNGARD AVAILABILITY SERVICES LP CUSTOMER: ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: MARCH 30, 2007
This Master Agreement is comprised of the general terms and conditions set forth
below and the terms and conditions set forth in the Services Exhibit(s) attached
hereto (the services described in such exhibit(s) are referred to collectively
as the "Services"). Each Schedule entered into hereunder represents a separate
contract between SunGard and Customer or one of its Affiliates (as defined
below) that incorporates and is governed by all of the terms of this Master
Agreement. If there is a conflict between a Schedule and this Master Agreement,
the Schedule shall govern. Each Schedule will designate which type of Services
it covers by reference to one of the Services Exhibits. Each Schedule may be
signed by Customer or one of its Affiliates, and such signer shall be deemed to
be "Customer" for purposes of that Schedule, provided that the Customer who
signed this Master Agreement shall be jointly and severally liable with such
Affiliate for the performance of all obligations under such Schedule.
"Affiliate" means any entity which directly or indirectly controls, is
controlled by, or is under common control with Customer for as long as such
relationship remains in effect.
THE TERMS OF THIS AGREEMENT ARE CONFIDENTIAL
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GENERAL TERMS AND CONDITIONS.
1. CONTRACT TERM. This Master Agreement shall continue in effect as long as
there is a Schedule in effect. The term of a Schedule, and Customer's rights to
use the Services selected on that Schedule, shall begin on the Commencement Date
stated in that Schedule and continue in effect for the Agreed Term stated in
that Schedule. Thereafter, that Schedule shall automatically renew for
successive renewal terms of ninety (90) days, unless either party gives written
notice of termination to the other at least ninety (90) days before the end of
the then current term. Each Schedule is a non-cancelable contract that may be
terminated only in accordance with its express terms and the terms of this
Master Agreement.
2. FEES AND EXPENSES. All Monthly or Annual Fees (as defined in a Schedule)
shall be invoiced by SunGard in advance at the billing address defined in the
Schedule. All other fees, and any out-of-pocket expenses reasonably incurred by
SunGard on behalf of Customer shall be invoiced by SunGard as and when incurred.
Customer's payments shall be due within thirty (30) days after receipt of
invoice. For any amount not paid when due, Customer will pay interest at the
lesser of fifteen percent (15%) per annum or the maximum amount permitted by
law. Unless Customer provides a valid tax exemption certificate, Customer shall
be responsible for any sales, use, excise or comparable taxes assessed or
imposed upon the Services provided or the amounts charged under a Schedule.
Beginning one year after the Commencement Date of a Schedule, SunGard may
increase all fees chargeable under that Schedule by up to eight percent (8%) per
contract year, by giving Customer at least ninety (90) days prior written
notice.
3. CONFIDENTIALITY.
(a) All information disclosed by one party to the other in connection with this
Master Agreement shall be treated as confidential ("Confidential Information").
With respect to Confidential Information disclosed by one party ("disclosing
party") to the other party ("receiving party"), (i) the receiving party shall
hold such Confidential Information in strict confidence using the same standard
of care as it uses to protect its own confidential information but not less than
a reasonable standard of care, (ii) the receiving party shall not use or
disclose such Confidential Information for any purpose except as necessary to
fulfill its obligations under a Schedule or this Master Agreement, or except as
required by law provided that the disclosing party is given a reasonable
opportunity to obtain, at its expense, a protective order (the receiving party
shall reasonably cooperate with the disclosing party in connection therewith),
(iii) the receiving party shall limit access to such Confidential Information to
such of its employees, agents and contractors who need such access to fulfill
the receiving party's obligations under a Schedule, and (iv) the receiving party
shall require its employees, agents and contractors who have access to such
Confidential Information to abide by the confidentiality provisions of this
Master Agreement.
(b) Without limiting the generality of the foregoing, such Confidential
Information includes (i) with respect to Customer, Customer's data and software
and the details of Customer's computer operations and recovery procedures, which
include trade secrets of Customer, (ii) with respect to SunGard, SunGard's
physical security systems, access control systems, specialized recovery
equipment and techniques, pricing information, User's Guides, and E-Testing
Program, which include trade secrets of SunGard, and (iii) with respect to both
parties, the terms of this Master Agreement and all Schedules and any detailed
information regarding the performance of this Master Agreement or any Schedule.
(c) Confidential Information shall not include information that (i) is or
becomes publicly available through no wrongful act of the receiving party, (ii)
was known by the receiving party without any obligation of confidentiality at
the time of disclosure by the disclosing party, (iii) was obtained by the
receiving party from a third party without restriction on disclosure, or (iv)
was developed independently by the receiving party. Confidential Information
shall not include "Protected Health Information," which shall be governed by the
provisions of Section 3(d) below.
(d) PROTECTED HEALTH INFORMATION. Customer is subject to, and is considered a
"Covered Entity" under, the provisions of the privacy regulations, 45 CFR Part
160 and Part 164, Subparts A and E (the "Privacy Regulations") and the security
regulations, 45 CFR Part 160, Part 162 and Part 164, (the "Security
Regulations") under the Health Insurance Portability and Accountability Act of
1996, 42 U.S.C. Section 1171, et seq. ("HIPAA"). From time to time, in the
course of providing services to Customer under the Master Agreement, SunGard may
receive from Customer certain information relating to an individual's physical
or mental health that may constitute "protected health information" as defined
in the Privacy Regulations. Such protected health information received by
SunGard from Customer or on Customer's behalf ("PHI") shall be subject to the
following:
RESTRICTION ON USE AND DISCLOSURE OF PHI; ACCESS TO PHI.
a. SunGard agrees to not use or disclose PHI other than as permitted or
required by this Master Agreement or as "Required By Law" (as defined
in the Privacy Regulations).
b. SunGard agrees to use appropriate safeguards to prevent use or
disclosure of PHI other than as provided for by this Master Agreement.
c. SunGard agrees to mitigate, to the extent practicable, any harmful
effect that is known to SunGard of a use or disclosure of PHI by
SunGard in violation of the requirements of this Master Agreement.
d. SunGard agrees to report to Customer any use or disclosure of PHI not
provided for by this Master Agreement of which SunGard becomes aware.
e. SunGard agrees to ensure that any agent, including a subcontractor, to
whom it provides PHI agrees to the same restrictions and conditions
that apply through this Section 3(d) to SunGard with respect to such
information.
f. SunGard agrees to provide access, within 30 days after written notice
is received from Customer, to PHI in a "Designated Record Set" (as
defined in the Privacy Regulations), to Customer or, as directed by
Customer, to an "Individual" (as defined in the Privacy Regulations)
in order to meet the requirements under 45 CFR Section 164.524.
g. SunGard agrees to make any amendment(s) to PHI in a Designated Record
Set that the Customer directs or
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agrees to pursuant to 45 CFR Section 164.526 within 30 days after
written notice is received from Customer.
h. SunGard agrees to make internal practices, books, and records,
including policies and procedures and PHI, relating to the use and
disclosure of PHI available to the Secretary of the Department of
Health and Human Services or his designee, within 30 days after
written notice is received from Customer or at a time reasonably
designated by the Secretary, for purposes of the Secretary determining
Customer's compliance with the Privacy Regulations; provided that such
access shall only be provided to the extent it would not interfere
with another Customer's use of the Recovery Services during a test or
disaster of such other Customer.
i. SunGard agrees to document such disclosures of PHI and information
related to such disclosures as would be required for Customer to
respond to a request by an Individual for an accounting of disclosures
of PHI in accordance with 45 CFR Section 164.528.
j. SunGard agrees to provide to Customer or an Individual, within 30 days
after written notice is received from Customer or an Individual,
information collected in accordance with Section 3(d)(i)(i) above, to
permit Customer to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 CFR Section
164.528.
(ii) PERMITTED USE AND DISCLOSURE OF PHI.
a. Except as otherwise limited in this Master Agreement, SunGard may use
PHI for the proper management and administration of SunGard or to
carry out the legal responsibilities of SunGard.
b. Except as otherwise limited in this Master Agreement, SunGard may
disclose PHI for the proper management and administration of SunGard,
provided that disclosures are Required By Law, or SunGard obtains
reasonable assurances from the person to whom the information is
disclosed that it will remain confidential and used or further
disclosed only as Required By Law or for the purpose for which it was
disclosed to the person, and the person notifies SunGard of any
instances of which it is aware in which the confidentiality of the
information has been breached.
(iii) OBLIGATIONS OF CUSTOMER.
a. Customer shall notify SunGard of any limitation(s) in its notice of
privacy practices of Customer in accordance with 45 CFR Section
164.520, to the extent that such limitation may affect SunGard's use
or disclosure of PHI.
b. Customer shall notify SunGard of any changes in, or revocation of,
permission by an Individual to use or disclose PHI, to the extent that
such changes may affect SunGard's use or disclosure of PHI.
c. Customer shall notify SunGard of any restriction to the use or
disclosure of PHI that Customer has agreed to in accordance with 45
CFR Section 164.522, to the extent that such restriction may affect
SunGard's use or disclosure of PHI.
d. Customer shall not request SunGard to use or disclose PHI in any
manner that would not be permissible under the Privacy Regulations if
done by Customer.
e. At the conclusion of any Disaster, extended use, Test, or other use of
the Recovery Services, Customer shall remove, erase or destroy all PHI
it maintained in any form, recorded on any medium, or stored in any
storage system as part of its use of the Recovery Services.
f. Customer shall be responsible to pay, or reimburse SunGard for,
SunGard's costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) to comply with the obligations
under this Section 3(d).
(iv) The terms of this Section 3(d) shall survive termination of the Master
Agreement and shall terminate when all PHI is destroyed or returned to Customer,
or, if it is infeasible to return or destroy PHI, protections are extended to
such information, in accordance with the termination provisions in Section
3(d)(vi) below.
(v) Except as provided in Section 3(d)(vi) below, upon termination of this
Master Agreement, for any reason, SunGard shall return or destroy all PHI still
in its possession. This provision shall apply to PHI that is in the possession
of subcontractors or agents of SunGard. SunGard shall retain no copies of PHI.
(vi) In the event that SunGard determines that returning or destroying PHI is
infeasible, SunGard shall provide to Customer notification of the conditions
that make return or destruction infeasible. SunGard shall extend the protections
of this Master Agreement to such PHI and limit further uses and disclosures of
such PHI to those purposes that make the return or destruction infeasible, for
so long as SunGard maintains such PHI.
(vii) On and after the effective date of March 19, 2005, and to the extent
required by, 45 CFR 164.314(a)(2), SunGard agrees to:
a. implement administrative, physical and technical safeguards that
reasonably and appropriately protect the confidentiality, integrity, and
availability of the electronic PHI that it creates, receives, maintains, or
transmits on behalf of Customer;
b. ensure that any agent, including a subcontractor, to whom it provides
such PHI agrees to implement reasonable and appropriate safeguards to
protect it; and
c. report to Customer any security incident of which it becomes aware.
(viii) Upon Customer's knowledge of a material breach by SunGard of this Section
3(d), Customer shall either:
a. provide a 30 day opportunity for SunGard to cure the breach or end the
violation and terminate this Agreement if SunGard does not cure the breach
or end the violation within the 30 day cure period;
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b. immediately terminate this Agreement if SunGard has breached a material
term of this Section 3(d) and cure is not possible; or
c. if neither termination nor cure are feasible, Customer shall report the
violation to the Secretary of the Department of Health and Human Services.
(e) If this Master Agreement includes a Professional Services Exhibit, the
following additional terms shall apply. Customer acknowledges that SunGard's
property includes trade secrets, confidential information and proprietary
property of SunGard, having great commercial value to SunGard, and that the
development and design of SunGard's property has involved and will involve the
expenditure by SunGard of substantial amounts of time and money. All items of
SunGard's property are being provided by SunGard to Customer on a strictly
confidential basis and only for in-house use for the purpose of allowing
Customer to establish, maintain and implement business recovery and other plans
and procedures. Except with the prior written consent of SunGard, Customer will
not, nor will it permit any other entity or individual to (a) use any SunGard
property for any purpose not authorized by this Agreement, (b) refer to or
otherwise use any SunGard property as part of any effort to provide similar
Services to any entity or individual, or (c) remove, erase or tamper with any
copyright or other proprietary notice of SunGard printed or stamped on, affixed
to, or encoded or recorded in any SunGard property.
4. TERMINATION.
(a) If either party breaches any of its obligations under a Schedule in any
material respect and the breach is not substantially cured within the cure
period specified below, then the other party may terminate that Schedule,
without penalty, by giving written notice to the breaching party at any
time before the breach is substantially cured. If this Master Agreement
includes a Recovery Services Exhibit, then (i) with respect to a breach of
SunGard's obligations to provide the Recovery Services to Customer during a
Disaster (as such terms are defined in the Recovery Services Exhibit), the
cure period shall be twenty-four (24) hours, and (ii) with respect to
Customer's obligations under the access and use provisions set forth in
Section A.2, A.3, and C of the Recovery Services Exhibit, there shall be no
cure period (and SunGard shall have the right to terminate the applicable
Schedule immediately). With respect to Customer's obligations to comply
with SunGard's Network Policies (as defined in the applicable Services
Exhibit), the cure period shall be five (5) days. With respect to all other
obligations, unless otherwise specified, the cure period shall be 30 days
after receipt of written notice describing the breach, provided that, if a
longer period is reasonably required to cure the breach and the cure is
promptly begun, such cure period shall be extended for as long as the cure
is being diligently prosecuted to completion.
(b) If a Schedule is terminated due to an uncured material breach by
Customer, or if Customer properly exercises a right to cancel a Schedule
before the end of the Agreed Term, then Customer shall (i) pay to SunGard
the unamortized balance attributable to any equipment and software
purchased by SunGard on behalf of Customer (as designated in the applicable
Schedule) and (ii) reimburse SunGard for any cancellation charges for third
party services purchased by SunGard on behalf of Customer (as designated in
the applicable Schedule).
5. LIABILITY AND INDEMNIFICATION.
(a) Each party ("liable party") shall be liable to the other party for any
direct damages caused by any breach of contract, negligence or willful
misconduct of the liable party (or any of its employees or agents).
(b) The liable party shall indemnify and hold harmless the other party (and its
Affiliates and their respective employees and agents) against any claims,
actions, damages, losses or liabilities to the extent arising from any breach of
contract, negligence or willful misconduct of the liable party (or any of its
employees or agents).
(c) In addition, SunGard shall indemnify and hold harmless Customer against any
claims, actions, damages, losses or liabilities to the extent arising from
infringement of any U.S. patent, copyright or other proprietary right resulting
from Customer's use of intellectual property developed or owned by SunGard and
used to provide the Services. SunGard's liability with respect to this
infringement indemnification is limited to making the Services non-infringing or
arranging for Customer's continued use of the Services, provided that, if both
of the foregoing options are commercially impracticable for SunGard, then upon
written notice to Customer, SunGard may cancel the affected portion of the
Services and refund to Customer any prepaid fees for such Services. With respect
to intellectual property of third parties that is used by SunGard to provide the
Services, SunGard will, to the extent possible, provide to Customer the full
benefit of all applicable warranties and indemnities granted to SunGard by such
third parties.
(d) In addition, Customer shall indemnify and hold harmless SunGard against any
claims, actions, damages, losses or liabilities to the extent arising from (i)
infringement of any U.S. patent, copyright or other proprietary right
attributable to Customer's data, content, software or other materials, (ii)
Customer's use of any Services in violation of any law, rule or regulation,
(iii) Customer's violation of any of SunGard's Network Policies (as defined in
the applicable Services Exhibit), or (iv) Customer's use, control or possession
of any Mobile Resources at non-SunGard facilities.
(e) An indemnifying party shall have no obligation for indemnification unless
the other party promptly gives written notice to the indemnifying party after
any applicable matter arises and allows the indemnifying party to have sole
control of the defense or settlement of any underlying claim; provided that the
indemnifying party may not settle a claim without the other party's prior
written consent. Notice will be considered prompt as long as there is no
material prejudice to the indemnifying party.
6. LIMITATION OF LIABILITY
(a) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR LOST REVENUES, LOST
PROFITS, LOSS OF BUSINESS, OR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR
PUNITIVE DAMAGES OF ANY NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS
OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND
WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES IS FORESEEABLE; PROVIDED THAT
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THIS EXCLUSION SHALL NOT APPLY TO (I) THE PARTY'S RESPECTIVE CONFIDENTIALITY
OBLIGATIONS UNDER SECTION 3, (II) SUNGARD'S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 5(B) WITH RESPECT TO WILLFUL MISCONDUCT AND UNDER SECTION 5(C), (III)
CUSTOMER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 5(B) WITH RESPECT TO
WILLFUL MISCONDUCT AND UNDER SECTION 5(D), AND (IV) CUSTOMER'S PAYMENT
OBLIGATIONS.
(b) Except for SunGard's indemnification obligations under Section 5(b) with
respect to willful misconduct and under Section 5(c), SunGard's total liability
under a Schedule, whether in contract, tort (including negligence or strict
liability), or otherwise, shall not exceed (i) the actual Monthly Fees paid by
Customer to SunGard under that Schedule for the most recent twelve (12) month
period, or (ii) in the case of Professional Services, the actual service fees
paid by Customer for the Professional Services under that Schedule.
(c) Except for any direct damages caused by SunGard's negligence or willful
misconduct, SunGard shall have no liability for any damage to, or loss or theft
of, any of (i) Customer's tangible property located at a SunGard facility or in
a SunGard vehicle, or (ii) Customer's data, content, software or other materials
located, used or restored at a SunGard facility or in a SunGard vehicle, or
transmitted using SunGard's Network Services. If Customer's data is damaged,
lost or stolen as a result of SunGard's negligence, then SunGard shall be liable
to Customer only for Customer's documented out-of-pocket expenses incurred to
recreate such data. Under no circumstances will SunGard be considered the
official custodian or record keeper of Customer's data for regulatory or other
purposes.
WITH RESPECT TO EACH SCHEDULE, EXCEPT AS SPECIFICALLY STATED IN THIS MASTER
AGREEMENT OR SUCH SCHEDULE, SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL
OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF
PERFORMANCE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY
REPRESENTATION OR DESCRIPTION, NON-INTERFERENCE OR NON-INFRINGEMENT.
7. FORCE MAJEURE. Neither party shall be liable for, nor shall either party be
considered in breach of this Master Agreement or any Schedule due to, any
failure to perform its obligations as a result of a cause beyond its control,
including any natural calamity, act of God or a public enemy, act of any
military, civil or regulatory authority, change in any law or regulation,
disruption or outage of communications, power or other utility, failure to
perform by any supplier or other third party, or other cause which could not
have been prevented with reasonable care. If any force majeure event affects
SunGard's ability to deliver Services, then SunGard shall use all reasonable
efforts to implement its applicable redundant resources or other back-up
solutions.
8. NOTICE. All notices, consents and other communications under this Master
Agreement shall be in writing and shall be deemed to have been received on the
earlier of (a) the date of actual receipt at the designated street address, (b)
the first business day after being sent to the designated street address by a
reputable overnight delivery service, or (c) the third business day after being
mailed to the designated street address by first class mail. Any notice may be
given by e-mail to the designated e-mail address or by fax to the designated fax
number, provided that a signed written confirmation is received at the
designated street address within seventy-two (72) hours thereafter. Disaster
declaration notice (as described in the Recovery Services Exhibit) may be given
orally, provided that a signed written confirmation is received at the
applicable recovery facility within twenty-four (24) hours thereafter.
Communications sent to any street address, e-mail address or fax number other
than those designated in this Master Agreement or the applicable Schedule shall
not be valid. Customer's street address, e-mail address and fax number for
notice are stated in the applicable Schedule. SunGard's street address for
notice is 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000, Attention:
Contract Administration. SunGard's e-mail address for notice is
xxxxxxxx.xxxxx@xxxxxxx.xxx. SunGard's fax number for notice is 0-000-000-0000.
9. PUBLICITY. Neither party will, without the other party's prior written
consent, (a) use the name, trademark, logo or other identifying marks of the
other party in any sales, marketing or publicity activities or materials, or (b)
issue any press release, interviews or other public statement regarding this
Master Agreement or any Schedule; provided that either party may publicly refer
to the other by name as a vendor or customer and may disclose the existence and
general nature of this Master Agreement (but not any of the specific terms of
this Master Agreement or any Schedule or any detailed information regarding the
performance of this Master Agreement or any Schedule).
10. ENTIRE UNDERSTANDING. This Master Agreement states the entire understanding
between the parties with respect to its subject matter, and supersedes all prior
proposals, negotiations and other written or oral communications between the
parties with respect to its subject matter. Each Schedule states the entire
understanding between the parties with respect to its subject matter, and
supersedes all prior proposals, negotiations and other written or oral
communications between the parties with respect to its subject matter. No
modification of this Master Agreement or any Schedule, and no waiver of any
breach of this Master Agreement or any Schedule, shall be effective unless in
writing and signed by an authorized representative of the party against whom
enforcement is sought. No waiver of any breach of this Master Agreement or any
Schedule, and no course of dealing between the parties, shall be construed as a
waiver of any subsequent breach thereof. Any purchase order submitted by
Customer to SunGard shall be used only for invoice processing purposes and shall
have no legal effect.
11. PARTIES IN INTEREST. Neither party may assign this Master Agreement or any
Schedule, or any rights or obligations thereunder, without the prior written
consent of the other party, which will not be unreasonably withheld; provided
that either party may assign any Schedule to an Affiliate by giving prior
written notice to the other party. This Master Agreement and each Schedule shall
bind, benefit and be enforceable by and against both parties and their
respective successors and permissible assigns. No third party shall be
considered a beneficiary of, or entitled to any rights under, this Master
Agreement or any Schedule.
12. CONSTRUCTION. THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY
SUBSTANTIVE
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PENNSYLVANIA LAW. This choice of governing law shall not be considered
determinative of the jurisdiction or venue of any action between the parties. In
any action relating to this Master Agreement or any Schedule, (a) each of the
parties irrevocably waives the right to trial by jury, (b) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the designated street address at which
the party is to receive notice in accordance with Section 8 of this Master
Agreement, and (c) the prevailing party shall be entitled to recover its
reasonable attorney's fees (including, if applicable, charges for in-house
counsel), court costs and other legal expenses from the other party. A
determination that any term of this Master Agreement or any Schedule is invalid
or unenforceable shall not affect the other terms thereof. Section headings are
for convenience of reference only and shall not affect the interpretation of
this Master Agreement or any Schedule. The relationship between the parties
created by this Master Agreement or any Schedule is that of independent
contractors, and not partners, joint venturers or agents. Sections 3, 5, 6 and
l2 shall survive any termination of this Master Agreement or any Schedule.
13. ENFORCEMENT. Each party acknowledges that the provisions of this Master
Agreement regarding confidentiality and access to and use of the other party's
resources are reasonable and necessary to protect the other party's legitimate
business interests. Each party acknowledges that any breach of such provisions
shall result in irreparable injury to the other for which money damages could
not adequately compensate. If there is a breach of such provisions, then the
injured party shall be entitled, in addition to all other rights and remedies
which it may have at law or in equity, to have a decree of specific performance
or an injunction issued by any competent court, requiring the breach to be cured
or enjoining all persons involved from continuing the breach. The existence of
any claim or cause of action that a party (or any other person involved in the
breach) may have against the other party shall not constitute a defense or bar
to the enforcement of such provisions.
MSA0504 (Legal)
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MANAGED IT SERVICES EXHIBIT TO THE
MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
DATED MARCH 31, 2007
A. POLICIES AND SERVICES GUIDE
The services provided under this Exhibit shall at all times be used in
compliance with SunGard's then-current general policies and guidelines ("General
Policies") and the policies and guidelines of SunGard's underlying
telecommunications providers ("Network Policies") (collectively, the General
Policies and Network Policies are sometimes herein referred to as "Policies").
All Policies, inducing change management policies and procedures, and additional
detail regarding the specifications of the service offerings, are set forth in
SunGard's Services Guide, which is available to Customer at
xxxx://xxx.xxXxxXxxx.xxx. In addition, all implementation services which are
included as part of a service offering, are detailed in the Services Guide.
B. HOSTING SERVICES
1. SPACE
a. SunGard hereby grants to Customer the right to use the Space (as
defined in the Schedule) for the placement and maintenance of the
computer and communications equipment specified in the Schedule
("Equipment") which may be interconnected to the Network Services
offered by SunGards (as defined herein) or to other communications
carriers via facilities offered by SunGard. The Equipment and any
necessary software ("Software") may be provided by Customer
("Customer-provided Equipment" or "Customer-provided Software") or by
SunGard ("SunGard-provided Equipment" or "SunGard-provided Software")
as specified in the Schedule. Customer acknowledges that the Space
shall be used in accordance with the equipment vendor's specifications
for electrical, airflow, and clearance. If Customer desires to install
Equipment in the Space that exceeds the vendor specification(s),
SunGard reserves the right to require Customer to contract for
additional Space. This Exhibit does not create any interest in real
estate and is strictly an agreement for the provision of services,
which are personal in nature to the parties. The Monthly Fees and any
other fees in connection with Customer's use of the Space are set
forth in the Schedule. Customer's use of the Space shall not interfere
with any other SunGard customer's use of SunGard's facilities.
Customer represents and warrants that it has the full legal right (i)
to utilize any Customer-provided Equipment and Software, and (ii) to
obtain a maintenance contract thereon. The Equipment shall operate on
conditioned UPS-based electrical circuits with transparent and
immediate access to a backup power source capable of sustaining power
to the Equipment during any interruption to the primary power source.
b. SunGard shall perform such janitorial services, environmental systems
maintenance, power plant maintenance and other services as are
reasonably required to maintain the facility in which the Space is
located in good condition suitable for the placement of Equipment.
Customer shall keep the Space clear of all refuse, cardboard or any
potentially hazardous material. Customer shall maintain the Space in
an orderly and safe condition, and shall return the Space to SunGard
at the conclusion of the Agreed Term as defined in the Schedule in
the same condition (reasonable wear and tear excepted) as when such
Space was delivered to Customer. EXCEPT AS EXPRESSLY STATED HEREIN,
THE SPACE SHALL BE DELIVERED AND ACCEPTED "AS IS". THE SPACE SHALL BE
IN SECURE FACILITIES MONITORED TWENTY FOUR (24) HOURS PER DAY, SEVEN
(7) DAYS PER WEEK BY ON-SITE SECURITY STAFF, WITH CARD KEY ACCESS AND
CLOSED CIRCUIT TV MONITORING, FULL POWER REDUNDANCY. UPS AND DIESEL
GENERATOR CAPABILITY ("INFRASTRUCTURE"). Notwithstanding the
foregoing. Customer shall have the right to visit and inspect the
Space prior to accepting the Space. Any Schedule to this Exhibit that
includes new or additional Space shall not become effective until
Customer notifies SunGard in writing of its acceptance of the Space.
E-mail notification shall be sufficient notice for purposes of the
foregoing notice. SunGard represents that it will not materially
diminish such Infrastructure at the Designated Facility (as defined in
the Schedule) during the Agreed Term. At its sole risk and expense,
Customer shall be responsible for installation of the
Customer-provided Equipment and Software in the Space, unless Customer
elects to contract for Hardware and Software Installation Services as
set forth herein. If Customer elects to contract for Hardware and
Software Installation Services, then SunGard shall be responsible for
the installation of the Customer-provided Equipment and Software to
the extent provided herein. Upon termination or expiration of the
Schedule, Customer shall be responsible for removal of the Equipment
and Software from the Space within ten (10) business days of such
termination or expiration.
c. In addition to the Policies, Customer shall abide by any posted rules
relating to use of, access to, or security measures respecting the
Space. The Equipment shall be installed, operated, inspected,
maintained, repaired, replaced and removed only by qualified agents of
Customer who are properly licensed, if applicable, a list of whom
shall be provided to SunGard in advance of any such activity. Customer
shall not permit any liens to be placed against all or any portion of
the Space or any SunGard-provided Equipment or Software. Customer
shall not make any material alterations to the Space without the prior
written consent of SunGard. In the event that unauthorized parties
gain access to the Space through access cards, keys or other access
devices provided to Customer ("access devices"), Customer shall be
responsible for any damages incurred as a result thereof. Customer
shall be responsible for the cost of replacing any access devices lost
or stolen after delivery thereof to Customer.
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If Customer fails to pay SunGard any amounts due under a Schedule, and
such failure continues for more than thirty (30) days after receipt of
SunGard's written notice of nonpayment, included in SunGard's right to
terminate Customer's use of the Space is the right to disconnect and
remove any or all of the Equipment from the Space (including any data
or Software resident on such Equipment), and store any
Customer-provided Equipment in any reasonable location for a period
not to exceed six (6) months and assess Customer reasonable charges
for such storage. Upon conclusion of the six (6) month period, SunGard
may dispose of such Equipment without liability to Customer. SunGard
may redeploy any SunGard-provided Equipment in any manner in its sole
discretion. Any of Customer's data or Software resident on
SunGard-provided Equipment shall be removed, stored and disposed of in
the manner and for the period specified above for Customer-provided
Equipment. Exercise of any of the above rights by SunGard shall not
relieve Customer of any of its payment obligations under the
Agreement.
d. SunGard reserves the right to change the location or configuration of
the Space, at SunGard's sole expense, within the Designated Facility
or to another SunGard facility; provided, however, that SunGard shall
not arbitrarily or discriminatorily require such changes. SunGard and
Customer shall work in good faith to minimize any disruption to
Customer's Services that may be caused by such changes in location or
configuration of the Space. If the location of the Space is to be
moved to another SunGard facility, SunGard shall provide Customer with
at least ninety (90) days prior written notice of such relocation and
Customer shall have the right to (a) elect to be relocated to another
SunGard facility, or (b) elect to terminate the Schedule without
penalty. Customer shall provide SunGard with written notice of its
decision regarding the preceding sentence within thirty (30) days
after receipt of SunGard's notice.
e. Prior to Customer's occupancy, and during the term of Customer's use,
of the Space, Customer shall procure and maintain the following
minimum insurance coverage: (a) Workers' Compensation in compliance
with all applicable statutes of appropriate jurisdiction; Employer's
Liability with limits of $500,000 each accident; (b) Commercial
General Liability with combined single limits of $1,000,000 each
occurrence and $2,000,000 annual aggregate; and (c) "All Risk"
Property insurance covering the Customer-provided Equipment located in
the Space. Customer shall provide to SunGard a certificate of
insurance demonstrating that it has obtained the required insurance
coverage prior to Customer's occupancy of the Space. Upon request by
SunGard, Customer shall promptly notify SunGard of any material
changes or cancellation in the required insurance coverage. Customer
shall require any contractor entering the Space on its behalf to
procure and maintain the same types and amounts of insurance as set
forth in this section.
f. SunGard shall provide to Customer (including any of its employees,
agents and other authorized representatives as Customer may from time
to time reasonably designate in writing), access to the part of the
Designated SunGard Facility from which SunGard is providing the Space,
twenty-four (24) hours per day, seven (7) days per week, including
statutory holidays. All of Customer's designees shall adhere to
SunGard's Policies. Customer's access to the Space will be by escort
by an authorized SunGard employee.
g. SPACE OPTIONS - Customer may subscribe to any of the following options
available relating to Space: (i) Secure Cabinet; (ii) Secure
Half-Cabinet; (ii) Secure Space; (iv) Secure Cage; or (v) Secure
Suite.
(i) SECURE CABINET - The Secure Cabinet option includes 15 square
feet of Space to support a SunGard-provided full cabinet. The
Secure Cabinet will include: (i) a minimum of 42 U EIA rack space
for the Equipment; (ii) proper air ventilation for the Equipment;
(iii) two (2) stationary equipment shelves; (iv) a redundant 30
AMP power feed; and (v) security by lock and key, managed by
SunGard.
(ii) SECURE HALF-CABINET - The Secure Half-Cabinet option includes
Space to support a SunGard-provided half cabinet. The Secure
Half-Cabinet will include: (i) a minimum of 20 U EIA rack space
for the Equipment; (ii) proper air ventilation; (iii) a single
stationary Equipment shelve; (v) a redundant 20 AMP power feed;
and (v) security by lock and key, managed by SunGard.
(iii) SECURE SPACE - The Secure Space option includes the amount of
Space, in the square feet increments defined on the Schedule and
five (5) hours of Operational Support Services per month.
(iv) SECURE CAGE - The Secure Cage option includes the amount of Space
defined on the Schedule and: (i) perimeter metal fence with an
access door, (ii) security by lock and key, managed by SunGard;
and (iii) five (5) hours of Operational Support Services per
month.
(v) SECURE SUITE - The Secure Suite option includes the amount of
Space defined on the Schedule for the number of cabinets as set
forth on the Schedule. The Secure Suite includes: (i) perimeter
metal fence or perimeter walls with an access door; (ii) private
security with card key and pin code or by lock and key; and (iii)
ten (10) hours of Operational Support Services per month.
For Equipment that is not rack mountable, SunGard will provide adequate power,
based on manufacturer hardware specifications. Equipment capable of supporting
redundant power will be provided with redundant power feeds. If applicable, the
Space may be subject to power installation charges that will be specified on the
Schedule.
2. INSTALLATION SERVICES
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a. HARDWARE INSTALLATION SERVICES. SunGard shall provide Hardware
Installation Services for the number of devices set forth in the
Schedule. Hardware Installation Services include the one-time
installation of hardware devices and do not include on-going support.
Hardware Installation Services include: (i) the unpacking and
installation of the server equipment into 19" computer racks or
cabinets in accordance with hardware vendor recommendations and
Customer requirements; (ii) the installation of standard 20 amp AC
power, (iii) installation of network cables and cross-connects; and
(iv) floor cutouts, as necessary. Any additional electrical or
construction costs, as well as costs for racks or cabinets purchased
by SunGard as requested by Customer, will be passed through to
Customer at cost without surcharge.
b. SOFTWARE INSTALLATION SERVICES. SunGard shall provide Software
Installation Services for the specific software products set forth in
the Schedule. Software Installation Services include the one-time
installation of Customer-provided Software products (provided such
software products(s) are currently supported by the applicable
software vendor) and do not include on-going support except as
provided below. Software Installation Services also include: (i) the
installation of new software versions as provided by Customer; (ii)
the configuration and testing of the software parameters in accordance
with software vendor recommendations and Customer requirements; (iii)
the execution of software vendor verification scripts, if applicable;
(iv) the resolution of detected failures during the installation
process; and (iv) the restarting of any failed processes and/or
systems during the installation process. Software products and proof
of licensing must be provided to SunGard by Customer prior to
scheduled installation date.
3. SUPPORT AND MANAGEMENT SERVICES. Depending upon the specific Service(s)
selected from sections (a)-(h) below, Customer acknowledges the requirement to
have, as applicable, Customer-provided Equipment and Customer-provided Software
covered under a valid maintenance contract with the original equipment/software
manufacturer for 24 x 7 x 365 support with four (4) hour onsite response time in
order to be eligible for this Service. In the event that Customer elects to
contract for maintenance services with a vendor other than the original
equipment/software manufacturer. Customer is responsible for resolution of all
issues arising as a result thereof and associated obligations.
a. OPERATIONAL SUPPORT SERVICES. SunGard will provide Customer with
access to technical personnel to assist Customer on a 24 x 7 x 365
basis for the number of hours per month as set forth in the Schedule.
In the event that the Customer exceeds the number of hours indicated
on the Schedule in any month, Customer may then elect to have SunGard
attempt to resolve the problem on a time and materials basis at
SunGard's then prevailing hourly rate. Operational Support shall
include: (i) execution of a command or series of commands as directed
by Customer to determine operating status or to facilitate
configuration changes; (ii) enlisting of vendor support as requested
by Customer, (iii) visual inspection of Equipment including power up,
restart or reboot as directed by Customer; (iv) insertion and ejection
of media as directed by Customer. and (v) preparation of media for
pickup at the Designated Facility as requested by Customer. Customer
is responsible for providing all media, related materials, storage
containers and any off-site storage contract for the media.
b. EQUIPMENT MANAGEMENT SERVICES. SunGard shall provide Equipment
Management Services for the Equipment set forth on the Schedule.
Equipment Management Services include: (i) resolution of detected
Equipment failures; (ii) coordination of preventative maintenance;
(iii) installation of microcode or firmware upgrades; (iv) power
cycling or reboot; (v) issuance of software or firmware commands; and
(vi) physical inspection of all Equipment components. Further, with
respect to Customer-provided Equipment, Customer is responsible for
obtaining consent of the maintenance vendor in order for SunGard to
act as Customer's agent.
c. OPERATING SYSTEM MANAGEMENT SERVICES. SunGard shall provide Operating
System (OS) Management Services for those servers or partitions set
forth on the Schedule. Operating System Management Services include:
(i) the initial OS build on the server, (ii) OS patch maintenance,
including one (1) version upgrade per contract year, if available from
the vendor, and upon Customer request; (iii) resolution of detected OS
failures; (iv) OS configuration changes upon Customer request; (v)
configuration of OS level backups; and (vi) management of root
security access. Customer must provide SunGard with exclusive control
of root security access to be eligible for the Service Level
Commitment specified in Section I. Customer acknowledges that SunGard
will install utility software on the contracted OS in order for
SunGard to provide those Services.
d. DATABASE MANAGEMENT SERVICES. SunGard shall provide Database (DB)
Management Services for the number of servers and instances as set
forth on the Schedule. Database Management Services include: (i) the
initial DB build on the server; (ii) DB patch maintenance including
one (1) version upgrade per contract year, if available from DB
vendor, and upon Customer request; (iii) resolution of detected DB
failures; (iv) table compaction or reorganization upon Customer
request; (v) DB configuration changes upon Customer request and (iv)
management of DB security access in accordance with Customer-supplied
specifications.
e. OPERATING SYSTEM ASSIST SERVICES. SunGard shall provide Operating
System (OS) Assist Services for those servers or partitions as set
forth in the Schedule. Operating System Assist Services include the
following activities AS REQUESTED BY CUSTOMER AND FOLLOWING CUSTOMER
INSTRUCTIONS: (i) initial OS build on the server; (ii) OS patch
installation; (iii) assistance in resolution of detected OS failures;
(iv) OS configuration changes; and (v) configuration of OS level
backups. Customer acknowledges that SunGard will need to install
utility software on the contracted OS in order to provide this
Service.
f. DATABASE ASSIST SERVICES. SunGard shall provide database (DB) Assist
Services for the number of servers and instances as set forth in the
Schedule. Database Assist Services include the following AS REQUESTED
BY CUSTOMER AND WITH CUSTOMER
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INSTRUCTIONS: (i) the initial DB build on the server; (ii) DB patch
installation; (iii) assistance in resolution of detected DB failures; (iv)
table compaction or reorganization; (v) DB configuration changes; and (iv)
DB security changes.
g. SYSTEM UTILITY SERVICES. SunGard shall provide System Utility Services
for the specific operating system utilities set forth in the Schedule.
System Utility Services include: (i) Software Installation Services
(as defined below) for the utility software; (ii) releases and
maintenance uplifts and patches upon Customer request; utility
software patch maintenance upon Customer request; (iii) one (1)
version upgrade per contract year, if available from utility software
vendor and upon customer request; (iv) resolution of detected utility
software failures; (v) utility software configuration changes upon
Customer request; and (vi) management of root security access, if
applicable to the utility. This Service is only available for utility
software currently supported by SunGard.
h. PRODUCTION CONTROL SERVICES. SunGard shall provide Production Control
Services for the number of hours set forth in the Schedule. Production
Control Services support Customer-provided production jobs, tasks and
schedules. Production Control Services include: (i) altering of
schedules upon Customer request; (ii) monitoring schedules; (iii) and
responding to schedule failures as directed by Customer. This Service
is only available for production jobs that are managed with scheduling
software currently supported by SunGard.
C. NETWORK SERVICES
1. Network services include those network services and Internet Access Services
(as defined below) identified in a Schedule and as described below ("Network
Services"). Network Services shall be provided at the price specified in the
Schedule. The Network Services identified within the Schedule shall be made
available to Customer on an exclusive, 24-hour, 7-day per week basis (excluding
downtime attributable to previously scheduled routine and preventative
maintenance). All circuits will be connected between the entry point on the
SunGard network, as designated and coordinated by SunGard ("point of presence"),
and the Designated SunGard Facility set forth in the Schedule. If selected on a
Schedule, SunGard shall provide connectivity between the Customer location
specified in the Schedule to the point of presence.
2. Internet access services provide Customer with access to the Internet from
the Designated Facility specified in the Schedule ("Internet Access Services").
The Internet is not owned, operated or managed by, or in any way affiliated
with, SunGard or any of SunGard's affiliates. The Internet is an international
computer network of both Federal and non-Federal inter-operable packet switched
data networks. SunGard cannot and will not guarantee that the Internet Access
Services will provide Internet access that is sufficient to meet Customer's
needs. Customer agrees that its use of the internet is solely at its own risk
and is subject to all applicable local, state, national and international laws
and regulations ("Applicable Laws"). Customer represents and warrants that it
will comply with all Applicable Laws in its use of the Internet Access Services.
3. Customer hereby acknowledges receipt of SunGard's Network Policies and agrees
to comply with such Policies at all times while utilizing the Network Services.
Customer acknowledges that SunGard may from time-to-time revise its Network
Policies, which revisions will be communicated to Customer in writing, by
posting on SunGard's web site at xxxx://xxx.xxXxxXxxx.xxx or via email
notification. Customer also acknowledges that a breach of any of the Network
Policies may result in the termination of the Network Services if any such
breach is not cured within twenty-four (24) hours of SunGard's written notice of
such breach to Customer. SunGard shall have no liability to Customer for any
restriction or termination of the Network Services pursuant to Customer's
violation of the Network Policies.
4. Network addresses assigned from a SunGard IP network block are non-portable.
Network space allocated by SunGard must be returned to SunGard in the event
Customer discontinues Internet Access Services as defined in this Exhibit for
any reason, or upon expiration of the Schedule.
5. MANAGED INTERNET ACCESS SERVICES. Managed Internet Access Services provide
Customer with a dedicated IP connection of Committed Bandwidth Tier Level (as
defined on the Schedule) as selected by Customer. Customer can contract to burst
above the selected Committed Bandwidth Tier Level up to the Burstable Limit set
forth on the Schedule ("Incremental Burstable Limit"), subject to available
bandwidth on SunGard's network. Customer's selected Committed Bandwidth Tier
Level as well as the associated Incremental Burstable Usage Fees are specified
in the Schedule. Customer's monthly billing is based on the Committed Bandwidth
Tier Level and the actual level of sustained burstable usage ("Burstable
Usage"). An Incremental Burstable Usage Fee will be charged for each Mbp(s)
exceeding the contracted Committed Bandwidth Tier Level. All Incremental
Burstable Usage Fees are invoiced monthly in arrears. Customer's Burstable Usage
level is determined by traffic samples taken every five (5) minutes over the
course of a month. The traffic samples are ranked from highest to lowest with
the top five-percent (5%) discarded to account for temporary traffic bursts. The
level at which 95% of the samples fall, will be the Customer's Burstable Usage
for that month and will determine the Customer's total Incremental Burstable
Usage Fees. Burstable Usage will be determined based upon Customer's utilization
data as maintained by SunGard. In addition, Managed Internet Access Services
include domain name administration services for primary and/or secondary domain
names for Customer registered domains as specified in the Services Guide.
6. CIRCUIT PROVISIONING SERVICES. SunGard shall provide technical support to
assist Customer with provisioning third party telecommunication circuits.
Circuit Provisioning Services for SunGard-provided access include: (i)
assistance with provisioning dedicated third party circuits; (ii) monitoring and
management of circuits; (iii) Device Monitoring (as defined in this Exhibit);
and (iv) management of a SunGard-provided router. Circuit Provisioning Services
for Customer-provided access include: port connections from
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SunGard's network distribution center to Customer-provided Equipment within the
Space. Customer must complete a Customer-provided access form, before any
telecommunications circuits can be connected to Customer-provided Equipment
within the Space.
7. MANAGED CIRCUIT SERVICES. SunGard shall provide network management services
for the network termination equipment and circuit termination located at the
Customer premises and at the Designated SunGard Facility defined on the
Schedule. As part of Managed Circuit Services, SunGard will: (i) provide and
install the hardware; (ii) provision the circuits; (iii) provide 7x24
monitoring/management of the router and circuits; (iv) perform a physical
inventory of the router(s) and circuit termination equipment situated at the
Customer premises (such information will be maintained in SunGard's contract
information system); and (v) coordinate, as necessary, vendor maintenance with
respect to the circuit termination equipment.
8. LOCAL LOAD BALANCING SERVICES. SunGard shall provide Local Load Balancing
Services for the actual number of load balancer devices within a single
Designated SunGard Facility as set forth in the Schedule. Local Load Balancing
Services include: (i) Equipment Management Service; (ii) Device Monitoring;
(iii) load balancer policy configuration upon Customer request; and (iv)
resolution of load balancer problems. If Customer contracts for a redundant
local load balancer pair, SunGard shall provide dual local load balancer devices
configured to provide redundancy should one of the local load balancers fail to
operate.
9. GEOGRAPHIC LOAD BALANCING SERVICES. SunGard shall provide Geographic Load
Balancing Services for the actual number of load balancer devices situated
across multiple Designated SunGard Facilities as set forth in the Schedule.
Geographic Load Balancing Services include Equipment Management; Device
Monitoring; load balancer policy configuration upon Customer request; and
resolution of load balancer problems. If Customer contracts for a redundant
geographic load balancer pair, SunGard shall provide dual local load balancer
devices configured to provide redundancy should one of the geographic load
balancers fail to operate.
D. BUSINESS CONTINUITY SERVICES
1. Enterprise Storage Management Services. SunGard shall provide Enterprise
Storage Management Services for the amount of storage and in association with
the specific servers (target servers) set forth on the Schedule. Enterprise
Storage Management Services include: (i) initial installation of connectivity
between storage device and target server(s); (ii) initial allocation and
configuration of storage units to target servers in accordance with
Customer-provided instructions and documentation; and (iii) problem resolution
related to storage connectivity and storage device. If Customer has contracted
for OS Management Services for the target servers, then Enterprise Storage
Management Services shall also include: (i) the initial installation and
configuration of path management software; (ii) installation of storage
management software and related device driver software on target servers; (iii)
application of maintenance changes; and (iv) problem resolution of path
management software, storage management software and related device driver
software. Alteration of the storage allocations, the number of connections, the
number of target servers, or hardware and software replacements, will require an
upgrade to the affected Schedule prior to the service being rendered by SunGard.
If Enterprise Storage Management Services are provided through the SunGard
shared storage area network (SAN), the Services also include: (i) monitoring and
maintenance of SAN performance and capacity; (ii) SAN capacity upgrades; and
(iii) maintenance services for the storage device.
If Enterprise Storage Management Services are provided through dedicated and/or
Customer-provided storage devices, the Services shall include Equipment
Management Services for the associated storage devices. Customer acknowledges
that the specifications for the design of the storage device must include remote
connectivity capability to the hardware, software and network connectivity, as
SunGard will facilitate such changes through SunGard's management network.
Enterprise Storage Management Services are only available if SunGard supported
storage and network devices, servers, and adapters, as specified in the Services
Guide, are utilized in the solution. Enterprise Storage Management does not
include installation or support for volume management or volume replication
software.
2. MANAGED TAPE BACKUP SERVICES. SunGard shall provide Managed Tape Backup
services for the amount of storage, and in association with the specific servers
(target servers), as set forth in the Schedule. Managed Tape Backup Services
include: (i) initial connectivity between backup network and target servers;
(ii) installation of backup agent software on target servers; (iii)
configuration of daily backup schedules in accordance with Customer request;
(iv) execution of daily backup schedules; (v) retention of daily backups for 35
days; (vi) file restore from tape upon Customer request; and (vii) modifications
to the backup schedule upon Customer request. If Customer subscribes to Database
Management Services, SunGard will define and implement Database backup and
restore methodology as part of Database Management Services, otherwise Customer
acknowledges that Customer is responsible for the backup and restoration
methodology for databases.
SunGard will use all reasonable efforts to schedule backups within the Customer
identified back-up window(s). SunGard cannot guarantee that back-up schedule(s)
will be completed within Customer's desired back-up window(s) as backup times
are dependant on the number of files and the quantity of data to transfer. If
back-up schedules cannot be completed in Customers desired back-up window, a
customized solution may be required. A customized solution will require an
additional Schedule and a detailed Statement of Work, identifying any additional
hardware, software and service requirements.
Customer must provide one (1) dedicated network interface per target server, of
the type and capability as recommended by SunGard, for connectivity to backup
network. Customer agrees to provide SunGard with permanent administrative access
to all target servers
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requiring Managed Tape Backup Services. If the Customer-provided network
interface for the Customer production network does not also provide SunGard with
access to the target servers, Customer must provide an additional dedicated
network interface for connectivity to Subscriber's server(s).
3. BUSINESS RECOVERY SERVICES. Sungard shall provide Business Recovery Services
for the devices as set forth in the Schedule. The Services shall be as
delineated in a Statement of Work which will be attached to the applicable
Schedule. Business Recovery Services may include: (i) disaster recovery services
for the Equipment situated in the Space; (ii) maintenance of a disaster recovery
plan; (iii) coordination of one (1) annual disaster recovery plan test exercise;
and (iv) reasonable technical support during scheduled recovery tests, as
specified in the Statement of Work.
E. SECURITY SERVICES
1. MANAGED FIREWALL SERVICES. SunGard shall provide Managed Firewall Services
for the number of firewalls set forth on the Schedule and one (1) Virtual
Private Network (VPN) tunnel for each firewall. Managed Firewall Services
include: (i) Equipment Management Services; (ii) Device Monitoring; (ii)
firewall configuration based on Customer's written specifications; and
(iv) resolution of firewall problems. If Customer subscribes to dual firewalls
per device (i.e. router, server etc.), SunGard shall provide dual firewall
devices configured to provide redundancy should one of the firewalls fail to
operate.
2. MANAGED INTRUSION DETECTION SERVICES. SunGard shall provide Managed Intrusion
Detection Services (IDS) as set forth on the Schedule as Network IDS and/or Host
IDS. For Network IDS, the Services are provided for the number of IDS appliances
and network(s) as set forth in the Schedule. If multiple networks are to be
monitored, the network architecture must support routing across the networks
that are being monitored. For Host IDS, the Services are provided for the number
of servers as set forth in the Schedule. IDS includes: (i) installation and
configuration of IDS hardware and software; (ii) configuration of IDS rules;
(iii) resolution of IDS configuration problems; (iv) signature file appliance
and management; (v) monthly backup of Customer specified files; (vi) 24x7x365
intrusion monitoring and notification to Customer of detected intrusion alerts;
and (vii) a monthly report of IDS incidents.
3. MANAGED VULNERABILITY ASSESSMENT SERVICES. SunGard shall provide Managed
Vulnerability Assessment Services for the number of IP addresses set forth in
the Schedule. Managed Vulnerability Assessment Services are delivered over the
Internet or internally to scrutinize Customer's Internet facing OR internal
facing devices for security vulnerabilities. Managed Vulnerability Assessment
Services: (i) identify all visible perimeter and/or network devices and map all
underlying Customer network devices that are accessible from the Internet and
provide information about each device; (ii) characterize devices as access
gateways, routers, or other types of equipment, by machine type and operating
system; (iii) provide information, such as Customer network span and machine
names, and where possible, identifying information about private networks and
intranets; and (iv) identify all common TCP/IP services, such as HTTP servers,
SMTP servers, and telnet or SSH servers. Scans are conducted monthly or
quarterly on a date that is mutually agreed to between the parties. Customer
will be provided with a report which includes a summary of the security of the
network devices, including summary information about the scan, general network
information, specific host information, a list of detected vulnerabilities and
an executive overview that provides a global view of the security level of all
networks and IP addresses, and changes since the last scan.
4. PENETRATION TESTING SERVICES. SunGard shall provide Penetration Testing
Services for the IP address(s) set forth in the Schedule. Penetration Testing
Services include: (i) a semi-annual attempted penetration of the target IP
segments; (ii) potential discovery of vulnerabilities; and (iii) a report
detailing the results of the test.
Managed Intrusion Detection Services, Managed Vulnerability Assessment Services,
and Penetration Testing Services are provided, in part, by SunGard's designated
third party contractor.
F. MONITORING SERVICES
Monitoring Services include: (i) the implementation by SunGard of monitoring
rules provided by Customer for the requested device(s), database(s), platform(s)
or website(s); (ii) 24 x 7 x 365 monitoring of alerts generated by the
Monitoring Services; and (iii) notification to Customer of monitoring alerts
that may include a service impacting event (as defined in the Services Guide).
Customer agrees to complete and return all forms provided by SunGard so that
SunGard can implement the Monitoring Services. Monitoring Services are provided
within a measurement period ("polling period") whereby the monitoring system
detects resource availability or resource utilization. There may be occasions
when monitored resources reset completely within the polling period and
therefore may not be monitored during such reset period.
1. DEVICE MONITORING SERVICES. SunGard shall provide Device Monitoring Services
for the number of devices set forth in the Schedule. Device Monitoring Services
include the detection of the failure of a device(s) to respond. The frequency of
the polling of devices will be every five (5) minutes.
2. DATABASE MONITORING SERVICES. SunGard shall provide Database Monitoring
Services (DBMS) for the number of servers and the number of databases set forth
in the Schedule. Database Monitoring services include provision and installation
of a monitoring agent and monitoring of table-space utilization, DBMS logs and
DBMS related file systems. The frequency of polling will be every five (5)
minutes.
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3. PLATFORM MONITORING SERVICES. SunGard shall provide Platform Monitoring
Services for the number of servers and the number of operating system partitions
set forth in the Schedule. Platform Monitoring Services include provision and
installation of a monitoring agent, monitoring of CPU, memory, and system
utilization, as well as monitoring of IP port availability. The frequency of
polling will be - every five (5) minutes.
4. BASIC WEBSITE MONITORING SERVICES. SunGard shall provide Basic Website
Monitoring Services for the number of URLs set forth in the Schedule. Basic
Website Monitoring Services include the detection of HTTP error codes as further
described in the Services Guide and URL failure to respond to an HTTP GET
request within a specified threshold. The frequency of the polling of URLs will
be every five (5) minutes.
5. ADVANCED WEBSITE MONITORING SERVICES. SunGard shall provide Advanced Website
Monitoring Services for the number of transactions set forth in the Schedule.
Advanced Website Monitoring Services include the development of a specific URL
sequence as a synthetic user; and the detection of transaction failures as
developed. Transactions may include up to five (5) discrete steps. The polling
frequency of the actual transaction(s) will be determined during transaction
development. Customer agrees to provide a technical contact to assist SunGard in
the development of each transaction.
6. WEBSITE REPORTING SERVICES. SunGard shall provide Website Reporting Services
for the number of URLs set forth in the Schedule. Website Reporting Services
include streaming media and proxy server traffic analysis and content navigation
assessment including link analysis using industry standard website performance
monitoring tools.
G. PROBLEM RESOLUTION
1. DETECTION, NOTIFICATION AND DIAGNOSIS. Within fifteen(15) minutes of
SunGard's determination that there has been a service impacting event, SunGard
will notify Customer of the problem (unless SunGard was first notified by
Customer). If the service impacting event is associated with a device(s) for
which Customer has contracted with SunGard for Equipment Management Services,
then SunGard shall immediately engage then-available technical support to assist
in problem diagnosis. If the appropriate technical support resource has not been
assigned to problem analysis within fifteen (15) minutes of problem
determination, escalation to the next level of Technical Services Management (as
defined in the Services Guide) occurs, culminating with escalation of the
problem to the Vice President of Operations at the Designated SunGard Facility
in accordance with SunGard's standard operational procedures.
2. RESOLUTION OF SERVICE IMPACTING EVENT. As necessary, following the detection
and notification to Customer of a service impacting event associated with a
device for which Customer has contracted with SunGard for Equipment Management
Services, if the problem has resulted in a service outage, SunGard will continue
to escalate the problem internally until the service is restored. If the service
is not restored within thirty (30) minutes of determination, escalation to the
Technical Services Manager and Customer Services occurs. If the service is not
then restored within sixty (60) minutes, escalation to the Technical Services
Director occurs. If the service is not then restored within ninety (90) minutes,
escalation to Vice President of Operations occurs. SunGard shall provide
continuous support to Customer in accordance with the terms of the Agreement for
problem resolution until the service has been restored. As necessary, SunGard
shall coordinate with the applicable maintenance vendor to facilitate resolution
of the issue.
H. TRANSITION SERVICES
Upon expiration/cancellation of a Schedule to this Exhibit for any reason other
than due to an uncured material breach by Customer, and provided Customer is not
in default of its payment obligations under the applicable Schedule, SunGard
shall provide Customer with reasonable and orderly transition services and
information and documentation that reasonably may be needed by Customer in
connection with the orderly and expeditious transition of the Services
("Transition Services"). The Transition Services shall be provided for a period
of up to one hundred twenty (120) days, provided Customer continues to make
timely payments of the Monthly Fees attributable to all Schedules to the
Agreement.
I. SERVICE LEVEL COMMITMENTS
1. INTERNET ACCESS AVAILABILITY.
- GUARANTEE - SunGard guarantees that during any calendar month, its
Internet protocol network utilized to access the Internet from the
Designated SunGard Facility will have availability of 99.99% for
Customer to transmit to, and receive information from, the Internet.
- DEFINITION - "Internet availability" is defined as the ability to
route a data packet from Customer's environment located within a
cabinet or suite in the Space, to the egress point to the public
Internet.
- MEASUREMENT - SunGard will measure availability of the SunGard
Internet protocol network by computing the total number of successful
performance measurements between agents as a percentage of the total
number of attempts between agents. "Agents" are defined as passive
devices that are located in every SunGard hosting facility. Network
error conditions are considered "failed attempts". Measurements will
be posted to SunGard's web site at xxxx://xxx.xxXxxXxxx.xxx.
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- REMEDY - If SunGard fails to provide Internet access in accordance
with the Guarantee, then Customer is entitled to a credit of one (1)
day's Service Fee for the Services on the applicable Schedule. If
Customer exceeds eight (8) or more cumulative full hours of
unavailability during a calendar month, Customer shall be issued a
total credit of one (1) month's Service Fee under the applicable
Schedule for the calendar month in which SunGard failed to meet the
Internet Access Availability Guarantee.
2. LATENCY.
- GUARANTEE - SunGard guarantees that the average round trip latency
between any two agents within SunGard's Internet protocol network will
not exceed an average of 75 milliseconds in North America during any
calendar month.
- DEFINITION - Latency is defined as the round trip time it takes for a
data packet to travel between two agents within SunGard's Internet
protocol network. "Agents" are defined as passive devices that are
located in every SunGard hosting facility. Each agent is placed on
that hosting facility's network infrastructure to take measurements
across the SunGard Internet protocol network.
- MEASUREMENT - SunGard will measure latency by averaging sample
measurements taken during the prior calendar month between agents on
SunGard's Internet protocol network. SunGard records the packet
measurement based on the time in milliseconds that it takes to send a
data packet and to receive the acknowledgement of that data packet.
Measurements shall be posted to SunGard's web site at
xxxx://xxx.xxXxxXxxx.xxx.
- REMEDY - If SunGard's average monthly latency is greater than the
Guarantee above, then Customer is entitled to a credit of one (1)
day's Service Fees for the applicable Schedule for the calendar month
in which SunGard failed to meet the average trip Latency Guarantee.
3. PACKET DELIVERY.
- GUARANTEE - SunGard guarantees a monthly average success rate of 99%
for packet delivery through SunGard's Internet protocol network.
- DEFINITION - "Unsuccessful delivery" is defined as packets dropped due
to transmission errors or router overload before exiting the SunGard
Internet protocol network.
- MEASUREMENT - SunGard shall measure packet loss by the number of
re-transmitted data packet requests. All data packet retransmits are
assumed to be due to a lost packet. Daily measurements will be summed
and then divided by thirty (30) to calculate a monthly average.
Measurements will be posted to SunGard's web site at
xxxx://xxx.xxXxxXxxx.xxx.
- REMEDY - If SunGard's average successful monthly packet delivery is
less than 99%, then Customer is entitled to a credit of one (1) day's
Service Fees for the applicable Schedule for the calendar month in
which SunGard failed to meet the monthly Packet Delivery Guarantee.
4. POWER.
- GUARANTEE - SunGard guarantees 100% power availability in all of the
fully hardened SunGard facilities.
- DEFINITION - Provision of uninterrupted power to the Designated
SunGard Facility infrastructure and to the Equipment located within
the Designated SunGard Facility in accordance with equipment
manufacturer's specifications. Customer will be provided with dual
power feeds via physically diverse power distribution units.
Customer's Equipment must support multiple redundant power feeds or
integrate a static switch which will provide redundancy to a single
fed piece of Equipment, in order to qualify for the Guarantee.
- MEASUREMENT - Power availability is measured as the unscheduled time
that the SunGard-provided dual power feeds were simultaneously
unavailable.
- REMEDY - If power is unavailable as a result of SunGard's actions or
inactions, such that Customer's Services are interrupted, then
Customer is entitled to a credit of one (1) day's Service Fees for the
applicable Schedule for each incident. If Customer exceeds eight (8)
or more cumulative full hours of unavailability during a calendar
month, Customer shall be issued a total credit of one (1) month's
Service Fee under the applicable Schedule for the calendar month in
which SunGard failed to meet the Power Availability Guarantee.
5. SERVER AVAILABILITY.
- GUARANTEE - The servers for which Customer has contracted with SunGard
for each of the following services: Equipment Management Services;
Operating System Management Services; and Platform Monitoring Services
(hereinafter referred to as "the System") shall be operational and
available to Customer 99.9% of the time during the Agreed Term of the
Schedule. The System
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includes the Equipment and the operating system situated thereon and
does not include the network infrastructure connected to the server.
- MEASUREMENT - System Availability will be measured utilizing internal
monitoring software to measure the availability of Customer's System.
The System shall be deemed available if the System is responsive to
standard ICMP or SNMP requests.
- REMEDY - If during any three (3) month period, System Availability for
two (2) months (consecutive or non-consecutive) falls below the
applicable percentage as an average for the month, SunGard will credit
Customer ten percent (10%) of the then current Monthly Fee for the
affected Schedule, for each of the two months during which the Service
Level was not met.
6. NETWORK HARDWARE AVAILABILITY.
- GUARANTEE - Network hardware components which are provided by SunGard
to facilitate Local Load Balancing Services, and/or Geographic Load
Balancing Services which are configured in a redundant configuration,
wherein all single points of failure have been eliminated, shall be
operational and available to Customer 99.99% of the time during the
Agreed Term of the Schedule. Notwithstanding the foregoing, for all
network hardware provided by SunGard in which the hardware is
configured in a single architecture, SunGard commits that associated
network hardware shall be operational and available to Customer 99.5%
of the time during the Agreed Term of the Schedule.
- MEASUREMENT - SunGard shall monitor the network hardware and the
network devices shall be polled every 5 minutes via a standard ICMP or
SNMP poll.
- REMEDY - If during any three (3) month period, network hardware
availability for two (2) months (consecutive or non-consecutive)
falls below the applicable Guarantee percentage as an average for the
month, SunGard will credit Customer ten percent (10%) of the then
current Monthly Fee for the affected Schedule, for each of the two
months during which the Service Level was not met.
7. NOTIFICATION.
- GUARANTEE - SunGard shall notify Customer, in the manner as set forth
herein and in SunGard's Services Guide within fifteen (15) minutes
after SunGard has determined that Customer's Equipment/Services are
unavailable.
- REMEDY - SunGard shall credit Customer one (1) day's Service Fees for
the applicable Schedule for the calendar month in which SunGard fails
to meet the Notification Guarantee, which will not exceed eight (8)
one (1) day credits per calendar month. In the event that Customer
notifies SunGard regarding unavailability of Equipment/Services, this
remedy is not operational.
8. REMEDIES GENERAL.
If SunGard fails to meet a defined Service Level during the Agreed Term of the
Schedule, as Customer's sole monetary remedy, Customer shall be entitled to
receive the credits as reflected herein by Service Level. Failure to meet the
same Service Level three (3) times in any contract year shall entitle Customer
the right to terminate the applicable Schedule upon ninety (90) days prior
written notice to SunGard. In no event will the total credits for any occurrence
exceed Customer's then current Monthly Fee for the applicable Schedule.
SunGard shall not be responsible for the failure to meet a Service Level if the
failure is caused by: (a) the breach of the Agreement or this Exhibit by
Customer; (b) the negligence or intentional acts or omissions of Customer or its
employees or agents; (c) Equipment malfunction (provided said Equipment has been
maintained by SunGard in accordance with the terms of the Agreement); or (d)
"Software Failure" as defined in the Agreement. In addition, any scheduled
maintenance (including upgrades, repair or component replacement or scheduled
backups) or other mutually agreed-to downtime shall not be included in
calculating any Guarantee has been met. (Collectively all of the above shall be
referred to as "Exceptions"). In addition, the Guarantees do not include any
downtime as a result of: (a) Customer-made changes to applications or data; (b)
Customer retaining ROOT or ADMIN privileges; (c) Customer requiring SunGard to
maintain, or continue to run unsupported software or hardware releases; (d)
Customer refusing SunGard maintenance changes for any reason: or (e) Customer
retaining access control to the devices for which SunGard is providing the
Services.
MIT0504 (Legal)
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RECOVERY SERVICES EXHIBIT
TO THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
DATED MARCH 31, 2007
A. RECOVERY SERVICES. Each Schedule to this Master Agreement specifies a
Customer location ("Location"), the recovery services to be provided by SunGard
to Customer for that Location ("Recovery Services"), the fees to be paid by
Customer to SunGard for those services, and any other applicable terms.
1. DISASTER. A "Disaster" is any unplanned event or condition that renders
Customer unable to use a Location or the equipment situated there for its
intended computer processing and related purposes. By signing or amending a
Schedule, Customer warrants that the Location specified in that Schedule is
not at that time experiencing a Disaster. Customer may declare a Disaster
by having one of its designated representatives give notice to SunGard
stating that a Disaster occurred, identifying the affected Location, and
specifying which Recovery Services Customer believes will be required.
SunGard will then follow Customer's reasonable declaration procedures as
provided to SunGard in the Disaster Declaration Authority form.
2. SELECTED SERVICES. Whenever Customer declares a Disaster, the Recovery
Services to be provided by SunGard to Customer shall be the following
services which were selected by Customer in the applicable Schedule:
(a) CENTER-BASED RECOVERY SERVICES. Immediate and exclusive use of the
services described below ("Center-Based Recovery Services"), which
Customer may use during the period of time stated below, provided at a
SunGard facility:
(i) HOTSITE. An installed, fully operational computer system and
networking capability ("Hotsite"), equal to or better than (in
all material respects including equipment quality and processing
capacity) the Hotsite Configuration described in the Schedule,
which Customer may use for six (6) weeks.
(ii) COLDSITE. Environmentally prepared computer space ("Coldsite"),
properly equipped to facilitate the installation of a computer
system comparable to the Hotsite Configuration, which Customer
may use for six (6) months.
(iii) OFFICE SPACE. An adequate and reasonable amount of office space
in the same facility where the Hotsite or Coldsite is located,
properly equipped to facilitate the installation of terminals,
which Customer may use to operate that Hotsite or Coldsite.
(iv) WORK GROUP SPACE. An adequate and reasonable amount of office
space, properly equipped to accommodate the Work Group
Configuration described in the Schedule, which Customer may use
for six (6) weeks.
(v) MEGAVOICE.(SM) SunGard's voice communications backup service for
the number of communications ports stated in the Schedule, which
Customer may use for six (6) weeks.
(b) MOBILE RECOVERY SERVICES. Immediate and exclusive use of the services
described below ("Mobile Recovery Services"), which Customer may use
for the duration of a Disaster:
(i) REPLACEMENT RECOVERY SYSTEM. A fully operational, relocatable
computer system and networking capability ("Replacement Recovery
System"), equal to or better than (in all material respects
including equipment quality and processing capacity) the Mobile
Configuration described in the Schedule, to be provided to
Customer by one of the following methods at Customer's option:
a. PRIMARY RECOVERY FACILITY. Access to the Replacement
Recovery System at a SunGard facility where it is then
installed.
b. ALTERNATE RECOVERY FACILITY. Delivery of the Replacement
Recovery System to a SunGard facility where it may be
accommodated, within forty-eight (48) hours after SunGard
receives the Disaster declaration notice.
c. MOBILE DATA CENTER. Delivery of a properly equipped vehicle
housing the Replacement Recovery System to a destination in
the continental United States requested by Customer, within
forty-eight (48) hours after SunGard receives the Disaster
declaration notice.
d. CUSTOMER FACILITY. Delivery of the Replacement Recovery
System to a properly equipped facility located in the
continental United States requested by Customer, within
forty-eight (48) hours after SunGard receives the Disaster
declaration notice.
(ii) COMPUTER SPACE. Environmentally prepared computer space
("Computer Space"), properly equipped to facilitate the
installation of a computer system comparable to the Mobile
Configuration, to be provided to Customer by one of the following
methods at Customer's option:
a. SUNGARD FACILITY. Access to the Computer Space at a SunGard
facility where the Replacement Recovery System may be
accommodated.
b. MOBILE COLDSITE. Delivery of a properly equipped vehicle
housing the Computer Space to a destination in the
continental United States requested by Customer, within
forty-eight (48) hours after SunGard receives the Disaster
declaration notice.
(iii) SUPPLEMENTAL OFFICE SPACE. An adequate and reasonable amount of
office space in the same SunGard facility where the Replacement
Recovery System or Computer Space is located, properly equipped
to facilitate the installation of terminals, which Customer may
use to operate that Replacement Recovery System or Computer
Space.
(iv) MOBILE WORK GROUP SPACE. SunGard will commence the delivery of a
vehicle properly equipped to accommodate the Mobile Work Group
Configuration described in the Schedule, to a destination in the
continental United States requested by Customer, within
twenty-four (24) hours after SunGard receives the Disaster
declaration notice.
(v) QUICK SHIP EQUIPMENT. Delivery of equipment equal to or better
than (in all material respects including equipment quality and
processing capacity) the Quick Ship Equipment described in the
Schedule, to a properly equipped facility in the continental
United States requested by Customer, within forty-eight (48)
hours after SunGard receives the Disaster declaration notice.
(c) NETWORK SERVICES. Use, within two (2) hours after SunGard receives the
Disaster declaration notice, of the network services described below
("Network Services"), which Customer may use for six (6) weeks:
(i) CENTER TO CENTER. On-demand connectivity among SunGard facilities
using the SunGard Global Network ("SGN") in accordance with the
Network Configuration described in the Schedule.
(ii) DEDICATED CIRCUIT. Dedicated connectivity between the Customer
location described in the Schedule and the SunGard facility or
SGN POP (point of presence) described in the Schedule, using a
dedicated circuit that is either (a) procured and installed by
SunGard or (b) procured and installed by Customer with
installation management assistance from SunGard.
(iii) NET REDIRECT SERVICES. On-demand connectivity between the SGN
POP where the Customer's local circuit terminates and the SunGard
facility described in the Schedule, which are designated as "Net
ReDirect Metropolitan Services" when the SGN POP and SunGard
facility are located in the same metropolitan area.
(iv) IP REDIRECT SERVICES. On-demand, point-to-point or
point-to-multipoint, Internet Protocol (IP) connectivity between
the IP-enabled SGN POP where Customer is accessing the SGN and
the IP-enabled SunGard facility described in the Schedule, with
such connectivity delivered using a single Ethernet interface
directly attached to a router at the Customer Location procured
by either SunGard or Customer.
(v) FRAME RELAY OR ATM PORT. On-demand use of a frame relay or ATM
port on the SGN as described in the Schedule, to provide
connectivity between Customer's frame relay or ATM network and
the SGN. Customer shall be responsible for all costs and all
necessary telecommunications vendor notifications and
communications attributable to Customer's re-direction of
Customer's frame relay/ATM permanent virtual circuit(s) to the
SunGard frame relay or ATM DRO port.
(vi) WEB REDIRECT SERVICES. On-demand access to the Internet from the
SunGard facility described in the Schedule, using any of the
multiple Internet service providers under contract with SunGard
(which may require Customer to set up domains to use the Web
ReDirect Services).
3. EXTENDED USE. During a Disaster, Customer may continue to use the
Center-Based Recovery Services or the Network Services beyond the periods
stated in Section A2(a) and A2(c), respectively, provided that this
extended use shall be subject to immediate termination if and when any
other customer declares a disaster and requires use of the Recovery
Resources then being utilized by Customer.
4. COMPREHENSIVE DISASTER RECOVERY SUPPORT. WHENEVER CUSTOMER USES RECOVERY
SERVICES DURING A DISASTER, SUNGARD'S SUPPORT STAFF (CONSISTING OF
OPERATIONS, COMMUNICATIONS, SECURITY, TRANSPORTATION, SYSTEMS SOFTWARE AND
CUSTOMER SUPPORT PERSONNEL, AS APPROPRIATE) SHALL PROVIDE COMPREHENSIVE
SUPPORT TO CUSTOMER ON A 24-HOUR-A-DAY, 7-DAY-A-WEEK BASIS, AS NEEDED.
During a Disaster, SunGard's Support Staff also shall assist Customer in
contacting vendors and in obtaining replacement equipment.
5. TESTS. Promptly after execution of this Master Agreement, SunGard shall
either notify Customer of available times to schedule a training workshop
at a SunGard facility or provide instructions to Customer to conduct a
computer based training workshop. Customer may use certain Recovery
Services to test its disaster recovery capability ("Test") for the number
of Test Periods stated in the applicable Schedule. Each Test Period
entitles Customer to eight (8) hours
of consecutive test time per contract year at a designated SunGard
facility, on a non-cumulative basis. During each Test, Sungard's Support
Staff shall provide reasonable supplies and support to Customer as needed,
subject to availability. In order for SunGard to provide support to
Customer for a scheduled Test, all Test plans must be provided to SunGard
at least three (3) weeks prior to the Test date. Upon receipt of Customer's
Test plan, SunGard will then assign a SunGard technical coordinator to
review Customer's Test plan and coordinate Test support activities.
Customer shall schedule Tests at least four (4) months in advance. Test
time is available on a 24-hour-a-day, 7-day-a-week basis. Any Test
Period(s) cancelled by Customer less than 45 days before the scheduled date
will be applied against Customer's annual allotment of Test Periods, unless
SunGard is able to utilize the cancelled time to provide test time to
another customer. All Tests shall be subject to immediate cancellation or
termination by SunGard, and shall be rescheduled as soon as possible, if
and when any other customer declares a disaster and requests use of the
Recovery Services being tested.
6. E-TESTING PROGRAM. Customer may, at its option, elect to participate in
SunGard's E-Testing Program. The E-Testing Program is a web-based service
designed by SunGard to facilitate efficiency of pretest communications, by
allowing Customer to complete and submit Test plans online for any
scheduled Test. Customer shall use the E-Testing Program only for its own
internal purposes in testing certain Recovery Services with SunGard.
Periodically, in its sole discretion, SunGard may change or discontinue the
E-Testing Program. SunGard shall not be liable for any damages incurred by
Customer as a result of Customer's access to, use of, or retrieval of
Customer's Test plans, including damages caused by any viruses. SunGard
represents that it shall not knowingly code or introduce any virus or other
disabling code into the systems used to provide the E-Testing Program or
Customer's Test plan. SunGard shall use commercially reasonable efforts to
assist Customer, at no charge, in mitigating the effects of any virus that
is coded or introduced into the system.
7. TEST SERVICES. SunGard's testing services are designed to provide reliable
and repeatable Test services for operating system, application and data
restorations ("Test Services") while Customer is using the Recovery
Services for a Test. Whenever Customer schedules a Test of the Recovery
Services, the Test Services provided by SunGard to Customer shall the Test
services selected by Customer for the configurations identified in the
applicable Schedule or Addendum.
8. SOFTWARE. All systems and utility software which SunGard has installed on
the equipment used to provide the Recovery Services may be used by Customer
during a Disaster or a Test.
9. TECHNOLOGY EXCHANGE. Upon Customer's request, SunGard will provide a list
of computer and communications equipment that is then currently available
to enhance the Recovery Services. Customer may exchange certain components
of its configuration for hardware representing newer technology, by giving
written notice to SunGard and signing an appropriate Addendum to the
applicable Schedule. Upon the effective date of this exchange, the Monthly
or Annual Fees due under that Schedule may increase by an amount reasonably
determined by SunGard, based upon the difference between (a) SunGard's then
prevailing Monthly or Annual Fees for the new hardware selected, and (b)
the portion of the prior Monthly or Annual Fees covering the components
that were replaced.
10. ACCOUNT EXECUTIVE. SunGard shall assign an Account Executive to Customer to
assist in monitoring the continued viability of Customer's disaster
recovery capability and to facilitate ongoing communications between
Customer and SunGard.
11. HOTLINE. SunGard shall maintain a toll-free customer support telephone
service, on a 24-hour-a-day, 7-day-a-week basis, which Customer may use as
needed.
12. USER GUIDE. Customer shall receive on-line access to SunGard's current User
Guide for the Recovery Services and all applicable updates and revisions,
as and when issued. Access is available at xxxx://xxx.xxxxxxxxx.xxx.
13. ACTIVATION MANUAL. Customer may select in the Schedule to receive an
Activation Manual. If Customer does so, then SunGard will prepare and
deliver to Customer, within 120 days after the Schedule is signed by
SunGard, an Activation Manual that will serve as a guideline for Customer's
use of the Mobile Data Centers and will contain placement recommendations,
vendor contact information, and electrical and communication requirements.
SunGard's obligation to prepare and provide the Activation Manual is
subject to Customer's reasonable cooperation and the availability of key
Customer personnel to assist with the preparation of the Activation Manual.
B. MAINTENANCE AND USE OF RECOVERY RESOURCES. The terms of this Section B are
intended to ensure that the facilities, equipment, network and other resources
used by SunGard to provide the Recovery Services ("Recovery Resources") are
properly maintained and used, and to protect the respective interests of the
parties in using the Recovery Resources.
1. MAINTENANCE. SunGard shall maintain vendor-specified proper operating
environments at its facilities and in its vehicles used to provide the
Recovery Services. SunGard shall adhere to vendor-recommended procedures
and policies for proper maintenance of the Recovery Resources, including
necessary remedial maintenance and regularly scheduled preventive
maintenance. SUNGARD WARRANTS TO CUSTOMER THAT THE RECOVERY RESOURCES SHALL
BE MAINTAINED IN A STATE OF
READINESS AT ALL TIMES, CONSISTENT WITH SUNGARD'S OBLIGATIONS UNDER THIS
MASTER AGREEMENT.
2. SIGNIFICANT CHANGES. SunGard may change the Recovery Resources and shall
give written notice to Customer at least 60 days before making any
significant change that might substantially and adversely impact Customer.
Customer shall then have an adequate and reasonable number of free
additional Test Periods to Test the affected Recovery Services. If, in
Customer's reasonable judgment, any such change substantially and adversely
impacts Customer to the extent that Customer cannot use the affected
Recovery Services, then Customer may terminate the affected Recovery
Services by giving written notice to SunGard within ten (10) days after
Customer first uses the affected Recovery Services for either a Disaster or
Test.
3. AUDITS. At any time except when the Recovery Resources are being used
during a disaster or a confidential test, Customer may, at its expense,
audit the Recovery Resources to verify SunGard's compliance with this
Master Agreement. SunGard also shall permit any regulatory authority having
jurisdiction over Customer to inspect the Recovery Resources. SunGard
shall, at its expense, have the Recovery Resources annually reviewed by an
independent third-party auditor, whose reports shall be furnished to
Customer upon request.
4. STANDARD PROCEDURES. SunGard shall maintain reasonable and uniform policies
regarding security, safety, operations and other procedures for accessing
and using the Recovery Resources during disasters and tests. In the case of
network resources, these policies ("Network Policies") incorporate the
policies, rules and regulations of SunGard's underlying network and
Internet service providers. All of these policies are included in SunGard's
on-line User Guide and in other written documents provided by SunGard to
its Customers from time to time. Both SunGard and Customer shall comply
with these policies in all material respects and shall use all Recovery
Resources in accordance with manufacturer specifications. Before the
conclusion of any Test or Disaster, Customer shall remove, erase or destroy
all Customer Confidential Information it maintained in any form, recorded
on any medium, or stored in any storage system as part of its use of the
Recovery Services.
5. SPECIAL PROCEDURES. If Customer gives written notice to SunGard describing
any special data protection or other security procedures used by Customer,
then SunGard shall use commercially reasonable efforts to help implement
those procedures whenever Customer is using the Recovery Resources.
Customer shall be responsible for any additional expenses reasonably
incurred by SunGard in implementing Customer's special procedures.
6. MOBILE RESOURCES. Title to all of the Recovery Resources used to provide
Mobile Recovery Services ("Mobile Resources"), wherever located, shall
remain in SunGard or its supplier, except for any Quick Ship Equipment as
to which Customer properly exercises its purchase option, if any, described
in the applicable Schedule. With respect to any Mobile Resources for which
the destination is not a SunGard facility, (a) Customer shall obtain or
provide, at Customer's expense, all permits, landlord consents and other
authorizations, and all communications, power and other utility lines and
equipment, needed to possess, locate or use the Mobile Resources at that
destination, (b) Customer shall be responsible for the security of the
Mobile Resources at that destination, (c) with respect to any SunGard
vehicle, Customer shall provide a suitable location for SunGard to park the
vehicle (which location SunGard may disapprove in its reasonable
discretion), (d) Customer shall not relocate the Mobile Resources without
SunGard's prior written consent which will not be unreasonably withheld,
(e) when Customer's use or right to use the Mobile Resources during a
Disaster or Test ends, Customer shall comply with SunGard's return delivery
or shipment instructions, and (f) if the Mobile Resources do not include a
SunGard vehicle, then Customer shall provide a proper operating environment
for the Mobile Resources.
7. NETWORK RESOURCES. SunGard shall privately manage the SGN as a
protocol-independent, multi-layer network. After Customer has been switched
onto the SGN, the applicable Network Services will be available on a
24-hour-a-day, 7-day-a-week basis excluding downtime attributable to
routine and preventative maintenance. Dedicated circuits connecting
Customer locations to SunGard facilities or SGN POPs are provided by third
parties and do not constitute Recovery Resources. The Network Services are
provided subject to the availability of the necessary services by SunGard's
underlying network and Internet service providers. SunGard may, without
penalty, and by providing Customer with thirty (30) days prior written
notice, terminate any Schedule or withhold provision of the Network
Services if: (a) SunGard's underlying network and Internet service
providers withdraw or substantially alter any underlying tariff(s)
resulting in a material, adverse effect on SunGard's operational or
financial ability to provide the Network Services; or (b) any public
utility commission or other regulatory authority asserts jurisdiction over
the Network Services, such that SunGard would be required to submit to
common carrier, public utility or other regulation to which SunGard is not
now subject.
8. FEES AND EXPENSES. Customer shall be responsible for (a) any applicable
Disaster Fees as indicated on a Schedule, (b) all communications and
similar third party charges resulting from Customer's use of the Recovery
Resources, (c) all power, fuel and other utility charges resulting from
Customer's use of the Recovery Resources, except the initial six weeks of
Hotsite use and except for Tests, (d) all costs associated with the
transportation, delivery, operation and ongoing support of Mobile Resources
used by Customer, and (e) all costs associated with the installation and
de-installation of Mobile Resources used by Customer at non-SunGard
locations.
C. MULTIPLE DISASTER. Customer's rights of immediate and exclusive use of the
Recovery Services, as provided in Section A2, shall be subject to the
possibility that one or more other customers ("other affected customers") could
declare a disaster at the same time as (or before or after) Customer and require
use of the same Recovery Resources at the same time
as Customer ("Multiple Disaster"). The following provisions are intended to
avoid or minimize contention for Recovery Resources during Multiple Disasters.
1. PRIORITY RESOURCES AND SHARED RESOURCES. All Recovery Resources shall be
available on a priority use basis ("Priority Resources") except for those
designated by SunGard as available on a shared use basis ("Shared
Resources"). SunGard's designations of Shared Resources shall be made in
its reasonable discretion and shall be subject to change without notice.
2. ACCESS AND USE PROCEDURES. Access to and use of Recovery Resources during
disasters shall depend upon whether the Recovery Resources are Priority
Resources or Shared Resources and, with respect to Priority Resources, the
order in which disasters are declared. SunGard shall maintain records of
its receipt of disaster declarations, which shall be the exclusive basis
for determining the order in which disasters are declared.
(a) Customer shall have priority rights of access to and use of applicable
Priority Resources that are not then being used by other affected
customers who previously declared disasters. Use of such Priority
Resources is exclusive for as long as Customer is entitled to use them
under Section A2.
(b) Customer and all other affected customers shall have equal rights of
access to and use of applicable Shared Resources, irrespective of the
order in which disasters occur or are declared. Use of Shared
Resources may be exclusive at times, but remains subject to the
possible need for shared or allocated use with other affected
customers. In an effort to avoid the need for shared or allocated use
of any Shared Resources, SunGard shall, to the fullest extent possible
under the circumstances, take full advantage of, and provide access
to, all of its other available Shared Resources.
(c) If applicable Priority Resources and applicable Shared Resources are
both available, Customer may choose which type to use.
(d) Customer shall cooperate with SunGard and all other affected customers
as reasonably required under the circumstances, including to
coordinate the efficient use of Recovery Resources, to avoid or
minimize the need for shared or allocated use of Shared Resources, and
to implement any necessary plans for shared or allocated use of Shared
Resources.
(e) If a Multiple Disaster is widespread or extreme, then, notwithstanding
the foregoing provisions, SunGard may implement emergency procedures
that are necessary, in SunGard's reasonable judgment, to allocate
Recovery Resources in order to address applicable national interests
and comparable concerns.
3. MULTIPLE DISASTER PROTECTION. To lower the probability of a Multiple
Disaster, SunGard shall comply with the following terms:
(a) No other customer shall be granted any greater rights of access to or
use of the Recovery Resources than are granted to Customer under this
Master Agreement.
(b) No agreement to provide use of any Recovery Resources shall be entered
into at a time when the customer location to be serviced is then
currently experiencing a disaster.
For Center-Based Recovery Services, SunGard also shall comply with the
following:
(c) To discourage unnecessary disaster declarations, Disaster Declaration
Fees, as provided in the Schedules, shall be charged whenever a
customer declares a disaster.
(d) To discourage unnecessary use of the Recovery Resources, Daily Usage
Fees, as provided in the Schedules, shall be charged for use of the
Recovery Resources other than for tests.
4. CRISIS MANAGEMENT. Whenever SunGard learns of an approaching storm or other
situation that might cause a Multiple Disaster, SunGard shall monitor the
situation and use commercially reasonable efforts to coordinate contingency
plans with all potentially affected customers.
RSE0504 (Legal)
PROFESSIONAL SERVICES EXHIBIT
TO THE MASTER AGREEMENT FOR U.S. AVAILABILITY
DATED MARCH 31, 2007
1. DESCRIPTION OF SERVICES
SunGard shall provide consulting and assessment professional services and
deliverables as described in the Schedule attached to this Exhibit, and if
applicable, in the attached Statement of Work ("Professional Services"). All
Professional Services to be provided by SunGard shall be performed by qualified
personnel in accordance with professional standards, and all Professional
Services provided and documents and reports delivered by SunGard shall conform
to the requirements of this Exhibit and the attached Schedule and/or Statement
of Work. Notwithstanding anything to the contrary herein, SunGard reserves the
right to subcontract the Professional Services to a third party without written
consent of Customer.
Except as otherwise stated in the attached Schedule or Statement of Work, the
parties intend that all Professional Services to be provided to Customer under
this Exhibit shall be completed within one year after the Schedule is signed by
SunGard. If Customer does not permit SunGard to perform the Professional
Services during that period, then all payments otherwise due upon project
completion will become due at the end of the one-year period. Any deficiencies,
as determined by generally accepted professional standards, shall be promptly
reported by Customer to SunGard and, in any event, within 30 days after receipt
of the document or Services involved. SunGard will correct such deficiencies in
its deliverables, Services or work within a mutually agreeable time period.
2. PERSONNEL
All SunGard personnel, when working at Customer's premises, will conduct
themselves in a professional manner and will use commercially reasonable efforts
to minimize disruptions to Customer's business. SunGard will retain full
responsibility for its own personnel, including payment of compensation and
payroll taxes, provision of benefits, and maintenance of workers' compensation
and other required insurance. SunGard and Customer also agree that during the
term of this Agreement and for one (1) year thereafter neither party will
interview for employment purposes or employ current employees of the other.
3. CUSTOMER'S RESPONSIBILITIES
Customer will provide to SunGard, as and when necessary, all information, data
and other materials concerning Customer's personnel, operations and facilities
and other relevant aspects of Customer's business, to the extent required by
SunGard to properly perform the Professional Services. All such information,
data and materials provided to SunGard by any of Customer's personnel will be
accurate, current and complete, and may be relied upon by SunGard in performing
the Professional Services. Customer will be responsible for preparing and
maintaining backup or duplicate copies of all such information, data and
materials, and SunGard will have no liability for any loss or damage resulting
from Customer's failure to do so.
Further, Customer will provide SunGard access to Customer's offices and
facilities at mutually agreeable times, make available to SunGard experienced
personnel having knowledge of Customer's operations and other relevant aspects
of Customer's business, and cooperate with SunGard in all respects reasonably
necessary to allow SunGard to perform the Services.
4. TERMINATION
Termination of the Services under this Exhibit for any reason will not relieve
Customer of liability for all amounts owed to SunGard under a Schedule to this
Exhibit for Professional Services. If Customer terminates the Professional
Services under a Schedule to this
Exhibit, Customer shall pay to SunGard, together with the notice of termination,
an amount equal to the present value (calculated using an annual discount rate
equal to the then current prime rate published in The Wall Street Journal) of
all remaining fees due under the applicable Schedule(s), and Customer shall
remain liable for any reimbursable expenses incurred by SunGard before
termination.
If Customer breaches any of its obligations under the Master Agreement in any
material respect, then, in addition to SunGard's right to terminate the
Agreement and any other rights and remedies that SunGard may have, SunGard may
suspend performance of all Services under a Schedule to this Exhibit until the
default is cured.
PSE0504 (Legal)
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Astrisks denote omissions.
SCHEDULE NUMBER 20448 V. 1.0
FOR MANAGED IT SERVICES GOVERNED BY
MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
This is a new Schedule having an Agreed Term of 36 months with a Commencement
Date of July 1, 2007.
SUMMARY OF SERVICES AND FEES
SELECTED SERVICES
Hosting Services
Network Services
ONE-TIME FEE $ *
MONTHLY FEE $ *
All One- Time Fees will be invoiced to Customer upon counter- execution of the
Schedule by SunGard and are due in accordance with the Master Agreement.
BILLING SCHEDULE
INVOICE FROM: MONTHLY FEE:
------------- ------------
07/01/2007 $ *
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
SCHEDULE AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) Keeping People DOC ID: 20448 VER.: 1.0
AVAILABILITY and Information QUOTE ID: 9349
SERVICES LOGO) Connected.(TM) PRINTED: MAR. 27, 2007 03:16:23 PM
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 20448 V. 1.0
FOR MANAGED IT SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 2 OF 4
CUSTOMER INFORMATION
XXXX TO ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
NOTIFICATION ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
DESIGNATED SUNGARD FACILITY: *
(SUNGARD(R) LOGO) DOC ID: 20448 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:16:24 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 20448 V. 1.0
FOR MANAGED IT SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 3 OF 4
QTY HOSTING SERVICES
--- ----------------
1 Secure Hosting Bundle - 120V base, A&B- side 30 Amp
1 1st addt'l 120V 30A, A&B- side for 120V base
1 2nd addt'l 120V 30A, A&B- side for 120V base
1 Secure Hosting Bundle - 120V base, A&B- side 30 Amp
1 1st addt'l 120V 30A, A- side for 120V base
1 2nd addt'l 120V 30A, A&B- side for 120V base
1 Secure Hosting Bundle - 120V base, A&B- side 30 Amp
1 1st addt'l 120V 30A, A&B- side for 120V base
1 2nd addt'l 120V 30A, A&B- side for 120V base
1 15" Rollout Flt Scrn Monitor w/ Kybrd & Mouse for use w/ Windows and UNIX
KVM Switches
1 8 Port Windows/Linux KVM switch, w/ 8ft cables
QTY NETWORK SERVICES
--- ----------------
1 * Usage Based Fee $*(1)
1 *
1 *
1 *
(SUNGARD(R) LOGO) DOC ID: 20448 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:16:24 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
SCHEDULE NUMBER 20448 V. 1.0
FOR MANAGED IT SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 4 OF 4
FOOTNOTES
1. Usage Fee per Mbps over Committed Bandwidth Tier Level.
(SUNGARD(R) LOGO) DOC ID: 20448 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:16:25 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
ADDENDUM TO SCHEDULE NUMBER 20448 V. 1.0
FOR MANAGED IT SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 1 OF 1
The above referenced Schedule ("Specified Schedule"), which has a Commencement
Date of July 1, 2007, is amended effective July 1, 2007.
The following changes are applicable to the Specified Schedule:
1. Section 2, Fees and Expenses, of the Master Agreement is amended by
deleting the last sentence and replacing it with the following:
"Beginning one year after the Commencement Date of a Schedule, SunGard
may increase all fees chargeable under that Schedule, subject to the
annual percentage limitation stated in the next sentence, by giving at
least 90 days prior written notice to Customer. The rate of increase
during any contract year shall not exceed the sum of (a) the annual
rate of increase in the United States Consumer Price Index- - All
Cities (or a comparable replacement index) during the then most
currently available 12- month period, plus (b) 2.0%, provided that
such increase shall in no event exceed 5.0%."
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
ADDENDUM AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID: 20448 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:19:26 PM
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ADDENDUM TO SCHEDULE NUMBER 20448
FOR MANAGED IT SERVICES
GOVERNED BY THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 1 OF 2
The Master Agreement for U.S. Availability Services, having the above date,
between SunGard Availability Services LP ("SunGard") and the Customer named
below, ("Master Agreement"), with regard to the Schedule identified above
("Specified Schedule") is amended effective July 1, 2007, as follows:
1. "Secure Hosting Bundle", as referenced in the Specified Schedule, shall
include the following:
SECURE HOSTING - Secure Hosting includes: (i) one (1) SunGard-Provided
Cabinet (as defined herein); (ii) one (1) Standard Power Circuit (as
defined herein), one (1) thirty (30) AMP B-Side Circuit; (iii)
Standard Monitoring (as defined herein) for up to ten (10) devices;
and (iv) five (5) hours of Operational Support Services per month.
SUNGARD PROVIDED CABINET - includes fifteen (15) square feet of Space
to support a SunGard-provided full cabinet. Each cabinet will include:
(i) a minimum of 42 U EIA rack space for the Equipment; (ii) proper
air ventilation for the Equipment; (iii) two (2) stationary equipment
shelves; (iv) one (1) Standard Power Circuit (as defined herein); and
(v) security by lock and key, managed by SunGard.
STANDARD POWER CIRCUIT is a single one hundred and twenty (120) Volt,
thirty (30) AMP power feed.
2. UPGRADES. At any time during the initial Agreed Term of the Specified
Schedule, Customer may elect to contract for the following additional
Managed Services, subject to SunGard's installed and available inventory at
the time of such election, for the corresponding additional Monthly Fee set
forth below. Such additional Managed Services will be available to Customer
effective upon the execution of an Addendum to the Specified Schedule or a
replacement Schedule, defining such additional Managed Services, the
effective date thereof, and the additional Monthly Fee therefore.
Managed Service Additional Monthly Fee
--------------- ----------------------
Secure Hosting Bundle (as defined in provision 1 above) $* per bundle
--remainder of page intentionally left blank--
(SUNGARD(R) LOGO) DOC ID.: VER.:
Availability Services QUOTE ID.: 9349
Keeping People and PRINTED:
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
ADDENDUM TO SCHEDULE NUMBER 20448
FOR MANAGED IT SERVICES
GOVERNED BY THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 2 OF 2
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Addendum and ratify the terms of the Agreement.
SUNGARD AVAILABILITY SERVICES LP CUSTOMER: ATHENAHEALTH
BY: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
PRINT NAME: Xxxxxx Xxxxxxxx PRINT NAME: XXXXX X. XXXXXXXXX
PRINT TITLE: Regional Vice President PRINT TITLE: CHIEF OPERATING OFFICER
DATE SIGNED: 4/16/07 DATE SIGNED: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID.: VER.:
Availability Services QUOTE ID.: 9349
Keeping People and PRINTED:
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ADDENDUM TO SCHEDULE NUMBER 16956
FOR RECOVERY SERVICES
GOVERNED BY THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 1 OF 2
The Master Agreement for U.S. Availability Services, having the above date,
between SunGard Availability Services LP ("SunGard") and the Customer named
below, ("Master Agreement"), with regard to the Schedule identified above
("Specified Schedule") is amended effective July 1, 2007, as follows:
1. DOWNGRADES. Customer may downgrade the Recovery Services set forth on the
Specified Schedule to any lower service level offered by SunGard, by giving
written notice to SunGard and then signing a new Schedule that (a) has a
Commencement Date that is no earlier than six (6) months after SunGard
receives Customer's notice, (b) provides for a Monthly Fee equal to the
"New Fee" (defined below), and (c) has a term equal to the number of months
in the then remaining term of the prior Schedule, multiplied by the "Old
Fee" (defined below) and divided by the New Fee (rounded to the nearest
whole number). Effective on the Commencement Date stated in the new
Schedule, the new Schedule shall supersede the prior Schedule.
The New Fee shall be equal to SunGard's then prevailing Monthly Fee for the
lower service level elected, provided that such New Fee shall not be less
than at least * percent (*%) of (a) the initial Monthly Fee (adjusted
for any applicable price increases) or (b) the then prevailing Monthly Fee
for services being provided under the affected Schedule immediately before
such downgrade ("Old Fee"), whichever is greater.
The right to downgrade under this provision (a) may be invoked not more
than once during any twelve (12) month period provided the limitations
stated above are not exceeded, and (b) will be in effect only during the
initial term of a Schedule and not during any renewal term.
2. UPGRADES. At any time during the initial Agreed Term of the Specified
Schedule, except if Customer is then experiencing a Disaster, Customer may
elect to contract for the following additional Recovery Services,
configured as follows (subject to SunGard's installed and available
inventory at the time of such election), for the corresponding additional
Monthly Fee set forth below. Such additional Recovery Services will be
available to Customer effective upon the execution of an Addendum to the
Specified Schedule or a replacement Schedule, defining such additional
Recovery Services, the effective date thereof, and the additional Monthly
Fee therefore.
Additional Monthly
Recovery Service Fee (per unit)
---------------- ------------------
Dual 3.16 CPU, 8,192 Memory, 200 GB Internal Disk $ *
Dual 2.6 CPU, 4,094 Memory, 150 GB Internal Disk $ *
Four 3.16 CPU, 16, 384 Memory, 100 GB Internal Disk $ *
* $ *
SDLT Tape Drives $ *
* $ *
* $ *
* $ *
* $ *
Mbps of Web Redirect $ *
(SUNGARD(R) LOGO) DOC ID.: VER.:
Availability Services QUOTE ID.: 9349
Keeping People and PRINTED:
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
ADDENDUM TO SCHEDULE NUMBER 16956
FOR RECOVERY SERVICES
GOVERNED BY THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 2 OF 2
3. DESIGNATION OF RECOVERY RESOURCES. Customer has designated SunGard's *
recovery center as its preferred recovery center for testing and Disaster
purposes, which will be accommodated by SunGard consistent with the terms
of the Agreement. As of the July 1, 2007 Commencement Date of the Specified
Schedule, SunGard represents that the Recovery Resources contracted for on
the Specified Schedule are designated below as either Shared Resources or
Priority Resources, based on Customer's preferred recovery facility of * .
Further, in the event Customer adds additional Recovery Resources, and/or
modifies the Specified Schedule, at Customer's written request, SunGard
agrees to provide Customer with information as to the designation of those
Recovery Resources as either Priority or Shared Resources prior to
Customer's execution of an Addendum to the Specified Schedule or a
replacement Schedule.
PRIORITY RESOURCES:
All Mobile Configurations
SHARED RESOURCES:
Network Configuration 1
4. PORTS. The following items are hereby added to the Specified Schedule:
Qty. Description
---- -----------
8 Data Center Connectivity to Managed Services - Fiber Ports
The additional Monthly Fee for the above items is included in the Monthly
Fee defined on the Specified Schedule.
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Addendum and ratify the terms of the Agreement.
SUNGARD AVAILABILITY SERVICES LP CUSTOMER: ATHENAHEALTH
BY: /s/ Xxxxxx Xxxxxxxx BY: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
PRINT NAME: Xxxxxx Xxxxxxxx PRINT NAME: XXXXX X. XXXXXXXXX
PRINT TITLE: Regional Vice President PRINT TITLE: CHIEF OPERATING OFFICER
DATE SIGNED: 4/16/07 DATE SIGNED: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID.: VER.:
Availability Services QUOTE ID.: 9349
Keeping People and PRINTED:
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
ADDENDUM FOR MULTIPLE LOCATION COVERAGE TO
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 1 OF 2
Schedule Reference Name: AthenaHealth - Servers Configurations
The above referenced Schedule ("Specified Schedule"), which has a Commencement
Date of July 1, 2007, is amended effective July 1, 2007.
I. COVERED LOCATIONS
Notwithstanding anything to the contrary stated on the Specified Schedule, the
following locations are referred to as the "Covered Locations".
PRIMARY 1. 00 XXXXXXXXX XXXXXXXX, XXXXXXX, XX 00000 XX
XX XXXX
2. 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
II. MULTIPLE LOCATION COVERAGE
Each of the Covered Locations may use the Recovery Services described in the
Specified Schedule alone or together with another Covered Location, as needed,
provided that all affected Locations shall use only the configuration described
in the Specified Schedule (subject to future additions), and the total capacity
in use does not exceed one Covered Location's configuration at any given time.
Regardless of the number of Covered Locations that may experience a Disaster at
or about the same time, Customer shall not be entitled to use any equipment or
services other than those described in the Specified Schedule.
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
ADDENDUM AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:19:46 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
ADDENDUM FOR MULTIPLE LOCATION COVERAGE TO
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 2 OF 2
III. TESTING
Customer is responsible for allocating the Test Periods stated in the Specified
Schedule among the Covered Locations.
The term of this Addendum shall continue until the end of the initial Agreed
Term or any extended or renewal term of the Specified Schedule.
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:19:47 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
ADDENDUM TO SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 1 OF 1
Schedule Reference Name: AthenaHealth - Servers Configurations
The above referenced Schedule ("Specified Schedule"), which has a Commencement
Date of July 1,2007, is amended effective July 1, 2007.
The following changes are applicable to the Specified Schedule:
1. Section 2, Fees and Expenses, of the Master Agreement is amended by
deleting the last sentence and replacing it with the following:
"Beginning one year after the Commencement Date of a Schedule, SunGard
may increase all fees chargeable under that Schedule, subject to the
annual percentage limitation stated in the next sentence, by giving at
least 90 days prior written notice to Customer. The rate of increase
during any contract year shall not exceed the sum of (a) the annual
rate of increase in the United States Consumer Price Index- - All
Cities (or a comparable replacement index) during the then most
currently available 12- month period, plus (b) 2.0%, provided that
such increase shall in no event exceed 5.0%."
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
ADDENDUM AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 27, 2007 03:19:53 PM
Information Connected.(TM)
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 1 OF 6
Schedule Reference Name: AthenaHealth - Servers Configurations
This is a new Schedule having an Agreed Term of 36 months with a Commencement
Date of July 1, 2007.
SUMMARY OF SERVICES AND FEES
BASE
TEST
SELECTED SERVICES PERIODS
----------------- -------
MOBILE RECOVERY SERVICES
Mobile Configurations 3
Delivery Methods Primary Recovery Facility
Alternate Recovery Facility
Mobile Data Center
Subscriber Facility
NETWORK SERVICES
MONTHLY FEE $*
BILLING SCHEDULE
INVOICE FROM: MONTHLY FEE:
------------- ------------
07/01/2007 $*
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
SCHEDULE AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:57 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 2 OF 6
CUSTOMER INFORMATION
CUSTOMER LOCATION ADDRESS: SEE ADDENDUM
NOTIFICATION ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
XXXX TO ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:58 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 3 OF 6
DISASTER FEES
--------------------------------
QTY MOBILE 1 DECLARATION FEE DAILY USAGE(1)
--- -------- --------------- --------------
Customer Configuration Ref:
* $* $*
3 Annual Test Periods - Additional
10 *
*
*
*
*
*
*
*
1 *
*
*
DISASTER FEES
--------------------------------
QTY MOBILE 3 DECLARATION FEE DAILY USAGE(1)
--- -------- --------------- --------------
Customer Configuration Ref:
* $* $*
3 Annual Test Periods - Additional
41 *
*
*
*
*
*
*
*
1 *
*
*
*
*
1 *
*
*
*
DISASTER FEES
--------------------------------
QTY MOBILE 6 DECLARATION FEE DAILY USAGE(1)
--- -------- --------------- --------------
Customer Configuration Ref:
* $* $*
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:58 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 4 OF 6
MOBILE 6
QTY (CONTINUED)
--- -----------
3 Annual Test Periods - Additional
1 *
*
*
*
*
*
1 *
5 *
1 *
DISASTER FEES
--------------------------------
QTY MOBILE 7 DECLARATION FEE DAILY USAGE(1)
--- -------- --------------- --------------
Customer Configuration Ref:
* $* $*
50 *
*
*
*
*
*
*
2 *
DISASTER FEES
--------------------------------
QTY MOBILE 8 DECLARATION FEE DAILY USAGE(1)
--- -------- --------------- --------------
Customer Configuration Ref:
* $* $*
49 *
*
*
*
*
*
*
1 *
DISASTER FEES
-----------------------------
QTY NETWORK 1(3) DECLARATION FEE DAILY USAGE
--- ------------ --------------- -----------
Customer Configuration Ref:
* $* $*
*
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:58 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 5 OF 6
NETWORK 1
QTY (CONTINUED)
--- -----------
40 Mbps
32 (Additional SunGard Addresses
Destination: *
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:59 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
SCHEDULE NUMBER 16956 V. 1.0
FOR RECOVERY SERVICES GOVERNED BY
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 6 OF 6
FOOTNOTES
1. Daily Usage Fees during a Disaster will begin on day 31.
2. Not shippable and governed by the terms and conditions applicable to
Center-Based Resources.
3. If a Declaration Fee of equal or greater value is charged in association
with a Center- Based or Mobile Configuration defined on this Schedule, then
the Declaration Fee for the applicable Network Services will be deemed
included in such fee.
4. Not shippable and subject to the terms and conditions of Shared Resources.
(SUNGARD(R) LOGO) DOC ID: 16956 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and MPRINTED: MAR. 28, 2007 12:08:59 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
SCHEDULE NUMBER 21010 V. 1.0
FOR PROFESSIONAL SERVICES GOVERNED BY THE
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31,2007
PAGE 1 OF 2
Schedule Reference Name: TAP
Effective Date: July 1, 2007
SERVICES
The Services as described in the Statement of Work, Business Availability Custom
Sow (14751) dated 02/12/2007 ("SOW") is attached hereto and made a part hereof.
The total value for the Services for this SOW is $ *, for a grand total of
$ *, which is due and payable as follows:
Remaining Fees included in Total Monthly Fee below: $ *
Fees for the Plan Maintenance Services included in
the Total Monthly Fee below: $ *
TOTAL MONTHLY FEE
Customer has opted for a 36 month term, resulting in a $* Monthly Fee which will
be billed by SunGard commencing July 1, 2007.
The Monthly Fee set forth on this Schedule does not include any Fees related to
periodic payments.
Reimbursable expenses (travel, lodging, food and incidental actual costs) will
be billed on a monthly basis as the expenses are incurred.
CUSTOMER INFORMATION
XXXX TO ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
BY THE SIGNATURES OF THEIR DULY AUTHORIZED REPRESENTATIVES BELOW, SUNGARD AND
CUSTOMER, INTENDING TO BE LEGALLY BOUND, AGREE TO ALL OF THE PROVISIONS OF THIS
SCHEDULE AND RATIFY THE TERMS OF THE MASTER AGREEMENT.
SUNGARD AVAILABILITY SERVICES LP ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. XxxXxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 4/16/07 Date Signed: XXXXX 00, 0000
(XXXXXXX(X) LOGO) DOC ID: 21010 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 29, 2007 06:12:00 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
SCHEDULE NUMBER 21010 V. 1.0
FOR PROFESSIONAL SERVICES GOVERNED BY THE
MASTER AGREEMENT FOR U. S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 2 OF 2
CUSTOMER INFORMATION (CONTINUED)
XXX XXXXXXXXX
NOTIFICATION ADDRESS: 000 XXXXXXX XXXXXX, XXXXXXXXX, XX 00000 XX
XXX XXXXXXXXX
(SUNGARD(R) LOGO) DOC ID: 21010 VER.: 1.0
Availability Services QUOTE ID: 9349
Keeping People and PRINTED: MAR. 29, 2007 06:12:01 PM
Information Connected.(TM)
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
ADDENDUM TO
THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 1 OF 2
The Master Agreement for U.S. Availability Services, having the above date,
between SunGard Availability Services LP ("SunGard") and the Customer named
below, ("Master Agreement"), is amended effective July 1, 2007, as follows:
1. Schedule Number 20448 v.1.0 for Managed IT Services ("MS Schedule") is
amended as follows:
a. By changing the Commencement Date from July 1, 2007 to September 1,
2007; and
b. By changing the "Invoice From" date on the Billing Schedule from July
1, 2007 to September 1, 2007.
2. The Addendum to the MS Schedule that modifies Section 2 of the Master
Agreement is amended by deleting the first sentence of the Addendum and
replacing it with the following:
"The above referenced Schedule ("Specified Schedule"), which has a
Commencement Date of September 1, 2007, is amended effective September 1,
2007."
3. The two-page Addendum to the MS Schedule is amended by changing the
effective date of the Addendum from July 1, 2007 to September 1, 2007
4. Schedule Number 16956 v.1 0 for Recovery Services ("RS Schedule") is
amended as follows:
a. By changing the Commencement Date from July 1, 2007 to September 1,
2007, and
b. By changing the "Invoice From" date on the Billing Schedule from July
1, 2007 to September 1, 2007.
5. The Addendum to the RS Schedule that modifies Section 2 of the Master
Agreement is amended by deleting the first sentence of the Addendum and
replacing it with the following:
"The above referenced Schedule ("Specified Schedule"), which has a
Commencement Date of September 1, 2007, is amended effective September 1,
2007."
6. The two-page Addendum to the RS Schedule is amended by changing the
effective date of the Addendum from July 1, 2007 to September 1, 2007.
7. The Addendum for Multiple Location Coverage to the RS Schedule is amended
by changing the effective date of the Addendum from July 1, 2007 to
September 1, 2007.
(SUNGARD(R) Keeping People DOC ID.: VER.: ____________
AVAILABILITY and Information QUOTE ID: 9349
SERVICES LOGO) Connected.(TM) PRINTED: __________________
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
ADDENDUM TO
THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP AND ATHENAHEALTH
DATED MARCH 31, 2007
PAGE 2 OF 2
8. Schedule Number 21010 v.1.0 for Professional Services ("PS Schedule") is
amended as follows:
a. By changing the Effective Date from July 1, 2007 to September 1,
2007; and
b. By changing the Monthly Fee commencement date from July 1, 2007 to
September 1, 2007
By the signatures of their duly authorized representatives below, SunGard and
Customer, intending to be legally bound, agree to all of the provisions of this
Addendum and ratify the terms of the Agreement.
SUNGARD AVAILABILITY SERVICES LP CUSTOMER: ATHENAHEALTH
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------- ------------------------------------
Print Name: Xxxxxx Xxxxxxxx Print Name: XXXXX X. XXXXXXXXX
Print Title: Regional Vice President Print Title: CHIEF OPERATING OFFICER
Date Signed: 5/4/07 Date Signed: April 25, 2007
(SUNGARD(R) Keeping People DOC ID.: VER.: ____________
AVAILABILITY and Information QUOTE ID: 9349
SERVICES LOGO) Connected.(TM) PRINTED: __________________
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
