DATA SERVICES AGREEMENT between HMS BUSINESS SERVICES, INC. and ACCORDIS HOLDING CORP. Dated July 31, 2007
ExhibitΒ 10.13(i)
Execution Version
between
HMS BUSINESS SERVICES, INC.
and
ACCORDIS HOLDING CORP.
Dated JulyΒ 31, 2007
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TABLE OF CONTENTS
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ArticleΒ 1 DEFINITIONS AND CONSTRUCTION |
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1.01 Definitions |
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1.02 Incorporation and References |
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1.03 Headings |
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1.04 Interpretation of Documents |
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ArticleΒ 2 TERM |
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2.01 Initial Term |
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2.02 Renewal and Extension |
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ArticleΒ 3 DESIGNATED SERVICES |
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3.01 General |
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3.02 Reports |
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ArticleΒ 4 OUT-OF-SCOPE SERVICES |
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4.01 Out-of-Scope Services |
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ArticleΒ 5 CUSTOMER RESPONSIBILITIES |
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5.01 Customer Contract Managers |
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5.02 Use of Customer Facilities |
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ArticleΒ 6 SERVICE LEVELS |
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6.01 Designated Service Levels |
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6.02 Out-of-Scope Service Levels |
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6.03 Adjustment of Service Levels |
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6.04 Root-Cause Analysis |
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6.05 Service Level Reporting |
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6.06 Measurement and Monitoring Tools |
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6.07 Performance Credits |
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ArticleΒ 7 SERVICE LOCATIONS |
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7.01 Service Locations |
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7.02 Safety and Security Procedures |
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7.03 Data Security |
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ArticleΒ 8 VENDOR CONTRACT MANAGER AND SUBCONTRACTING |
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8.01 Vendor Contract Manager |
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8.02 Project Staff |
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8.03 Subcontractors |
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ArticleΒ 9 MANAGEMENT AND CONTROL |
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9.01 Contract Managers |
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9.02 Change Control Procedures |
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ArticleΒ 10 PROPRIETARY RIGHTS |
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10.01 Third Party Software |
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ArticleΒ 11 DATA |
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11.01 Ownership of Customer Data |
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11.02 Return of Data |
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ArticleΒ 12 LIMITATION OF LIABILITY |
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12.01 Disclaimer |
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12.02 Limitation |
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ArticleΒ 13 DISASTER RECOVERY AND FORCE MAJEURE EVENTS |
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13.01 Disaster Recovery Plan |
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13.02 Force Majeure |
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13.03 Alternate Source |
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13.04 No Payment for Unperformed Services |
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ArticleΒ 14 PAYMENTS AND INVOICING |
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14.01 General |
Β | Β | 16 | Β |
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14.02 Designated Fees |
Β | Β | 16 | Β |
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14.03 Time of Payment |
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14.04 Adjustments to Fees |
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14.05 Unused Credits |
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14.06 Late Payments |
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ArticleΒ 15 AUDITS |
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15.01 Services |
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15.02 Record Retention |
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15.03 Facilities |
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ArticleΒ 16 CONFIDENTIALITY |
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16.01 General Obligations |
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16.02 Unauthorized Acts |
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ArticleΒ 17 REPRESENTATIONS AND WARRANTIES |
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17.01 By Customer |
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17.02 By Vendor |
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17.03 DISCLAIMER |
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ArticleΒ 18 ADDITIONAL COVENANTS |
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18.01 By Customer |
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18.02 By Vendor |
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ArticleΒ 19 DISPUTE RESOLUTION |
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19.01 Contract Managers |
Β | Β | 20 | Β |
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19.02 Arbitration |
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ArticleΒ 20 TERMINATION |
Β | Β | 21 | Β |
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20.01 Termination for Cause |
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20.02 Termination for Insolvency |
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20.03 Termination to Conform to Law |
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20.04
Termination by Customer |
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ArticleΒ 21 TERMINATION ASSISTANCE |
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ArticleΒ 22 INDEMNITIES |
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22.01 Indemnity by Customer |
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22.02 Indemnity by Vendor |
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22.03 Indemnification Procedures |
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22.04 SPA Indemnification |
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ArticleΒ 23 MISCELLANEOUS PROVISIONS |
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23.01 Assignment |
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23.02 Notices |
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23.03 Counterparts |
Β | Β | 24 | Β |
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23.04 Relationship |
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23.05 Consents, Approvals and Requests |
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23.06 Severability |
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23.07 Waivers |
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23.08 Remedies Cumulative |
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23.09 Entire Agreement |
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23.10 Amendments |
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23.11 Survival |
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23.12 Third Party Beneficiaries |
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23.13 Governing Law |
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23.14 Sole and Exclusive Venue |
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23.15 Covenant of Further Assurances |
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23.16 Negotiated Terms |
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23.17 Export |
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23.18 Conflict of Interest |
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23.19 Publicity |
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TABLE OF EXHIBITS
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ExhibitΒ 1
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Β | Statement of Work |
ExhibitΒ 2
|
Β | Third Party Software |
ExhibitΒ 3
|
Β | Service Location |
ExhibitΒ 4
|
Β | Designated Fees |
ExhibitΒ 5
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Β | Service Levels and Performance Credits |
ExhibitΒ 6
|
Β | In Scope Maximums |
ExhibitΒ 7
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Β | Hourly Rate Schedule |
ExhibitΒ 8
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Β | Reports |
ExhibitΒ 9
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Β | Data Safeguards |
ExhibitΒ 10
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Β | Change Control Procedures |
ExhibitΒ 11
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Β | Disaster Recovery Transition Procedures |
ExhibitΒ 12
|
Β | Business Associates Agreement |
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Execution Version
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β This DATA SERVICES AGREEMENT, dated JulyΒ 31, 2007 (the βEffective Dateβ), is between HMS Business
Services, Inc. (βVendorβ) and Accordis Holding Corp. (βAccordis Holdingβ).
W I T N E S S E T H:
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β WHEREAS, SectionΒ 6.1(f) of the Stock Purchase Agreement between HMS Holdings Corp. (βHMSβ) and
Accordis Holding dated AugustΒ 31, 2005 (the βSPAβ), pursuant to which Accordis Holding is acquiring
all of the capital stock of Accordis, Inc. (βAccordisβ), requires that Vendor and Accordis Holding
enter into a services agreement to provide that Vendor, an affiliate of HMS, would perform data
processing and hosting services to Accordis Holding and certain of its Affiliates (defined below
collectively as Customer) to the same extent that Accordis and its subsidiary HRM received such
services as subsidiaries of HMS prior to the closing of the transactions contemplated in the Stock
Purchase Agreement; and
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β WHEREAS, Vendor desires to provide to Customer, and Customer desires to obtain from Vendor, the
data processing, data storage and data management services and related services described in this
Agreement on the terms and conditions set forth in this Agreement.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β NOW, THEREFORE, for and in consideration of the agreements set forth below, Customer and Vendor
agree as follows:
ARTICLE 1 DEFINITIONS AND CONSTRUCTION.
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 1.01 Definitions. The following defined terms used in this Agreement shall have the
meanings specified below:
βAccessLineβ shall mean a series of Customer-licensed, proprietary batch and online CICS
programs used to manage the Customerβs business.
βAccessLine Accountsβ shall mean the active accounts of responsible parties or patients of
clients of Customerβs AccessLine business that constitute active accounts in AccessLine.
βAccordisβ shall mean Accordis, Inc., a corporation organized under the Law of New York.
βAffiliateβ shall mean, as to any entity, any other entity that, directly or indirectly,
Controls, is Controlled by or is under common Control with such entity.
βAgreementβ shall mean this Data Services Agreement between Customer and Vendor.
βChange(s)β shall mean any change to the Services, the Software used to provide the
Services or the Machines used to provide the Services that would materially alter the
functionality, performance standards or technical environment of the Software used to provide the
Services or the Machines used to provide the Services, the manner in which the Services are
provided, the composition of the Services or the cost to Customer of the Services. Software patches
and upgrades provided by the third party Software vendors
Β
listed on ExhibitΒ 2 shall not be deemed Changes unless the implementation requires material
modification of the Machines. Phase-out or complete termination of Standard Processing shall not be
deemed Changes.
βChange Control Proceduresβ shall mean the written description of the procedures used to
control Changes made under this Agreement set forth in ExhibitΒ 10.
βChange in Controlβ shall mean the (1)Β consolidation or merger of a Party with or into any
entity (other than the consolidation or merger of a Party with an Affiliate of such Party in which
such Party is the surviving entity of such consolidation or merger), (2)Β sale, transfer or other
disposition of all or substantially all of the assets of a Party or (3)Β acquisition by any entity,
or group of entities acting in concert, of beneficial ownership of 20Β percent or more (or such
lesser percentage that constitutes Control) of the outstanding voting securities or other ownership
interests of a Party.
βConfidential Informationβ of Customer or Vendor shall mean all information and
documentation of Customer and Vendor, respectively, whether disclosed to or accessed by Customer or
Vendor in connection with this Agreement, including (1)Β with respect to Customer, all Customer Data
and all information of Customer or its customers, suppliers, contractors and other third parties
doing business with Customer, (2)Β with respect to Vendor, the Third Party Software, (3)Β with
respect to Customer and Vendor, the terms of this Agreement and (4)Β any information developed by
reference to or use of Customerβs or Vendorβs information; provided, however, that except to the
extent otherwise provided by Law, the term βConfidential Informationβ shall not include information
that (a)Β is independently developed by the recipient, as demonstrated by the recipientβs written
records, without violating the disclosing Partyβs proprietary rights, (b)Β is or becomes publicly
known (other than through unauthorized disclosure), (c)Β is already known by the recipient at the
time of disclosure, as demonstrated by the recipientβs written records, and the recipient has no
obligation of confidentiality other than pursuant to this Agreement or any confidentiality
agreements between Customer and Vendor entered into prior to the Effective Date or (d)Β is
rightfully received by a Party free of any obligation of confidentiality. Notwithstanding anything
to the contrary set forth above, any and all information provided by or owned by Customer that
could be used to identify individual patients, providers, or third party payors, shall be deemed
Confidential Information of Customer, regardless of the form or format of such information.
βContract Managersβ shall mean the Customer Contract Managers and the Vendor Contract
Manager, collectively.
βContract Yearβ shall mean each 12-month period commencing, in the case of the first
Contract Year, on the Effective Date and thereafter upon the completion of the immediately
preceding Contract Year.
βControlβ shall mean, with respect to any entity, the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such entity,
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whether through the ownership of voting securities (or other ownership interest), by contract or
otherwise.
βCustomerβ shall mean Accordis Holding, its wholly-owned subsidiary Accordis, Accordisβ
wholly-owned subsidiary HRM and any other Affiliates of Accordis Holding as may be approved by
Vendor in writing, which approval will not be unreasonably withheld.
βCustomer Agentsβ shall mean the agents, subcontractors and representatives of Customer,
other than Vendor and Vendor Agents, subject to the confidentiality restrictions of this Agreement.
βCustomer Consentsβ shall mean all licenses, consents, permits, approvals and
authorizations that are necessary to allow Vendor and Vendor Agents to use (1)Β Customerβs owned
assets and (2)Β the services provided for the benefit of Customer under Customerβs third party
services contracts.
βCustomer Contract Managerβ shall mean Xxxxxxx Xxxxxx or his successor as designated by
Customer.
βCustomer Dataβ shall mean all data and information (including the data library and
catalogue) (1)Β submitted to Vendor or Vendor Agents by or on behalf of Customer, (2)Β obtained,
developed or produced by Vendor or Vendor Agents in connection with this Agreement or (3)Β to which
Vendor or Vendor Agents have access in connection with the provision of the Services. Without
limiting the generality of the foregoing, and for the avoidance of doubt, any and all data and
information provided by or owned by Customer that could be used to identify individual patients,
providers, or third party payors, shall be deemed Customer Data, regardless of the form or format
of such information.
βCustomer Designated Executivesβ shall mean ????? or his successor as designated by
Customer.
βCustomer Service Locationsβ shall mean any Customer service location set forth in
Exhibit 3 and any other service location owned or leased by Customer for which Vendor has
received Customerβs approval in accordance with SectionΒ 7.01.
βData Safeguardsβ shall mean the data safeguards set forth on ExhibitΒ 9 hereto.
βDesignated Executivesβ shall mean the Customer Designated Executives and the Vendor
Designated Executive, collectively.
βDesignated Feesβ shall mean the fees for the Designated Services set forth in ExhibitΒ 4.
βDesignated Service Levelsβ shall mean the service levels and standards for the performance
of the Designated Services as described in ExhibitΒ 5.
βDesignated Servicesβ shall have the meaning set forth in SectionΒ 3.01.
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βDRPβ shall have the meaning set forth in SectionΒ 13.01.
βEffective Dateβ shall have the meaning set forth in the introductory paragraph hereto.
βFeesβ shall mean the Designated Fees and any other amounts payable by Customer to Vendor
pursuant to this Agreement.
βForce Majeure Eventβ shall have the meaning set forth in SectionΒ 13.02.
βGovernmental Approvalsβ shall mean all licenses, consents, permits, approvals and
authorizations of any Governmental Authority, or any notice to any Governmental Authority, the
granting of which is required by Law, including Regulations, for the consummation of the
transactions contemplated by this Agreement.
βGovernmental Authorityβ shall mean any federal, state, municipal, local, territorial, or
other governmental department, regulatory authority, judicial or administrative body, whether
domestic, international or foreign.
βHMSβ shall mean Health Management Systems Inc., a corporation organized under the Law of
New York
βHRMβ shall mean Accordisβ wholly-owned subsidiary Health Receivables Management, Inc.
βIndemnified Partyβ shall have the meaning set forth in SectionΒ 22.03.
βIndemnifying Partyβ shall have the meaning set forth in SectionΒ 22.03.
βInitial Agreement Expiration Dateβ shall mean the fourth anniversary of the Effective
Date.
βInitial Termβ shall have the meaning set forth in SectionΒ 2.01.
βLawβ shall mean any declaration, decree, directive, legislative enactment, order, ordinance,
Regulations, rule or other binding restriction of or by any Governmental Authority, including,
without limitation and for the avoidance of doubt, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA).
βLossesβ shall mean any and all damages, fines, penalties, deficiencies, losses, liabilities
(including settlements and judgments) and expenses (including interest, court costs, reasonable
fees and expenses of attorneys, accountants and other experts and professionals or other reasonable
fees and expenses of litigation or other proceedings or of any claim, default or assessment).
βMachinesβ shall mean computers and related equipment, including central processing units
and other processors, wireless and wired networks, controllers, modems, communications and
telecommunications equipment (data and video), cables, storage devices, printers,
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terminals, cartridge and tape drive readers, other peripherals and input and output
devices, and other tangible mechanical and electronic equipment intended for the
processing, input, output, storage, manipulation, communication, transmission and retrieval
of information and data.
βOut-of-Scope Service(s)β shall mean any service, product, Machine, or Software
that is outside the scope of the Designated Services.
βOut-of-Scope Service Level(s)β shall mean any service level established by Vendor
and Customer in connection with an Out-of-Scope Service.
βPartiesβ shall mean Customer and Vendor, collectively.
βPartyβ shall mean either Customer or Vendor, as the case may be.
βPerformance Creditsβ shall mean the performance credits set forth in Exhibit
5.
βRCR Clientsβ shall mean the Customer clients that require Standard Processing.
βRegulationsβ shall have the same meaning in this Agreement as is given to that
term in the SPA.
βRelated Documentationβ shall mean, with respect to Software and Tools, all
materials, documentation, specifications, technical manuals, user manuals, flow diagrams,
file descriptions and other written information that describes the function and use of such
Software or Tools, as applicable.
βService Levelsβ shall mean the Designated Service Levels and the Out-of-Scope
Service Levels, collectively.
βService Locationsβ shall mean any Customer Service Location or Vendor Service
Location, as applicable.
βServicesβ shall mean the Designated Services, the Out-of-Scope Services being
provided by Vendor pursuant to this Agreement and the Termination Assistance Services,
collectively.
βSoftwareβ shall mean the source code and object code versions of any applications
programs, operating system software, computer software languages, utilities, other computer
programs and Related Documentation, in whatever form or media, including the tangible media
upon which such applications programs, operating system software, computer software
languages, utilities, other computer programs and Related Documentation are recorded or
printed, together with all corrections, improvements, updates and releases thereof.
βStandard Processingβ shall mean a series of Customer-owned proprietary batch
programs used to manage the Customer RCR product line.
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βSystemsβ shall mean the Software and the Machines, collectively, used to
provide the Services.
βTermβ shall mean the Initial Term and any renewal or extension of the Initial Term.
βTermination Assistance Periodβ shall mean a period of time designated by Customer,
commencing no earlier than 90Β days prior to the Initial Agreement Expiration Date and
ending upon expiration of the Initial Agreement Expiration Date, during which Vendor shall
provide the Termination Assistance Services.
βTermination Assistance Servicesβ shall mean (1)Β the Services to the extent
Customer requests such Services during the Termination Assistance Period, (2)Β Vendorβs
cooperation with Customer or another service provider designated by Customer in the
transfer of the Services to Customer or such other service provider in order to facilitate
the transfer of the Services to Customer or such other service provider and (3)Β any
Out-of-Scope Services requested by Customer in order to facilitate the transfer of the
Services to Customer or another service provider designated by Customer.
βThird Party Softwareβ shall mean the third party Software and Related
Documentation licensed, leased or otherwise obtained by Vendor that is used in connection
with the Services or with any Third Party Software as set forth in ExhibitΒ 2.
βToolsβ shall mean any Software development and performance testing tools,
know-how, methodologies, processes, technologies or algorithms and Related Documentation
used by Vendor in providing the Services, and based upon trade secrets or software,
documentation or other proprietary information owned or licensed by Vendor.
βTotal In Scope AccessLine Accountsβ shall mean the number of AccessLine Accounts
allowed under the Designated Services as outlined in ExhibitΒ 6, In Scope Maximums.
For the avoidance of doubt, only active AccessLine Accounts shall be counted in the Total In
Scope AccessLine Accounts.
βTotal In Scope RCR Clientsβ shall mean the number of RCR Clients that are allowed
under the Designated Services as RCR Clients requiring Standard Processing as outlined in
ExhibitΒ 6, In Scope Maximums.
βUseβ shall mean the right to access, load, execute, store, transmit, display, copy,
maintain, modify, enhance, create derivative works, make and have made.
βVendorβ shall mean HMS Business Services, a corporation organized under the Law of
New York.
βVendor Agentsβ shall mean the agents, subcontractors and representatives of Vendor.
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βVendor Consentsβ shall mean all licenses, consents, permits, approvals and
authorizations that are necessary to allow (1)Β Customer and Customer Agents to use (a)Β the
Third Party Software and (b)Β assets owned or leased by Vendor for the provisions of the
Services; and (2)Β Vendor and Vendor Agents to use any third party services retained by
Vendor to provide the Services during the Term and the Termination Assistance Period.
βVendor Contract Managerβ shall mean Xxxxxx Xxx or his successor.
βVendor Designated Executiveβ shall mean Xxxx Xxxxx, or his successor.
βVendor Machinesβ shall mean those Machines leased or owned by Vendor or
Vendor Agents that are used by Vendor or Vendor Agents to provide the Services.
βVendor Service Location(s)β shall mean any Vendor service location set forth in
ExhibitΒ 3 and any other service location approved by Customer pursuant to
SectionΒ 7.01.
βVirusβ shall mean (i)Β any software virus, worm, Trojan horse, trap door, time
bomb, spyware, or other program code, programming instruction or set of instructions
intentionally constructed by third parties having the capability to damage, interfere with
or otherwise adversely affect the operation or security of computer programs, data files,
operations, telecommunications or Services; or other code typically designed to be a virus.
or (ii)Β any copies of Grokster, Kazaa, Morpheus, Napster, Aimster or other peer-to-peer software.
β’Β β’Β β’Β β’Β β’Β β’Β β’Β β’Β β’Β β’Β β’ Exhibits to this Agreement:
Β | (1) | Β | the Exhibits to this Agreement shall be incorporated into and deemed part of this Agreement and all references to this Agreement shall include the Exhibits to this Agreement; |
Β | |||
Β | (2) | Β | references to an Exhibit, Section or Article shall be to such Exhibit, Section or Article of this Agreement, unless otherwise provided; |
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Β | (3) | Β | references to any Law shall mean references to such Law in changed or supplemented form or to a newly adopted Law replacing a previous Law; and |
Β | |||
Β | (4) | Β | references to and mentions of the word βincludingβ or the phrase βe.g.β shall mean βincluding, without limitation.β |
Β Β Β Β Β Β Β Β Β Β 1.03 Headings. The Article and Section headings, Table of Contents and Table of
Exhibits are for reference and convenience only and shall not be considered in the interpretation
of this Agreement.
Β Β Β Β Β Β Β Β Β Β 1.04 Interpretation of Documents. Except as otherwise expressly set forth in the
body of this Agreement or in any of the Exhibits, in the event of a conflict between the
provisions in the body of this Agreement and the Exhibits, the provisions in the body of this
Agreement shall prevail.
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ARTICLE 2 TERM.
Β Β Β Β Β Β Β Β Β Β 2.01 Initial Term. The initial term of this Agreement shall commence on the Effective
Date and continue until 23:59 (Eastern Standard Time) on the Initial Agreement Expiration Date, or
such other date upon which this Agreement may be terminated in accordance with its terms (the
βInitial Termβ).
Β Β Β Β Β Β Β Β Β Β 2.02 Renewal and Extension. Unless this Agreement is terminated earlier pursuant to the
terms hereof, Customer shall notify Vendor at least 180Β days prior to the Initial Agreement
Expiration Date as to whether Customer desires to renew this Agreement. If Customer provides Vendor
with notice that it desires to renew this Agreement and the Parties have not agreed on the terms
and conditions applicable to the renewal of this Agreement 90Β days prior to the Initial Agreement
Expiration Date, then the term of this Agreement shall expire on the Initial Agreement Expiration
Date.
ARTICLE 3 DESIGNATED SERVICES.
Β Β Β Β Β Β Β Β Β Β 3.01 General. Commencing on the Effective Date and continuing throughout the Term,
Vendor shall be responsible for providing to Customer the services, functions and responsibilities
described in this Agreement (including the services, functions, responsibilities and projects
described in the Statement of Work set forth as ExhibitΒ 1) (the βDesignated
Servicesβ).
Β Β Β Β Β Β Β Β Β Β 3.02 Reports. Vendor shall provide to Customer, utilization and status reports
currently being produced by HMS prior to the Effective Date, set forth in ExhibitΒ 8, and
such other reports necessary or appropriate to enable Customer to review and analyze the provision
of the Services and the accuracy of the Fees charged by Vendor.
ARTICLE 4 OUT-OF-SCOPE SERVICES.
Β Β Β Β Β Β Β Β Β Β 4.01 Out-of-Scope Services. During the Term and Termination Assistance Period,
Customer may request Vendor to perform an Out-of-Scope Service. Upon receipt of a written request
setting forth a description of the services from Customer, Vendor shall provide Customer with a
written proposal in respect of such Out-of-Scope Service, which proposal shall include:
Β | (1) | Β | a description of the services, functions and responsibilities Vendor anticipates performing in connection with such Out-of-Scope Service; |
Β | |||
Β | (2) | Β | a schedule for commencing and completing such Out-of-Scope Service; |
Β | |||
Β | (3) | Β | Vendorβs prospective fees for such Out-of-Scope Service, including a detailed breakdown of such fees, based upon the hourly time and material rates set forth in ExhibitΒ 7, Hourly Rate Schedule; |
Β | |||
Β | (4) | Β | when appropriate, a description of any new Software or Machines to be provided by Vendor in connection with such Out-of-Scope Service; |
8
Β
Β | (5) | Β | when appropriate, the Software and Machines and run-time requirements necessary to develop and operate any new Software; |
Β | |||
Β | (6) | Β | a description of the human resources necessary to provide the Out-of-Scope Service; |
Β | |||
Β | (7) | Β | when appropriate, acceptance test criteria and procedures for any new Software or any products, packages or services; and |
Β | |||
Β | (8) | Β | the hourly time and material rates are outlined in ExhibitΒ 7, Hourly Rate Schedule: |
Vendor shall not begin performing any Out-of-Scope Service until Customer Contract Managers has
provided Vendor with written authorization to perform such Out-of-Scope Service.
ARTICLE 5 CUSTOMER RESPONSIBILITIES.
Β Β Β Β Β Β Β Β Β Β 5.01 Customer Contract Manager. The Customer Contract Manager shall serve as
the primary Customer representative under this Agreement. The Customer Contract Manager shall (1)Β have overall responsibility for managing and coordinating the performance of Customerβs
obligations under this Agreement and (2)Β be authorized to act for and on behalf of Customer with
respect to all matters relating to this Agreement. Notwithstanding the foregoing, the Customer
Contract Manager may, upon notice to Vendor, delegate such of his or her responsibilities to other
Customer employees, as the Customer Contract Manager deems appropriate.
Β Β Β Β Β Β Β Β Β Β 5.02 Use of Customer Facilities. Upon Vendorβs request, Customer shall grant
Vendor access to and appropriate working space in the Customer Service Locations as reasonably
necessary for the sole and exclusive purpose of the Vendor providing the Services. Vendor
shall
provide to the Customer Contract Manager a list of the names of the personnel of Vendor or of
authorized Vendor subcontractors to be granted such access on the date hereof and as necessary thereafter specifying the Customer Service Location(s) to which each such person is to be admitted. All such personnel of Vendor or authorized subcontractors shall bear valid identification to enter any Customer Service Location.
authorized Vendor subcontractors to be granted such access on the date hereof and as necessary thereafter specifying the Customer Service Location(s) to which each such person is to be admitted. All such personnel of Vendor or authorized subcontractors shall bear valid identification to enter any Customer Service Location.
ARTICLE 6 SERVICE LEVELS.
Β Β Β Β Β Β Β Β Β Β 6.01 Designated Service Levels. Vendor shall perform the Designated Services in
accordance with the Designated Service Levels and in accordance with ExhibitΒ 5.
Β Β Β Β Β Β Β Β Β Β 6.02 Out-of-Scope Service Levels. Vendor shall provide the Out-of-Scope Services
at least at the Out-of-Scope Service Levels applicable to such Out-of-Scope Services.
Β Β Β Β Β Β Β Β Β Β 6.03 Adjustment of Service Levels. The Contract Managers (1)Β shall review the Service
Levels for the preceding 12Β months during the last calendar quarter of every Contract Year,
(2)Β with respect to any Service Level subject to periodic adjustment pursuant to an express
provision of this Agreement, if such Service Level is no longer appropriate because of an increase,
decrease or change to the needs of Customer or the scale or nature of the Services, shall negotiate
in good faith and reach mutual agreement on adjustment of the Service Levels for the subsequent
Contract Year and, (3)Β with respect to all other Service Levels, may by mutual agreement adjust the
9
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Service Levels for the subsequent Contract Year. In addition, either Party may, at any time upon
notice to the other Party, initiate negotiations to review and, upon agreement by the Contract
Managers, adjust any Service Level which such Party in good faith believes is inappropriate at the
time.
Β Β Β Β Β Β Β Β Β Β 6.04 Root-Cause Analysis. In the event Vendor fails to achieve any Service Level,
Vendor shall, as soon as reasonably practicable, (1)Β perform a root-cause analysis to identify the
cause of such failure, (2)Β provide Customer with a report detailing the cause of, and procedure for
correcting, such failure, (3)Β upon Customerβs approval of such procedure, implement such procedure
and (4)Β provide Customer with assurance satisfactory to Customer that such failure will not recur
following the completion of the implementation of the procedure.
Β Β Β Β Β Β Β Β Β Β 6.05 Service Level Reporting. Vendor shall measure and report its performance against
the Service Levels and meet with Customer at least once every month during the Term, or more
frequently if requested by Customer, to review Customerβs actual performance against the Service
Levels and discuss any remedial action necessary or appropriate to correct any deficiencies.
Β Β Β Β Β Β Β Β Β Β 6.06 Measurement and Monitoring Tools. As of the Effective Date, Vendor shall use
existing measurement and monitoring Tools and procedures required to measure and report (as
contemplated by SectionΒ 7.05) Vendorβs performance of the Services against the applicable
Service Levels. Such measurement and monitoring and procedures shall (1)Β permit reporting at a
level of detail sufficient to verify compliance with the Service Levels and (2)Β be subject to audit
by Customer or Customer Agents. Vendor shall provide Customer and its designees with information
concerning access to such measurement and monitoring Tools and procedures upon request, for
inspection and verification purposes.
Β Β Β Β Β Β Β Β Β Β 6.07 Performance Credits. In the event of a failure to provide the Services in
accordance with the applicable Service Levels, Vendor shall incur the Performance Credits
identified in and according to the schedule set forth in ExhibitΒ 5.
Β Β Β Β Β Β Β Β Β Β 6.08 Semi-Annual Status Meeting.
When requested by either party, the Designated Executives and Contract Managers of each Party shall
meet semi-annually to discuss the Services and the administration of this Agreement.
Β Β Β Β Β Β Β Β Β Β 6.09 Changes in Law. The Parties acknowledge that the business of Accordis and HMS is
conducted in a regulated environment subject to changes in Laws and the maintenance of Governmental
Approvals. If either Party is aware of or believes that such a change or reinterpretation of Law
has occurred, or that a Governmental Approval or a filing with a Governmental Authority is
required, must be sought or submitted anew or modified (collectively, a βChange in Lawβ), within a
reasonable period of time thereafter that Party shall provide written notice to the other Party of
such Change in Law, and the Parties shall commence negotiations regarding proposed amendments to
the Agreement or changes to the Services that will bring the Agreement into compliance with the Law
or Governmental Approvals, and each Party shall negotiate such potential changes in good faith in
an effort to obtain such compliance. If the parties cannot agree in good faith upon such
modifications to the Agreement or the Services, then (a)Β Customer shall initiate the Change Control
Procedures by submitting a Change Request setting forth the reasonable minimum number of changes to
the Services necessitated, in the good faith
10
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assessment of Customer, by the Change in Law, and (b)Β Vendor shall respond to such Change Request
by setting forth, inter alia, its good faith assessment of the minimum changes to the Services
necessitated by such Change Request and reflecting a change in the fees hereunder based solely on
Vendorβs good faith assessment of the incremental work required of Vendor to implement such Change
Request. Customer may accept such proposal of Vendor, but if Customer declines to accept such
proposal, Customer may terminate this Agreement within 90Β days.
ARTICLE 7 SERVICE LOCATIONS.
Β Β Β Β Β Β Β Β Β Β 7.01 Service Locations. The Services shall be provided to Customer from (1)Β the Service
Locations and (2)Β any other location for which Vendor has received Customerβs approval, such
approval shall not be reasonably withheld. Unless otherwise agreed by the Parties, if Customer
elects to move any Customer Service Location, then Customer shall bear any incremental expenses of
Vendor incurred as a result of such relocation; provided, however, that Vendor shall bear any
incremental expenses of Vendor incurred as a result of a relocation of the 000 Xxxx Xxxxxx Xxxxx
Customer Service Location identified in PartΒ B of ExhibitΒ 3, Service Locations. Unless
otherwise agreed by the Parties, if Vendor elects to move any Vendor Service Location it may do so
at will, but Vendor shall bear any incremental expenses of Customer incurred as a result of such
relocation.
Β Β Β Β Β Β Β Β Β Β 7.02 Safety and Security Procedures. Vendor shall maintain and enforce its current
safety and security procedures at the Service Locations.
Β Β Β Β Β Β Β Β Β Β 7.03 Data Security. Vendor shall store all Customer Data in accordance with the Data
Safeguards. In the event Vendor intends to implement a change to the Data Safeguards, Vendor
shall notify Customer and, upon Customerβs approval, implement such change. In the event Vendor or
Vendor Agents discovers or is notified of a breach or potential breach of security relating to
Customer Data, Vendor shall immediately (1)Β notify the Customer Contract Managers of such breach or
potential breach and, (2)Β if the applicable Customer Data was in the possession of Vendor or Vendor
Agents at the time of such breach or potential breach, Vendor shall
(a)Β investigate and mitigate the effects of the breach or potential breach and (b)Β provide Customer
with assurance satisfactory to Customer that such breach or potential breach will not recur.
Β Β Β Β Β Β Β Β Β Β 7.04 No Viruses. Each Party covenants to the other Party that such Party shall use
commercially reasonable efforts to ensure that there are no Viruses or similar malicious coding in
any software provided or used by such Party in connection with the Services. Vendor agrees that, if
a Virus is found to have been introduced into such software from any source, Vendor shall use
commercially reasonable efforts to eliminate the Virus, at Vendorβs expense if such Virus was
introduced into its systems, intentionally or not, by Vendor or any of its employees or
subcontractors.
Β Β Β Β Β Β Β Β Β Β 7.05 Access to Premises. During the Term and any Termination Period, Vendor shall
provide the Customer Access Manager with reasonable access to the physical premises of the Vendor
Service Locations. The purposes for which such access may be requested shall include third party
tours of the premises for marketing of the services of Customer. Reasonable security and safety
requirements of Vendor will be observed by Customer at all times while on Vendorβs premises.
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ARTICLE 8 VENDOR CONTRACT MANAGER AND SUBCONTRACTING.
Β Β Β Β Β Β Β Β Β Β 8.01 Vendor Contract Manager. The Vendor Contract Manager shall serve as the primary
Vendor representative under this Agreement. Vendorβs appointment of any Vendor Contract Manager
shall be subject to Customerβs prior approval. The Vendor Contract Manager shall (1)Β have overall
responsibility for managing and coordinating the performance of Vendorβs obligations under this
Agreement and (2)Β be authorized to act for and on behalf of Vendor with respect to all matters
relating to this Agreement. Vendor shall not replace or reassign the Vendor Contract Manager for
one year from the Effective Date, unless Customer consents to such reassignment or replacement or
such individual (i)Β voluntarily resigns from Vendor, (ii)Β is dismissed by Vendor for misconduct
(e.g., fraud, drug abuse, theft), (iii)Β fails to perform his or her duties and responsibilities
pursuant to this Agreement or (iv)Β dies or is unable to work due to his or her disability.
Notwithstanding the foregoing, the Vendor Contract Manager may, upon notice to Customer, delegate
such of his or her responsibilities to other Vendor employees, as the Vendor Contract Manager deems
appropriate, provided that the Vendor Contract Manager shall retain ultimate authority as Vendor
representative.
Β Β Β Β Β Β Β Β Β Β 8.02 Project Staff. Vendor shall appoint to the project staff individuals with
suitable training and skills to perform the Services.
Β Β Β Β Β Β Β Β Β Β 8.03 Subcontractors. With respect to subcontracting, Customer and Vendor
agree that:
Β | (1) | Β | Vendor shall not subcontract any of its duties under this Agreement without the prior written authorization of Customer, such consent not to be unreasonably withheld, conditioned or delayed; |
Β | |||
Β | (2) | Β | no subcontracting shall release Vendor from its responsibility for its obligations under this Agreement. Vendor shall be responsible for the work and activities of each of the Vendor Agents, including compliance with the terms of this Agreement. Vendor shall be responsible for all payments to its subcontractors; and |
Β | |||
Β | (2) | Β | Vendor shall promptly pay for all services, materials, equipment and labor used by Vendor in providing the Services. |
Β | |||
Β | (3) | Β | All subcontractors shall agree in writing to be subject to the Confidentiality provisions of this Agreement. |
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ARTICLE 9 MANAGEMENT AND CONTROL.
Β Β Β Β Β Β Β Β Β Β 9.01 Contract Managers. Customer Contract Managers shall maintain a written log of
problems regarding the provision of the Services and Service Levels and Customer Contract Managers
shall send a copy of such written log to the Vendor Contract Manager each week. At the request of
either party, the Contract Managers shall meet in person or by video conference during the Term to
discuss (1)Β Customerβs current and anticipated needs for the Services and (2)Β disagreements
regarding the provision of the Services and Service Levels as described in the Customer Contract
Managerβs written log.
Β Β Β Β Β Β Β Β Β Β 9.02 Change Control Procedures. The Change Control Procedures are set forth in
ExhibitΒ 10.
ARTICLE 10 PROPRIETARY RIGHTS.
Β Β Β Β Β Β Β Β Β Β 10.01 Third Party Software. Vendor represents and warrants to Customer that it has the
right and authority to Use the Third Party Software to perform the Services and otherwise to comply
with the terms and conditions of this Agreement. Vendor hereby grants to Customer, during the Term
and Termination Assistance Period, a non-exclusive, non-transferable, limited license to Use,
sublicense, and permit Customer Agents to Use, solely in connection providing goods or services to,
or purchasing goods or services from, Customer, the Third Party Software. Upon Customerβs request,
Vendor shall provide Customer with a list of all Third Party Software being used to provide the
Services as of the date of such request. Customer shall have the right to request additional Third
Party Software, it being understood that any such additional software would be provided at
Customerβs expense for fees and transaction costs of Vendor. Vendor will supply a cost estimate to
Vendor Contract Manager for approval prior to any new Third Party Software is provided.
ARTICLE 11 DATA.
Β Β Β Β Β Β Β Β Β Β 11.01 Ownership of Customer Data. All Customer Data is, or will be, and shall remain
the property of Customer. Without Customerβs approval (in its sole discretion), the Customer Data
shall not (1)Β be used by Vendor or Vendor Agents other than in connection with providing the
Services, (2)Β be disclosed, sold, assigned, leased or otherwise provided to third parties by Vendor
or Vendor Agents or (3)Β be commercially exploited by or on behalf of Vendor or Vendor Agents.
Vendor hereby irrevocably assigns, transfers and conveys, and shall cause Vendor Agents to assign,
transfer and convey, to Customer without further consideration all of its and their right, title
and interest in and to the Customer Data. Upon request by Customer, Vendor shall execute and
deliver, and shall cause Vendor Agents to execute and deliver, any financing statements or other
documents that may be necessary or desirable under any Law to preserve, or enable Customer to
enforce, its rights with respect to the Customer Data.
Β Β Β Β Β Β Β Β Β Β 11.02 Return of Data. Upon Customerβs request at any time during the Term, and upon
expiration or termination of this Agreement, Vendor shall (1)Β promptly return to Customer, all or
any part of Customer Data and (2)Β erase or destroy all or any part of Customer Data in Vendorβs
possession or under its control, in each case, to the extent requested by Customer.
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ARTICLE 12 LIMITATION OF LIABILITY
Β Β Β Β Β Β Β Β Β Β 12.01 Disclaimer. UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS AFFILIATES, LICENSORS
OR SUBCONTRACTORS BE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
OTHER INDIRECT DAMAGES, INCLUDING (1)Β SUCH DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA, (2)
LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR ANY OTHER
OBLIGATIONS OF EITHER PARTY RELATING TO THIS AGREEMENT, IN EACH CASE WHETHER OR NOT SUCH PARTY, ITS
AFFILIATES, LICENSORS OR SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Β Β Β Β Β Β Β Β Β Β 12.02 Limitation. Vendorβs aggregate liability, whether in contract, tort, or
otherwise, arising out of or in connection with the Services or this Agreement at any time shall
not exceed the amount of Designated Fees paid or payable to Vendor for the then-current twelve (12)
months of Services hereunder. Customerβs aggregate liability, whether in contract, tort, or
otherwise, arising out of or in connect with this Agreement shall not exceed the amount due and
payable hereunder for Services actually rendered.
ARTICLE 13 DISASTER RECOVERY AND FORCE MAJEURE EVENTS.
Β Β Β Β Β Β Β Β Β Β 13.01 Disaster Recovery Plan. At Vendorβs expense, Vendor shall maintain a third-party
disaster recovery agreement (the βDRPβ) with a service provider (the βDisaster Recovery
Vendorβ) that encompasses maintenance of a backup data center for emergency replacement of the
Services. As part of the Services hereunder, Vendor shall maintain the DRP in force, shall
supervise the preparations of the Disaster Recovery Vendor pursuant to the DRP, and shall perform
the Services using the Disaster Recovery Vendor and its data center and other facilities
immediately upon any occurrence prompting such use. Vendor shall notify the Customer Contract
Managers immediately upon the occurrence of a disaster or Force Majeure Event that prevents or will
prevent a Vendor Service Location from being available for more than 24 hours. In such event, upon
the reasonable request of Customer, Vendor shall implement the disaster recovery transition
procedures set forth in ExhibitΒ 11.
Β Β Β Β Β Β Β Β Β Β 13.02 Force Majeure. If and to the extent that a Partyβs performance of any of its
obligations pursuant to this Agreement is prevented, hindered or delayed by fire, flood,
earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders,
rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party
(each, a βForce Majeure Eventβ), and such non-performance, hindrance or delay could not
have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party
shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations
affected by the Force Majeure Event for as long as such Force Majeure Event continues and such
Party continues to use its best efforts to recommence performance whenever and to whatever extent
possible without delay, including through the use of alternate sources, workaround plans or other
means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall
immediately notify the other Party of the occurrence of the Force Majeure Event and describe in
reasonable
14
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detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not
excuse, limit or otherwise affect Vendorβs obligation to use best efforts to provide normal
recovery procedures or other obligations described in SectionΒ 13.01 or ExhibitΒ 11.
Β Β Β Β Β Β Β Β Β Β 13.03 Alternate Source.
Β | (1) | Β | In the event of a disaster or a Force Majeure Event, Customer may procure the Services from an alternate source. |
Β | |||
Β | (2) | Β | Customer shall consider in good faith any proposal made by Vendor regarding an alternate source provider, provided that the alternate source provider proposed by Vendor is capable of providing the Services at the Service Levels. |
Β | |||
Β | (3) | Β | If a disaster or Force Majeure Event continues to prevent, hinder or delay the performance of the Services by Vendor for more than 60Β days either Party may terminate this Agreement without regard to SectionΒ 22.02, as of the date specified by either Party in its termination notice to the other Party. |
Β Β Β Β Β Β Β Β Β Β 13.04 No Payment for Unperformed Services. Except as provided in
SectionΒ 13.02, nothing in this Article shall limit Customerβs obligation to pay any Fees;
provided, however, that if Vendor fails to provide the Services in accordance with this Agreement
due to the occurrence of a Force Majeure Event or disaster the Fees shall be adjusted in a manner
such that Customer is not responsible for the payment of any Fees for those Services that Vendor
fails to provide.
Β Β Β Β Β Β Β Β Β Β 13.05. Insurance. During the Term and Termination Period, Vendor shall at all
times keep and maintain at least the following insurance coverages and limits of liability:
Β Β Β Β Β Β Β Β Β Β (1)Β Commercial General Liability including coverage for (a)Β premises/operations, (b)
independent contractors, (c)Β products/completed operations, (d)Β personal and advertising injury,
(e)Β contractual liability, and (f)Β explosion, collapse and underground hazards, with combined
single limit of not less than $1,000,000 each occurrence or its equivalent;
Β Β Β Β Β Β Β Β Β Β (2)Β Workerβs Compensation in amounts required by applicable law and Employerβs
Liability with a limit of at least $1,000,000 each accident;
Β Β Β Β Β Β Β Β Β Β (3)Β Automobile Liability including coverage for owned/leased, non-owned or hired automobiles
with combined single limit of not less than $1,000,000 each accident;
Β Β Β Β Β Β Β Β Β Β (4)Β General Commercial Liability for death or personal injury and damage to tangible personal
property with limits of not less than $1,000,000 per occurrence; and
Β Β Β Β Β Β Β Β Β Β (5)Β Errors and Omissions Coverage with a limit of at least $1,000,000 each occurrence.
Β Β Β Β Β Β Β Β Β Β Such insurance coverages or limits of liability shall not be changed unless at least thirty
(30)Β daysβ notice is given to Customer. If requested by Customer, Vendor shall deliver a
Certificate of Insurance evidencing such coverages and limits of liability.
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ARTICLE 14 PAYMENTS AND INVOICING.
Β Β Β Β Β Β Β Β Β Β 14.01 General. In consideration of Vendor providing the Designated Services, Customer
shall pay to Vendor the Designated Fees in accordance with SectionΒ 14.02. Except as expressly set
forth in this Agreement, there shall be no charges or fees due from Customer, or payable to Vendor,
in respect of Vendorβs performance of its obligations pursuant to this Agreement.
Β Β Β Β Β Β Β Β Β Β 14.02 Designated Fees. Vendor shall submit invoices to Customer for the Designated
Services monthly in arrears on the terms of net 30Β days.
Β Β Β Β Β Β Β Β Β Β 14.03 Time of Payment. Any sum due to Vendor pursuant to this Agreement for Services
other than Designated Services, unless payment terms are otherwise specified expressly herein,
shall be due and payable 30Β days after receipt by Customer of an invoice from Vendor following
performance of such Services.
Β Β Β Β Β Β Β Β Β Β 14.04 Adjustments to Fees. Except for changes to the Fees due to the inclusion of
Out-of-Scope Services, exceeding maximums in ExhibitΒ 6, In Scope Maximums, exceeding the
number of hours in ExhibitΒ 1, Statement Of Work, SectionΒ XIV and XV, Performance Credits
for Customerβs benefit pursuant to ExhibitΒ 5, Service Levels and Performance Credits or
other Changes implemented through the Change Control Process, there shall be no adjustments to the
Fees.
Β Β Β Β Β Β Β Β Β Β 14.05 Unused Credits. Any unused credits against future payments owed to either Party
by the other pursuant to this Agreement shall be paid to the applicable Party within 30Β days of the
earlier of the expiration or termination of this Agreement.
Β Β Β Β Β Β Β Β Β Β 14.06 Late Payments. Any amount that is payable to Vendor pursuant to this Agreement
and not paid pursuant to the terms of this Agreement shall bear interest from the due date at the
lesser of the rate of one (1.0%) percent per month or the maximum permitted by law. All costs of
collection, including reasonable attorneyβs fees, shall be paid by Customer.
ARTICLE 15 AUDITS.
Β Β Β Β Β Β Β Β Β Β 15.01 Services. Upon reasonable advance notice from Customer, Vendor and Vendor Agents
shall provide Customer, Customer Agents, and any of Customerβs regulators with access to and any
assistance that they may require with respect to the Service Locations and the Systems for the
purpose of performing audits or inspections of the Services and the business of Customer relating
to the Services. Such audits may occur no more often than once in any six (6)Β month period, in
which case Customer shall pay for any such additional audits at the same rates applicable to Out of
Scope Services under this Agreement.
Β Β Β Β Β Β Β Β Β Β 15.02 Record Retention. Vendor shall retain records and supporting documentation
sufficient to document the Services and the charges paid or payable by Customer under this
Agreement in accordance with Customerβs then-current record retention procedures, as in effect from
time to time.
Β Β Β Β Β Β Β Β Β Β 15.03 Facilities. Vendor shall provide to Customer and Customer Agents, on
Vendorβs premises (or, if the audit is being performed of a Vendor Agent, the Vendor Agentβs
premises if necessary), space, office furnishings (including lockable cabinets), telephone
and
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facsimile services, utilities and office-related equipment and duplicating services as Customer or
such Customer Agents may reasonably require to perform the audits described in this Article.
ARTICLE 16 CONFIDENTIALITY.
Β Β Β Β Β Β Β Β Β Β 16.01 General Obligations. Parties agree that all Confidential Information shall be
held in confidence by the recipient to the same extent and in at least the same manner as the
recipient protects its own confidential information. Neither Customer nor Vendor shall disclose,
publish, release, transfer or otherwise make available Confidential Information of, or obtained
from, the other in any form to, or for the use or benefit of, any person or entity without the
disclosing Partyβs consent. Each of Customer and Vendor shall, however, be permitted to disclose
relevant aspects of the otherβs Confidential Information to its officers, directors, agents,
professional advisors, contractors subcontractors and employees and to the officers, directors,
agents, professional advisors, contractors, subcontractors and employees of its Affiliates, to the
extent such disclosure is not restricted under any Consents or any Governmental Approvals and only
to the extent that such disclosure is reasonably necessary for the performance of its duties and
obligations or the determination, preservation or exercise of its rights and remedies under this
Agreement; provided, however, that the recipient shall take all reasonable measures to ensure that
Confidential Information of the disclosing Party is not disclosed or duplicated in contravention of
the provisions of this Agreement by such officers, directors, agents, professional advisors,
contractors, subcontractors and employees. The obligations in this Section shall not restrict any
disclosure pursuant to any Law (provided that the recipient shall give prompt notice to the
disclosing Party of such order).
Β Β Β Β Β Β Β Β Β Β 16.02 Unauthorized Acts. Without limiting a Partyβs rights in respect of a breach of
this Article, each Party shall:
Β | (1) | Β | promptly notify the other Party of any unauthorized possession, use or knowledge, or attempt thereof, of the other Partyβs Confidential Information by any person or entity that may become known to such Party; |
Β | |||
Β | (2) | Β | promptly furnish to the other Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and assist the other Party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information; |
Β | |||
Β | (3) | Β | cooperate with the other Party in any litigation and investigation against third parties deemed necessary by the other Party to protect its proprietary rights; and |
Β | |||
Β | (4) | Β | promptly use its best efforts to prevent a recurrence of any such unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information. |
Each Party shall bear the cost it incurs as a result of compliance with this Section.
17
Β
ARTICLE 17 REPRESENTATIONS AND WARRANTIES.
Β Β Β Β Β Β Β Β Β Β 17.01 By Customer. Customer represents and warrants to Vendor that:
Β | (1) | Β | Customer is a corporation validly existing and in good standing under the Laws of Delaware; |
Β | |||
Β | (2) | Β | Customer has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; |
Β | |||
Β | (3) | Β | the execution, delivery and performance of this Agreement by Customer (a)Β has been duly authorized by Customer and (b)Β will not conflict with, result in a breach of, or constitute a default under, any other agreement to which Customer is a party or by which Customer is bound. |
Β Β Β Β Β Β Β Β Β Β 17.02 By Vendor. Vendor represents and warrants to Customer that:
Β | (1) | Β | Vendor is a corporation validly existing and in good standing under the Laws of New York; |
Β | |||
Β | (2) | Β | Vendor has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; |
Β | |||
Β | (3) | Β | the execution, delivery and performance of this Agreement by Vendor (a)Β has been duly authorized by Vendor, (b)Β will not conflict with, result in a breach of, or constitute a default under, any other agreement to which Vendor is a party or by which Vendor is bound and (c)Β does not require any Customer Consents or Vendor Consents that have not already been obtained; |
Β | |||
Β | (4) | Β | Vendor is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except where the failure to be so licensed, authorized or qualified would not have a material adverse effect on Vendorβs ability to fulfill its obligations under this Agreement; |
Β | |||
Β | (5) | Β | Vendor is in compliance with all Laws applicable to Vendor and has obtained all applicable permits and licenses required of Vendor in connection with its obligations under this Agreement; |
Β | |||
Β | (6) | Β | there is no outstanding litigation, arbitrated matter or other dispute or administrative proceeding to which Vendor is a party which, if decided unfavorably to Vendor, would reasonably be expected to have a material adverse effect on Vendorβs ability to fulfill its obligations under this Agreement; |
Β | |||
Β | (7) | Β | the provision of the Designated Services to Customer under this Agreement, together with the use of the other information technology-related resources and personnel of Accordis and HRM immediately following the Closing under the SPA, |
18
Β
Β | Β | Β | shall suffice to provide all technology-related resources necessary for the operation of the businesses of Accordis and HRM as conducted during the six-month period prior to the Effective Date; |
Β | |||
Β | (8) | Β | the entry into this Agreement and the consummation of the Closing under the SPA and the transactions contemplated thereby shall not require any change to the information technology practices of Accordis and HRM during the six-month period prior to the Effective Date either under their express terms hereof or in order to render the representation in the preceding subsection valid; |
Β | |||
Β | (9) | Β | None of the Vendor Machines contain Viruses and, consistent with reasonable best practices in information technology, Vendor operates automated searches for and firewalls to prevent the introduction of Viruses in the Vendor Machines; and |
Β | |||
Β | (10) | Β | The Vendor Machines and Vendorβs related systems have not been subject to any Denial-of-Service attack, successful physical or logical intrusion by unauthorized persons, or other breach of security in the previous year, and Vendor has established physical and logical security for the Vendor Machines and related systems, and backup procedures and facilities for the same, consistent with reasonable best practices in information technology. All security audits, security analyses and intentional security probes and attacks relating to the Vendor Machines and related systems, and all reports relating thereto, have previously been disclosed to Customer. |
Β Β Β Β Β Β Β Β Β Β 17.03 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER CUSTOMER
NOR VENDOR MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THE SYSTEMS AND
EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
NOTHING IN THIS SECTION 17.03 SHALL BE DEEMED TO LIMIT OR DISCLAIM ANY REPRESENTATION OR WARRANTY
IN THE SPA OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREUNDER (APART FROM THIS AGREEMENT).
ARTICLE 18 ADDITIONAL COVENANTS.
Β Β Β Β Β Β Β Β Β Β 18.01 By Customer. Customer covenants and agrees with Vendor that, during the Term and
the Termination Assistance Period that Customer shall comply with all Laws applicable to Customer
and, except as otherwise provided in this Agreement, shall obtain all applicable permits and
licenses required of Customer, to the extent required to comply with its obligations under this
Agreement.
Β Β Β Β Β Β Β Β Β Β 18.02 By Vendor. Vendor covenants and agrees with Customer that, during the Term and
the Termination Assistance Period:
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Β
Β | (1) | Β | Vendor shall comply with all Laws applicable to Vendor and shall obtain all applicable permits and licenses required of Vendor in connection with its obligations under this Agreement; |
Β | |||
Β | (2) | Β | Vendor shall comply with the Business Associates Agreement set forth in ExhibitΒ 12. |
ARTICLE 19 DISPUTE RESOLUTION.
Β Β Β Β Β Β Β Β Β Β 19.01 Contract Managers. Any dispute arising under this Agreement shall be considered
in person or by telephone by the Contract Managers within seven business days after receipt of a
notice from either Party specifying the nature of the dispute; provided, however, that a dispute
relating to SectionΒ 11.02, ArticleΒ 17 or ArticleΒ 23 shall not be subject to
this Section. If for any reason, including failure to meet or communicate, the Contract Managers
have not resolved such dispute to the satisfaction of either Party within seven business days, then
either of the Customer Contract Managers or the Vendor Contract Manager may immediately refer such
dispute to the Designated Executives. The Designated Executives shall make a good faith attempt to
consider and resolve such dispute in person or by telephone within fifteen business days of the
date such dispute is referred to them. If for any reason the Designated Executives have not
resolved such dispute within fifteen business days of the date such dispute was referred to it,
then either Party may pursue its rights and remedies under SectionΒ 19.02.
Β Β Β Β Β Β Β Β Β Β 19.02 Arbitration. Any dispute not settled pursuant SectionΒ 19.01 shall be
finally and exclusively settled by binding arbitration and, unless otherwise agreed by the
Parties, the following procedure:
Β | (1) | Β | the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (βAAAβ) and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; |
Β | |||
Β | (2) | Β | the arbitration shall be conducted in New York, New York; |
Β | |||
Β | (3) | Β | either Party may, without inconsistency with this Agreement, seek from a court any interim or provisional relief that may be necessary to protect the rights or property of that Party pending the establishment of the arbitral tribunal; |
Β | |||
Β | (4) | Β | the arbitrator shall have a background in, and knowledge of, the information technology services industry and shall be an appropriate person based on the nature of the dispute; and |
Β | |||
Β | (5) | Β | the Parties shall appoint a single arbitrator who shall perform the arbitration; provided that, if the Parties cannot agree on that single arbitrator within thirty (30)Β days of the request of either Party, then the single arbitrator shall be appointed by the President of the AAA. |
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Β
Notwithstanding the foregoing, if disputes are being arbitrated under the SPA, any disputes under
this Agreement shall be arbitrated in that same proceeding under the arbitration provisions set
forth in the SPA.
ARTICLE 20 TERMINATION.
Β Β Β Β Β Β Β Β Β Β 20.01 Termination for Cause.
Β | (1) | Β | If Vendor materially defaults in the performance of any of its material obligations under this Agreement (except as provided in SectionΒ 19.02), and does not cure such default within thirty (30)Β days after receipt of a notice of default from Customer, then Customer may, by giving notice to Vendor, terminate this Agreement, in whole or in part, as of the termination date specified in the notice; provided that, Customer and Vendor agree that, if Vendor fails to provide any Services under this Agreement, such failure shall constitute a disaster for the purposes of ArticleΒ 13 and the Parties shall follow the process for identifying an Alternate Source set forth under SectionΒ 13.03 hereof. |
Β | |||
Β | (2) | Β | If Customer fails to make payments due to Vendor under this Agreement and does not cure such default within thirty (30)Β days after receipt of a notice of default from Vendor, then Vendor may, by giving notice to Customer, terminate this Agreement in whole as of the termination date specified in the notice. |
Β Β Β Β Β Β Β Β Β Β 20.02 Termination for Insolvency. This Agreement may be terminated by either Party,
upon notice to the other Party, (i)Β if such Party becomes insolvent, (ii)Β upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of
its debts, (iii)Β upon such Partyβs making a general assignment for the benefit of credits, or (iv)
upon such Partyβs dissolution or ceasing to conduct business in the normal course.
Β Β Β Β Β Β Β Β Β Β 20.03 No Cross-Defaults. No breach of the SPA or the other transactions contemplated
thereunder by one Party shall be deemed a breach hereof or a basis for the non-breaching Party to
terminate this Agreement or the transactions contemplated hereunder, and vice versa.
Β Β Β Β Β Β Β Β Β Β 20.04 Termination by Customer. At any time after the first twenty-four months of
the Initial Term, Customer may elect to terminate this Agreement by providing notice at least
six months prior to such termination, such termination to be effective no sooner than thirty
months after the commencement of the Initial Term.
ARTICLE 21 TERMINATION ASSISTANCE.
Upon Customerβs request, Vendor shall, during the Termination Assistance Period, provide the
Termination Assistance Services. Customer shall pay to Vendor the following fees for the
Termination Assistances Services: (1)Β with respect to the Designated Services, the Designated Fees,
(2)Β with respect to Out-of-Scope Services, an amount calculated pursuant to ExhibitΒ 7, Hourly
Rate Schedule for such services and (3)Β any incremental, out-of-pocket expenses incurred
21
Β
by Vendor in connection with the Termination Assistance Services and approved in advance by
Customer. The quality and level of performance of the Services shall not be degraded during the
Termination Assistance Period. After the expiration of the Termination Assistance Period, Vendor
shall (1)Β answer questions from Customer regarding the Services on an βas neededβ basis at
Vendorβs then-standard billing rates and (2)Β promptly deliver to Customer any remaining
Customer-owned reports and documentation still in Vendorβs possession.
ARTICLE 22 INDEMNITIES.
Β Β Β Β Β Β Β Β Β Β 22.01 Indemnity by Customer. Customer shall indemnify Vendor from, and
defend and hold Vendor harmless from and against, any Losses suffered, incurred or
sustained by Vendor or to which Vendor becomes subject, resulting from, arising out of or relating to any claim:
Β | (1) | Β | arising from the Customer Data, provided that such claim is not due to Vendorβs breach of Law or any duty hereunder; |
Β | |||
Β | (2) | Β | relating to any amounts, including taxes, interest and penalties, assessed against Vendor which are the obligation of Customer; |
Β | |||
Β | (3) | Β | relating to personal injury (including death) or third party property loss or damage resulting from Customerβs or Customers Agentsβ acts or omissions; |
Β | |||
Β | (4) | Β | relating to a breach of Articles 16, 17 or 18. |
Customer shall indemnify Vendor from any costs and expenses, including reasonable
attorney fees, incurred in connection with the enforcement of this Section.
Β Β Β Β Β Β Β Β Β Β 22.02 Indemnity by Vendor. Vendor shall indemnify Customer from, and defend and hold Customer harmless from and against, any Losses suffered, incurred or sustained by
Customer or to which Customer becomes subject, resulting from, arising out of or relating to any claim:
Β | (1) | Β | arising from the Customer Data, provided that such claim is due to Vendorβs breach of Law or a duty hereunder; |
Β | |||
Β | (2) | Β | relating to personal injury (including death) or third party property loss or damage resulting from Vendorβs or Vendor Agentsβ acts or omissions; |
Β | |||
Β | (3) | Β | relating to any amounts, including taxes, interest and penalties, assessed against Customer which are the obligation of Vendor; |
Β | |||
Β | (4) | Β | relating to a breach of Articles 10, 16, 17 or 18 of the Business Associates Agreement set forth in ExhibitΒ 12. |
22
Β
Vendor shall indemnify Customer from any costs and expenses, including reasonable attorney fees,
incurred in connection with the enforcement of this Section.
Β Β Β Β Β Β Β Β Β Β 22.03 Indemnification Procedures. If any third party claim is commenced against a
Party entitled to indemnification under SectionΒ 25.01 or SectionΒ 25.02 (as applicable, the
βIndemnified Partyβ), notice thereof shall be given to the Party that is obligated to
provide indemnification (as applicable, the βIndemnifying Partyβ) as promptly as
practicable. If, after such notice, the Indemnifying Party acknowledges that this Agreement applies
with respect to such claim, then the Indemnifying Party shall be entitled, if it so elects, in a
notice promptly delivered to the Indemnified Party, but in no event less than 10Β days prior to the
date on which a response to such claim is due, to immediately take control of the defense and
investigation of such claim and to employ and engage attorneys reasonably acceptable to the
Indemnified Party to handle and defend the same, at the Indemnifying Partyβs sole cost and expense.
The Indemnified Party shall cooperate, at the cost of the Indemnifying Party, in all reasonable
respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of
such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at
its own cost and expense, participate, through its attorneys or otherwise, in such investigation,
trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that
involves a remedy other than the payment of money by the Indemnifying Party shall be entered into
without the consent of the Indemnified Party. After notice by the Indemnifying Party to the
Indemnified Party of its election to assume full control of the defense of any such claim, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred
thereafter by such Indemnified Party in connection with the defense of that claim. If the
Indemnifying Party does not assume full control over the defense of a claim subject to such defense
as provided in this Section, the Indemnifying Party may participate in such defense, at its sole
cost and expense, and the Indemnified Party shall have the right to defend the claim in such manner
as it may deem appropriate, at the cost and expense of the Indemnifying Party.
Β Β Β Β Β Β Β Β Β Β 22.04 SPA Indemnification. Notwithstanding anything to the contrary in this
Agreement, if any Damages (as defined in the SPA) are subject to indemnification rights of Customer
or Vendor under the SPA, then those Damages shall not be subject to the indemnification rights of
Customer or Vendor set forth in this ArticleΒ 22.
ARTICLE 23 MISCELLANEOUS PROVISIONS.
Β Β Β Β Β Β Β Β Β Β 23.01 Assignment. Customer shall not, without the consent of Vendor, assign this
Agreement or any amounts payable pursuant to this Agreement, except that Customer may assign this
Agreement, in whole or in part, to an Affiliate or another entity or business unit of Customer or
pursuant to a reorganization or Change in Control of Customer without such consent, so long as such
assignment is effected in connection with a transfer of the Accordis business. Vendor shall not,
without the consent of Customer, assign this Agreement, except as provided in SectionΒ 8.12 of the
SPA. The consent of a Party to any assignment of this Agreement shall not constitute such Partyβs
consent to further assignment. This Agreement shall be binding on the Parties and their respective
successors and permitted assigns. Any assignment in contravention of this subsection shall be void.
23
Β
Β Β Β Β Β Β Β Β Β Β 23.02 Notices. All notices and other communications under this Agreement shall be in writing
and shall be deemed given when delivered personally, mailed by certified mail, return receipt
requested, or by overnight mail, to the parties (and shall also be transmitted by facsimile to the
Persons receiving copies thereof) at the following addresses (or to such other address as a party
may have specified by notice given to the other party pursuant to this provision):
If to Vendor, to:
HMS Holdings Corp.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Holster, Chief Executive Officer
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Holster, Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X Xxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to Customer, to:
Accordis Holding Corp.
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx III, Chief Executive Officer
Facsimile: (000)Β 000-0000
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx III, Chief Executive Officer
Facsimile: (000)Β 000-0000
With a copy to:
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Β Β Β Β Β Β Β Β Β Β 23.03 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which taken together
shall constitute one single agreement between the Parties.
Β Β Β Β Β Β Β Β Β Β 23.04 Relationship. The Parties intend to create an independent contractor relationship
and nothing contained in this Agreement shall be construed to make either Customer or Vendor
partners, joint venturers, principals, agents or employees of the other. No officer, director,
employee, agent, Affiliate or contractor retained by Vendor to perform work on Customerβs behalf
24
Β
under this Agreement shall be deemed to be an employee, agent or contractor of Customer. Neither
Party shall have any right, power or authority, express or implied, to bind the other.
Β Β Β Β Β Β Β Β Β Β 23.05 Consents, Approvals and Requests. Except as specifically set forth in this
Agreement, all consents and approvals to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable requests under this
Agreement.
Β Β Β Β Β Β Β Β Β Β 23.06 Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to Law, then the remaining provisions of this Agreement, if capable of
substantial performance, shall remain in full force and effect.
Β Β Β Β Β Β Β Β Β Β 23.07 Waivers. No delay or omission by either Party to exercise any right or power it
has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver
by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding
breach or any other covenant. All waivers must be signed by the Party waiving its rights.
Β Β Β Β Β Β Β Β Β Β 23.08 Remedies Cumulative. No right or remedy herein conferred upon or reserved to
either Party is intended to be exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy under this Agreement, or
under applicable law, whether now or hereafter existing.
Β Β Β Β Β Β Β Β Β Β 23.09 Entire Agreement. This Agreement and the Exhibits to this Agreement represent the
entire agreement between the Parties with respect to its subject matter, and there are no other
representations, understandings or agreements between the Parties relative to such subject matter.
Β Β Β Β Β Β Β Β Β Β 23.10 Amendments. No amendment to, or change, waiver or discharge of, any
provision of this Agreement shall be valid unless in writing and signed by an authorized
representative of each of the Parties.
Β Β Β Β Β Β Β Β Β Β 23.11 Survival. The terms of Articles 11, 12, 14, 15, 16, 19, 20, 21, 22 and 23
shall survive the expiration or termination of this Agreement.
Β Β Β Β Β Β Β Β Β Β 23.12 Third Party Beneficiaries. Each Party agrees that this Agreement shall not
benefit, or create any right or cause of action in or on behalf of, any person or entity other than
the Vendor and the Customer. Customer shall be entitled to enforce this Agreement on behalf of
Customer and shall have the right to pursue any right or remedy of the Customer arising hereunder
with respect to the delivery of Services or otherwise.
Β Β Β Β Β Β Β Β Β Β 23.13 Governing Law. This Agreement and the rights and obligations of the Parties
under this Agreement shall be governed by and construed in accordance with the Laws of New York,
without giving effect to the principles thereof relating to the conflicts of Laws.
Β Β Β Β Β Β Β Β Β Β 23.14 Sole and Exclusive Venue. Each Party irrevocably agrees that SectionΒ 8.6 of the
SPA shall be effective under this Agreement as if set forth in full herein.
Β Β Β Β Β Β Β Β Β Β 23.15 Waiver of Jury Trial. Each Party hereby waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect to any litigation directly
or indirectly arising out of, under or in connection with this Agreement, the transactions
contemplated by this Agreement or disputes relating hereto. Each Party (a)Β certifies that no
25
Β
representative, agent or attorney of any other Party has represented, expressly or otherwise, that
such other Party would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it and the other Party hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certifications in this Section.
Β Β Β Β Β Β Β Β Β Β 23.16 Covenant of Further Assurances. Customer and Vendor covenant and agree that,
subsequent to the execution and delivery of this Agreement and, without any additional
consideration, each of Customer and Vendor shall execute and deliver any further legal instruments
and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.
Β Β Β Β Β Β Β Β Β Β 23.17 Negotiated Terms. The Parties agree that the terms and conditions of this
Agreement are the result of negotiations between the Parties and that this Agreement shall not be
construed in favor of or against any Party by reason of the extent to which any Party or its
professional advisors participated in the preparation of this Agreement.
Β Β Β Β Β Β Β Β Β Β 23.18 Export. Customer and Vendor shall not knowingly export or re-export any personal
computer system, part, technical data or sub-elements under this Agreement, directly or indirectly,
to any destinations prohibited by the government of the U.S.A. The term βtechnical dataβ in this
context, means such data as is defined as technical data by applicable export regulations in effect
in the U.S.A.
Β Β Β Β Β Β Β Β Β Β 23.19 Conflict of Interest. Vendor shall not pay any salaries, commissions, fees or
make any payments or rebates to any employee of Customer, or to any designee of such employee, or
favor any employee of Customer, or any designee of such employee, with gifts or entertainment of
significant cost or value or with services or goods sold at less than full market value. Vendor
agrees that its obligation to Customer under this Section shall also be binding upon Vendor
Agents. Vendor further agrees to insert the provisions of this Section in each contract with a
Vendor Agent.
Β Β Β Β Β Β Β Β Β Β 23.20 Publicity. Each Party shall (1)Β submit to the other all advertising, written
sales promotions, press releases and other publicity matters relating to this Agreement in which
the other Partyβs name or any its trademarks or service marks is mentioned or which contains
language from which the connection of said name or trademark or service xxxx xxx be inferred or
implied and (2)Β not publish or use such advertising, sales promotions, press releases or publicity
matters without the other Partyβs consent.
26
Β
*Β Β Β Β Β *Β Β Β Β Β *Β Β Β Β Β *
Β Β Β Β Β Β Β Β Β Β IN WITNESS WHEREOF, each of Vendor and Customer has caused this Services Agreement to be
signed and delivered by its duly authorized representative.
Β | Β | Β | Β | Β |
Β | HMS BUSINESS SERVICES INC. Β |
Β | ||
Β | By:Β Β | /s/ HMS Business Services Inc.Β | Β | |
Β | Β | Name:Β Β | Β | Β |
Β | Β | Title:Β Β | Β | Β |
Β | ||||
Β | ACCORDIS HOLDING CORP. Β |
Β | ||
Β | By:Β Β | /s/ Accordis Holding Corp. | Β | |
Β | Β | Name:Β Β | Β | Β |
Β | Β | Title:Β Β | Β | Β |
Β |
27
Β
EXHIBIT 1
STATEMENT OF WORK
I. Machines
Β | a. | Β | Vendor shall provide an appropriate mainframe processor(s) that supports the service levels outlined in ExhibitΒ 5. |
Β | |||
Β | b. | Β | Vendor shall provide an appropriate level of DASD and Tape to support the Service Levels outlined in ExhibitΒ 5. |
Β | |||
Β | c. | Β | Customer shall be responsible for obtaining mainframe printing and mailing services consistent with support provided prior to the Effective Date. |
II. Software
Β | a. | Β | Vendor shall provide the Third Party Software set forth in ExhibitΒ 2. |
Β | |||
Β | b. | Β | Additional Third Party Software may be requested by Customer. Vendor will pass through cost to Customer for any additional Third Party Software specifically requested by Customer. Vendor will follow steps outlined in ArticleΒ 4 for Out-Of-Services Services to implement requested Third Party Software. |
Β | |||
Β | c. | Β | Vendor will maintain six (6)Β CICS AccessLine regions (Branch, West, Data, HSW, QA and Test). Vendor will follow steps outlined in ArticleΒ 4 for Out-Of-Scope Services to create new CICS regions. |
Β | |||
Β | d. | Β | Vendor will schedule and run Customerβs Standard Processing not less frequently than as being run prior to the Effective Date. |
Β | |||
Β | e. | Β | Any new systems, new development efforts, or processing outside AccessLine and Standard Processing that is not consistent with the support and Machine processing prior to the Effective Date will be considered Out-Of-Scope Services and will be handled as such under ArticleΒ 4, Out of Scope Services. |
III. Tape Management, Library Operations and Data Services
Tape and cartridges, storage and backups will be provided by Vendor as follows:
28
Β
Β | a. | Β | Copies of critical files (up to a maximum of 100) will be stored offsite at Iron Mountain located at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000. |
Β | |||
Β | b. | Β | Vendor has implementing a offsite backup solution utilizing a EMC Centera DASD backup machine. |
Β | |||
Β | c. | Β | Mainframe incremental and routine backup and reorganization of files will be performed in accordance with Customer current backup schedule, which consists of incremental backup and weekly full volume backup. Backup copies will be stored off-site. |
IV. Network Connectivity.
Β | a. | Β | Vendor shall maintain and manage the current Customer network connectivity in accordance with the network diagram attached to this ExhibitΒ 1 as AppendixΒ A. |
Β | |||
Β | b. | Β | Additional lines/connections will be handled as Out of Scope Services pursuant to ArticleΒ 4. |
V. System Support Services
Β | a. | Β | Vendor shall provide the following System Support Services: |
Β | β’ | Β | Monitoring of all Machines and Third Party Software on a daily basis for potential problems. |
Β | |||
Β | β’ | Β | Providing timely response to problems and questions reported by Customer. |
Β | |||
Β | β’ | Β | Performing ongoing capacity planning and performance monitoring activities. |
Β | |||
Β | β’ | Β | Making recommendations for short term and long term improved system performance. |
Β | |||
Β | β’ | Β | Trouble Shooting and implementing solutions to Third Party Software problems. |
Β | |||
Β | β’ | Β | Coordinating problem diagnosis and providing correction in the event application problems or Viruses occur, at Customerβs |
29
Β
Β | Β | Β | expense if such Virus was introduced into its systems, intentionally or not, by Vendor or any of its employees or subcontractors. |
Β | |||
Β | β’ | Β | Performing RACF security administration for TSO sign on and other administrations consistent with those performed prior to the Effective Date. |
Β | |||
Β | β’ | Β | Performing disaster recovery transition procedures set forth in ExhibitΒ 11. |
Β | |||
Β | β’ | Β | Performing system database administration function. |
VI. Operations Services
Β | a. | Β | Vendor shall perform the following Operations Services: |
Β | β’ | Β | Monitoring of systems consoles during operational hours. |
Β | |||
Β | β’ | Β | Performing checks to ensure Machines are operating optimally. |
Β | |||
Β | β’ | Β | Monitoring of all jobs and applications to ensure that they are running properly based upon supplied documentation. |
Β | |||
Β | β’ | Β | Responding to system messages and request for resources as required. |
Β | |||
Β | β’ | Β | Coordinating system startups and shutdowns with Customer Contract Managers. |
Β | |||
Β | β’ | Β | Documenting cause and nature of both scheduled and unscheduled outages. |
Β | |||
Β | β’ | Β | Maintaining the Customer tape inventory stored at the Vendor Service Location and offsite at Iron Mountain. |
Β | |||
Β | β’ | Β | Reporting Machines malfunctions to responsible parties. |
Β | |||
Β | β’ | Β | Responding to system requests for tape/cartridge mounts. |
Β | |||
Β | β’ | Β | Providing timely process on business requested and weekly backups. |
Β | |||
Β | β’ | Β | Performing job scheduling. |
Β | |||
Β | β’ | Β | Providing data center operations support availability 24 hours a day seven days a week on mainframe/communications availability and related software issues. |
VII. Reporting
Β | a. | Β | In addition to providing the Reports listed in ExhibitΒ 8, Vendor shall perform the following reporting services: |
30
Β
Β | β’ | Β | Documenting cause and nature of both scheduled and unscheduled outages. |
Β | |||
Β | β’ | Β | Provide job accounting reporting. |
VIII. Lotus Notes Technical Change Control Procedures
Β | a. | Β | Vendor shall manage any change to the technical configuration through the Lotus Notes Technical Change Control Procedures set forth in the Mainframe Change Control Database provided to Vendor with instructions about the database and using the database. If such change constitutes a Change, Vendor shall also manage such Change through the Change Control Process set forth in ExhibitΒ 10. |
IX. Source Data Management
Vendor will be responsible for data logging and tracking using SDM DB for Customer
physical data input, in a manner consistent with that performed prior to the
Effective Date.
X. EDI
Customer is responsible for establishing all EDI set ups, as they pertain to Customerβs business, with any Vendor assistance to be treated and charged as an
Out of Scope Service under ArticleΒ 4.
Vendor is responsible for maintenance, execution, logging and tracking of EDI transmissions performed by Vendor.
Customer is responsible for all EDI application programming, as it pertains to Customerβs business.
Vendor is responsible for maintenance, execution, logging and tracking of EDI transmissions performed by Vendor.
Customer is responsible for all EDI application programming, as it pertains to Customerβs business.
XI. Help Desk
Vendor will supply backup security administration for user systems and a user help
desk for reporting system problems.
All calls will be tracked and responded to in a manner consistent with the support provided prior to the Effective Date.
Vendor will reset RACF security passwords promptly upon request and in any event within 24 hours of any request.
All calls will be tracked and responded to in a manner consistent with the support provided prior to the Effective Date.
Vendor will reset RACF security passwords promptly upon request and in any event within 24 hours of any request.
XII. DSS Support Services
Β | a. | Β | Vendor is responsible for the managing and maintaining the servers listed in the network diagram attached to ExhibitΒ 1 as AppendixΒ A, and for replacing the servers if and as required to perform the Services. |
Β | |||
Β | b. | Β | Customer is responsible for all costs for PCs and Network printers in Customer Service Locations. |
31
Β
Β | c. | Β | Vendor will provide network monitoring and configuration support consistent with the support provided prior to the Effective Date. |
Β | |||
Β | d. | Β | Vendor will approve all new equipment (PCs and network printers) before being added to the network (approval is not to be unreasonably withheld or delayed). |
Β | |||
Β | e. | Β | Vendor will help supervise Customer onsite network administrators for data functionality. |
Β | |||
Β | f. | Β | Vendor will maintain firewall, FTP services and Internet Services. |
Β | |||
Β | g. | Β | Vendor will maintain Anti virus and PC operating service patches and push updates to network PCs. |
Β | |||
Β | h. | Β | Vendor will maintain the server hardware and software for Lotus Notes email, Databases and iNotes. |
Β | |||
Β | i. | Β | Vendor is responsible for managing print services consistent with the support provided prior to the Effective Date. |
Β | |||
Β | j. | Β | Vendor will provide network access to the current release of CCS-MTU billing software for use on behalf of existing Accordis CCS-MTU customers. |
XIII. Telephone
Β | a. | Β | Vendor will manage the existing telephone systems for Customer at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX, 00000. |
Β | |||
Β | b. | Β | Vendor will interact with communications equipment suppliers and telephone companies to resolve problems related to the specific circuits and network components provided by the Vendor. |
Β | |||
Β | c. | Β | Customer is responsible for maintaining a services agreement for Customer Service Location telephone switches, except at 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX, 00000, which is the responsibility of Vendor. |
XIV. Communications
Customer is responsible for all data line costs for each line (broadwing frame
relay, new edge frame relay over DSL and broadwing IP VPN) indicated on the
attached network diagram attached to this ExhibitΒ 1 as AppendixΒ A. Vendor will
maintain the contract with third parties for the data lines and will include
Customer only data line costs on monthly invoices.
Vendor will maintain and manage the existing video conferencing equipment consistent with the support provided prior to the Effective Date. Customer is responsible for any additional equipment needed for any new Customer Service Location.
Vendor will maintain and manage all communications and data lines used in providing the Services. Customer will maintain and manage PC and local printer data lines within the Customer Service Locations.
Vendor will maintain and manage the existing video conferencing equipment consistent with the support provided prior to the Effective Date. Customer is responsible for any additional equipment needed for any new Customer Service Location.
Vendor will maintain and manage all communications and data lines used in providing the Services. Customer will maintain and manage PC and local printer data lines within the Customer Service Locations.
32
Β
XV. Service Levels
Vendor will supply 100 hours per month of Customer specific DSS Support Services
(XII), Telephone (XIII)Β and Communications (XIV)Β as part of the Designated Fees.
Support on the shared servers in New York as listed on the network diagram attached
to this AppendixΒ A will not be included in the 100 hours. Additional support will
be charged via the schedule in ExhibitΒ 7, Hourly Rate Schedule. Travel
costs associated with Customer specific services are not included in Designated
Fees and will be charged back to Customer according to Vendorβs travel and expense
policy.
XVI. Holidays
Vendor will be responsible for providing the Services each day of the year except
Federal Holidays, Thanksgiving and Christmas days, provided, however, that upon 48
hoursβ advance notice to Vendor, Customer may require Vendor to provide Services on
those holidays and Customer shall pay Vendorβs out-of-pocket expenses for the
provision of such Services.
33
Β
![(DIAGRAM)](https://www.sec.gov/Archives/edgar/data/1196501/000095013309000690/w73129w7312901.gif)
34
Β
EXHIBIT 2
THIRD PARTY SOFTWARE
I. Third Party Software Other Than IBM Products
Β | Β | Β | Β | Β |
PRODUCT | Β | VENDOR | Β | Β |
NAME | Β | NAME | Β | Description |
Beta/88
|
Β | Beta Systems, Inc. | Β | RACF Security Mgt. |
CA-Deliver
|
Β | Computer Associates | Β | View Report Distribution |
CA-ISM (Xxxxx)
|
Β | Computer Associates | Β | VSAM Export/Restore |
Β |
Β | Β | Β | Β |
CA-View
|
Β | Computer Associates | Β | Report Repository |
CA-Vision/Sixty
|
Β | Computer Associates | Β | 4 GL Language Generator |
CA-Vision:Doc
|
Β | Computer Associates | Β | 4 GL Language Generator |
CA-Vision:Results
|
Β | Computer Associates | Β | 4 GL Language Generator |
Β |
Β | Β | Β | Β |
Endeavor
|
Β | Computer Associates | Β | Program Management |
Code-1 Plus
|
Β | Group One Software Inc. | Β | ZIP Code + |
Code-1 Plus subscript
|
Β | Group One Software Inc. | Β | ZIP Code + |
Decision Analyzer
|
Β | Decision Technology | Β | Data Analytical Rpt. Tool |
Direct Connect
|
Β | Sterling Commerce | Β | Network Data Mover |
Β |
Β | Β | Β | Β |
File-Aid/MVS/DB2
|
Β | Compuware | Β | File Management |
Gentran
|
Β | Sterling Commerce | Β | Ansi Data Converter |
Host on Demand
|
Β | IBM Software | Β | Product Number: E1BGELL |
In-tune
|
Β | Xxxxx & Xxxxxxx | Β | Performance/Tuning Analyzer |
Jobscan
|
Β | Diversified Software Sys | Β | JCL Validation |
MVS-Plus (Pkzip)
|
Β | Ascent Solutions Inc. | Β | Data Compression |
35
Β
Β | Β | Β | Β | Β |
PRODUCT | Β | VENDOR | Β | Β |
NAME | Β | NAME | Β | Description |
MXG Software
|
Β | Xxxxxxx Consultants | Β | Performance Reporting & Analysis |
OCE Editor
|
Β | American Medical Association | Β | Outpatient Code Editor |
Quickref
|
Β | Chicago Soft | Β | Interactive Systems Documentation |
QuickTape
|
Β | Texas Digital | Β | Tape Mgt. Mounting Facil. |
TableBase
|
Β | Data Kinetics | Β | Data Utility |
Tmon/CICS
|
Β | Landmark Systems | Β | CICS Performance Monitor |
Tubes/MVS
|
Β | Macro 4 | Β | 3270 Session Manager |
VPS
|
Β | Levi, Ray, Xxxxxx | Β | Network Printing |
Xpeditor/CICS
|
Β | Compuware | Β | CICS Code |
Xxxx
|
Β | Software Corp of Amer | Β | Tape consolidation |
II. Vendor Provided IBM Products
Β Β Β Β Β The following table outlines the IBM program products to be supplied by the Vendor.
Β | Β | Β |
Product Number | Β | IBM Program Product |
5694 A01
|
Β | Z/OS V1 Base |
5694 A01
|
Β | Z/OS V1 DFSMS DSS+HSM |
5694 A01
|
Β | Z/OS V1 DFSORT |
5694 A01
|
Β | Z/OS V1 HLA Toolkit |
Β |
Β | Β |
5694 A01
|
Β | Z/OS V1 RMF |
5694 A01
|
Β | Z/OS V1 SDSF |
5694 A01
|
Β | Z/OS V1 Security Server |
5655 G53
|
Β | COBOL Full Function |
5648063
|
Β | 3746 Model 900 Feat |
5648063
|
Β | ACF/NCP V7 |
5655041
|
Β | ACF/SSP Version 4 MVS |
5655103
|
Β | DITTO/ESA for MVS |
5655 M15
|
Β | CICS TS for Z/OS |
36
Β
Β | Β | Β |
Product Number | Β | IBM Program Product |
5625 DB2
|
Β | DB2 UDB for Z/OS |
5625 DB2
|
Β | QMF Classic |
5697 ENV
|
Β | Tivoli NetView Enterprise |
5698 S51
|
Β | Tivoli Workload Scheduler |
37
Β
EXHIBIT 3
SERVICE LOCATIONS
A.Β | Vendor Service Location: |
Β | 1. | Β | 000 Xxxx Xxxxxx Xxxxx, Xxxxxx 0-00, Xxx Xxxx, Xxx Xxxx 00000 |
B.Β | Customer Service Locations: |
Β | 1. | Β | 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 |
Β | |||
Β | 2. | Β | 000 Xx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 |
Β | |||
Β | 3. | Β | 0000 Xxxx Xxxxxxx Xxxx Xxxx, Xxxx. X, Xxxxxxx, XX 00000 |
Β | |||
Β | 4. | Β | 0000 Xxxxxxx Xxxx, Xxx Xxxxxxx. XX 00000 |
Β | |||
Β | 5. | Β | 0000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 |
Β | |||
Β | 6. | Β | 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 |
38
Β
EXHIBIT 4
DESIGNATED FEES
DESIGNATED FEES The Designated Fees for the Designated Services are $166,666 per month during first
Contract Year. The Designated Fees for the Designated Services are $183,333 per month during
Contract Years 2 through 4.
a. | Β | If the number of active AccessLine Accounts exceeds the Total In Scope AccessLine Accounts in a month, the following calculation will be used to calculate the additional AccessLine monthly charges to Customer: |
Β | i. | Β | AccessLine Accounts Percentage Over is calculated as follows: |
Β | 1. | Β | (number of active AccessLine Accounts / Total In Scope AccessLine Accounts) β 100%. |
Β | ii. | Β | AccessLine additional monthly charge is calculated as follows: |
Β | 1. | Β | 90% of the monthly Designated Fee multiplied by AccessLine Account Percentage Over. |
b. | Β | If the number of RCR Clients exceed the Total In Scope RCR Clients in a month, the following calculation will be used to calculate the additional RCR monthly charges to Customer: |
Β | i. | Β | RCR Clients Percentage Over is calculated as follows: |
Β | 1. | Β | (number of RCR Clients / Total In Scope RCR Clients) β 100%. |
Β | ii. | Β | RCR additional monthly charge is calculated as follows: |
Β | 1. | Β | 10% of the monthly Designated Fee multiplied by RCR Client Percentage Over. |
39
Β
EXHIBIT 5
SERVICE LEVELS AND PERFORMANCE CREDITS
1. | Β | GENERAL PROVISIONS. |
Β | 1.1. | Β | General. |
The
Service Levels referenced in Article 6 of the Agreement are set forth in this Exhibit.
Β | 1.2. | Β | Definitions. |
Capitalized terms used in this Exhibit that are not defined in this Exhibit shall have the meanings
assigned to them in the Agreement. The following defined terms used in this Exhibit shall have the
meanings specified below:
βPerformance Creditβ shall mean a credit in an amount set forth in SectionΒ 5
below payable to Customer by Vendor in connection with a Service Level Failure.
βService Levelsβ shall have the meaning set forth in this Exhibit.
βService Level Failureβ shall mean Vendorβs failure to achieve a Service Level in
any given month.
2. | Β | PERFORMANCE TRACKING AND REPORTING. |
Β | A. | Β | General: Vendor shall provide Customer with a report of the performance level attainment against the Service Levels as set forth in ExhibitΒ 8 no later than the 25th day of each month. Vendor will be responsible for promptly investigating and correcting Vendorβs failure to meet established Service Levels in accordance with SectionΒ 6.04 of the Agreement. If the Root Cause Analysis shows that Customer was the Root Cause of the Service Level Failure, or the cause was outside control of Vendor, then Vendor shall not be subject to a Performance Credit. |
3. | Β | SERVICE LEVEL REVIEWS. |
The Parties will review the Service Levels in accordance with this SectionΒ 6.03 of the
Agreement. As part for their monthly meetings, the Vendor Contract Manager and the Customer
Contract Manager shall discuss the Service Levels. Any additions, deletions or modifications to the
Service Levels may be made by mutual agreement of the Contract Managers at such monthly meetings.
40
Β
4. | Β | PERFORMANCE CREDITS. |
In the event of a Service Level Failure, Vendor shall incur the Performance Credit associated with
the Service Level that Vendor failed to achieve. If more than one Service Level Failure has
occurred in a single month, the sum of the corresponding Performance Credits shall be paid to
Customer; provided, however that, notwithstanding the amount of Performance Credits incurred by
Vendor, in no event shall the total amount of Performance Credits incurred by Vendor in a single
month exceed $25,000. All Performance Credits incurred by Vendor in a given month shall be
Customerβs sole remedy for Service Level Failures and shall be credited to Customer on the next
monthly invoice.
5. | Β | SERVICE LEVELS |
Initial Service Levels are set forth below.
Β | A. | Β | RESOURCE AVAILABILITY-is defined as Machines at the Vendor Service Location and Third Party Software (βResourcesβ) available to Customer from local and remote Customer sites 24 hours a day, seven days a week including all national and corporate holiday schedules, except for periods of scheduled maintenance authorized by Customer (βResource Availabilityβ). |
Β | Β | Β | Β | Β |
Category | Β | Description | Β | SLA Calculation |
Β |
Β | Β | Β | Β |
Resource Availability* |
Β | Hardware (CPU & DASD) | Β | If either the CPU or DASD is down on any given day and not operational for a period Greater than 4 hours Vendor shall incur a Performance Credit. |
Β |
Β | Β | Β | Β |
Β
|
Β | System Software (CICS) | Β | If all CICS is down on any given day and not operational for a period Greater than 4 hours Vendor shall incur a Performance Credit. |
Β |
Β | Β | Β | Β |
Β
|
Β | Third Party Software (see ExhibitΒ 2) | Β | If any of the Third Party Software program products are down on any given day and not operational for a period Greater than 4 hours Vendor shall incur a Performance Credit. |
Β | (i) | Β | Performance Credit for Critical Resources. Vendor shall incur the following Performance Credits for each day that any or all the Resources are not available for 4 hours or more on such day during a given month: |
41
Β
Β | Β | Β | Β | Β |
Β
|
Β | Problem extends: | Β | 4.1 hours to 8 hours β $2,000 |
Β
|
Β | Β | Β | 8.1 hours to 16 hours β $4,000 |
Β
|
Β | Β | Β | 16.1 hours to 24 hours β $6,000 |
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β *Β Periodically system maintenance is performed, requiring an IPL (Initial Program Load which
is required to install new and upgraded releases of software and hardware) of the Machine. This
scheduled down time is excluded from the Resource Availability. This maintenance is scheduled in
advance with proper notice provided to Customer, and is typically performed on Sundays.
Β | B. | Β | TRANSACTION RESPONSE TIME-is defined as the actual wall clock time from the instant the user initiates a request depressing the enter key until the information has been fully displayed on the user screen and the system has unlocked the keyboard. CICS Monitor and RMF software will be used to track and calculate total transactions and response time calculations. |
Β | (i) | Β | Online Performance Windows for each CICS region shall be available: |
Β | Β | Β | Β | Β |
Β
|
Β | A.Β Β Β Branch and Data |
Β | Β |
Β
|
Β | β’Β Β Β Monday through Friday |
Β | 8:00 am-10:00 pm (EST) |
Β
|
Β | β’Β Β Β Saturday |
Β | 8:00 am-4:00 pm (EST) |
Β
|
Β | β’Β Β Β Sunday |
Β | Upon request |
Β |
Β | Β | Β | Β |
Β
|
Β | X.Β Β Β Xxxx* |
Β | Β |
Β
|
Β | β’Β Β Β Monday through Friday |
Β | 12:00 am-6:00 pm (EST) |
Β
|
Β | β’Β Β Β Saturday |
Β | 12:00 am-6:00 pm (EST) |
Β
|
Β | β’Β Β Β Sunday |
Β | Upon request |
Β |
Β | Β | Β | Β |
Β
|
Β | C.Β Β Β HSW |
Β | Β |
Β
|
Β | β’Β Β Β Monday through Friday |
Β | 10:00 am-11:00 pm (EST) |
Β
|
Β | β’Β Β Β Saturday |
Β | 10:00 am-3:00 pm (EST) |
Β
|
Β | β’Β Β Β Sunday |
Β | Upon request |
Β |
Β | Β | Β | Β |
Β
|
Β | D.Β Β Β QA and Test |
Β | Β |
Β
|
Β | β’Β Β Β Monday through Friday |
Β | 8:00 am-6:00 pm (EST) |
Β
|
Β | β’Β Β Β Saturday |
Β | 8:00 am-6:00 pm (EST) |
42
Β
Β | Β | Β | Β | Β |
Β
|
Β | β’Β Β Β Sunday |
Β | Upon request |
Β
* Β Β Β If End Of Month (EOM)Β processing is performed the next business day the region up time is not
guaranteed.
** Β if EOM processing or LAC loads run (typically second week of the month), the region up time is
not guaranteed.
Β | (ii) | Β | Performance Credit: Vendor shall incur a Performance Credit of $100 per day, per CICS region that Vendor fails to meet the region availability. |
Β | (a) | Β | Network Response Time Performance Standard: |
Β | (1) | Β | 95% of total transactions (Branch, West, Data, HSW) to be completed within 1.0-3.0 seconds |
Β | |||
Β | (2) | Β | 90% of total transactions (QA and Test) to be completed within 1.0-3.0 seconds |
Β | (b) | Β | Performance Credit: Vendor shall incur a Performance Credit of $2,000, per region in which the applicable standard is not met, if Vendor fails to meet, in the aggregate, the applicable Network Response Time Performance Standard in a given month. |
Β | (iii) | Β | Online Performance Window for TSO transactions |
Β | (a) | Β | TSO Response Time Standard: |
Β | (1) | Β | 85% of all TSO transactions need to be completed within 3.0 seconds |
Β | (b) | Β | Performance Credit: Vendor shall incur a Performance Credit of $2,000 for any month in which Vendor fails to meet, in the aggregate, the TSO Response Time Standard for TSO transactions in such month. |
Β | C. | Β | BATCH WINDOW STANDARDS |
(i) | Β | The following batch class initiators must be available to Customer starting at 8:00 am (EST)Β and ending at 7:00 pm (EST): |
Β | Β | Β | Β | Β |
CLASS | Β | ELAPSED TIME | Β | CPU TIME |
Β |
Β | Β | Β | Β |
A
|
Β | 15 minutes | Β | 1 minute |
43
Β
Β | Β | Β | Β | Β |
CLASS | Β | ELAPSED TIME | Β | CPU TIME |
Β | ||||
B
|
Β | 1 Hour | Β | 10 minutes |
Β | ||||
C
|
Β | 48 Hours | Β | unlimited |
Β | ||||
S
|
Β | On Demand | Β | unlimited |
(ii)Β Β Performance Credit: Vendor shall incur a Performance Credit of $100 per class, per
day that the required batch class services are not available to the Customer.
44
Β
EXHIBIT 6
IN SCOPE MAXIMUMS
A. | Β | Total In Scope AccessLine Accounts in the Active Master File |
Β | Β | Β |
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Contract Year 1:
|
Β | 15,730,000 |
Β | ||
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Contract Year 2-4:
|
Β | 17,303,000 |
B. | Β | Total In Scope RCR Clients |
Β | Β | Β |
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Contract Year 1:
|
Β | 16 |
Β | ||
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Contract Year 2-4:
|
Β | 17 |
45
Β
EXHIBIT 7
HOURLY RATE SCHEDULE
1. Out-Of-Scope Services will use the follow hourly rates:
Β Β Β Β Β a. Contract Year 1 β$151/hour
Β Β Β Β Β b. Contract Year 2-4 β $166/hour
Β Β Β Β Β b. Contract Year 2-4 β $166/hour
46
Β
EXHIBIT 8
REPORTS
I. | Β | Monthly Reports |
Β | ||
A. | Β | Vendor shall provide the following monthly reports to Customer by the 15th day of each month. |
Β | 1. | Β | Overall TSO response time by period in the form attached to this ExhibitΒ 8 as Appendix A. |
Β | |||
Β | 2. | Β | CICS/ESA monitor for all CICS regions β (WEST, EAST, Data Entry, LAC) in the form attached to this ExhibitΒ 8 as AppendixΒ A. |
Β | |||
Β | 3. | Β | A consolidated report, including status updates, with respect to each Change Request. |
Β | |||
Β | 4. | Β | Consolidated Service Level report, including a list of any Service Level Failures and Performance Credits incurred during such month. |
II. | Β | Daily Reports |
Β | ||
A. | Β | Vendor shall provide the CICS regions start time and all hardware and Third Party Software problems within the Vendor Service Location for the DPO Morning Report each day by 8:00 am (EST)Β via email to the Customer Contract Manager and all other Customer employees designated by the Customer Contract Manager. |
Β | ||
III. | Β | Other Reports |
Β | ||
A. | Β | Vendor shall provide the following reports as required: |
Β | 1. | Β | Root Cause Analysis Report within 30Β days of a Service Level failure |
IV. | Β | Review of Reports |
As part of their monthly meeting, the Contract Managers shall review and discuss all reports
produced during such month.
47
Β
AppendixΒ A
Form of Reports
TSO Response Time
Β | Β | Β | Β | Β |
Β
|
Β | OVERALL TSO RESPONSE TIME BY PERIOD - SLA | Β | 11:42 FRIDAY, JANUARY 14 , 2005 Β Β Β Β Β 76 |
Β
|
Β | REPORT DATE AND TIME: FRI, JAN 14, 2005 11:49 | Β | Β |
Β
|
Β | FROM 09 JAN 05 < - - - - - - > 11 JAN 05 | Β | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β | Β | AVERAGE | Β | Β | ENDED | Β | Β | PERCENT | Β | Β | CPU TCB | Β | Β | IO | Β | Β | MEMORY | Β | ||||||
Β Β Β SYSTEM | Β | Β | Β | Β | Β | RESPONSE | Β | Β | TRANSACTION | Β | Β | ENDED | Β | Β | SERVICE | Β | Β | SERVICE | Β | Β | SERVICE | Β | ||||||
Β Β Β Β Β Β Β Β IO | Β | PERIOD | Β | Β | TIME | Β | Β | COUNT | Β | Β | TRANSACTION | Β | Β | UNITS | Β | Β | UNITS | Β | Β | UNITS | Β | |||||||
MVS2 |
Β | 1-QUICK < 1 SEC | Β | Β | 0.29 | Β | Β | Β | 129550 | Β | Β | Β | 100.00 | Β | Β | Β | 112,950,163 | Β | Β | Β | 13,896,257 | Β | Β | Β | 903,551,466 | Β | ||
Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | |||||
Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | 129550 | Β | Β | Β | 100.00 | Β | Β | Β | 112,950,163 | Β | Β | Β | 13,896,257 | Β | Β | Β | 903,551,466 | Β |
CICS Response Time
Β | Β | Β | Β | Β |
DATE: 1/11/05
|
Β | The CICS/ESA | Β | PAGE 4 |
TIME: 00:27:12
|
Β | SYSTEM TOTAL PAGE FOR WEST ON 01/10/05 | Β | Β |
Β | DATA IS FROM 01/10/05 AT 11:37 TO 01/10/05 AT 23:59 | Β | Β |
CICS SYSTEM ACTIVITY
RESPONSE TIME DISTRIBUTION
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
RESPONSE | Β | TXNS | Β | Β | PCT | Β | Β | CUM % | Β | Β | 0 | Β | Β | 1 | Β | Β | 2 | Β | Β | 3 | Β | Β | 4 | Β | Β | 5 | Β | Β | 6 | Β | Β | 7 | Β | Β | 8 | Β | Β | 9 | Β | Β | 0 | Β | ||||||||||||||
0.0-1.0 SEC |
Β | Β | 104,819 | Β | Β | Β | 98.3 | % | Β | Β | 98.3 | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % | Β | Β | % | % |
1.0-2.0 SEC |
Β | Β | 1,049 | Β | Β | Β | .9 | % | Β | Β | 99.3 | % | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
2.0-3.0 SEC |
Β | Β | 329 | Β | Β | Β | .3 | % | Β | Β | 99.6 | % | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
3.0-4.0 SEC |
Β | Β | 134 | Β | Β | Β | .1 | % | Β | Β | 99.8 | % | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
4.0-5.0 SEC |
Β | Β | 80 | Β | Β | Β | .0 | % | Β | Β | 99.8 | % | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
5.0*** SEC |
Β | 131 | Β | Β | Β | .1 | % | Β | Β | 100.0 | % | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
Β | Β | Β | Β | Β |
TOTAL TRANSACTIONS EXECUTED |
Β | Β | 106.845 | Β |
TRANSACTIONS EXCLUDED FROM HIGH TASK |
Β | Β | 3 | Β |
ENDED TRANSACTIONS |
Β | Β | 106.542 | Β |
CICS SYSTEM AVAILABILITY
Β | Β | Β | Β | Β |
SYSTEM AVAILABILITY PERCENTAGE |
Β | Β | 39.7 | % |
Β |
Β | Β | Β | Β |
FROM TIME |
Β | Β | 00:00:00 | Β |
TO TIME |
Β | Β | 24:00:00 | Β |
SYSTEM OUTAGE |
Β | Β | 14:27:21 | Β |
Β | Β | Β | Β | Β |
START
TIME |
Β | END TIME | Β | DURATION |
11:35:00 |
Β | 21:07:39 | Β | 09:32:38 |
HIGH WATER XXXX INFORMATION
Β | Β | Β | Β | Β | Β | Β |
CATEGORY | Β | TIME | Β | Β | TRANID | |
FILE WAIT |
Β | Β | 53.8298 | Β | Β | T24O |
Β | Β | Β | Β | Β | Β | Β |
CATEGORY | Β | POOL SIZE | Β | Β | TRANID | |
USER24 |
Β | Β | 8K | Β | Β | OC |
USER31 |
Β | Β | 257K | Β | Β | T24O |
USER24 |
Β | Β | 1K | Β | Β | CESN |
USER31 |
Β | Β | 23K | Β | Β | CENT |
Β | Β | Β | Β | Β | Β | Β | Β | Β |
CPU ANALYSIS | Β | CPU TIME | Β | Β | TOTAL DISPATCH | Β | ||
TOTAL ADDRESS SPACE CPU |
Β | Β | 43:29.5054 | Β | Β | Β | Β | Β |
TCB |
Β | Β | 41:10.2619 | Β | Β | Β | Β | Β |
SRB |
Β | Β | 2:19.2434 | Β | Β | Β | Β | Β |
Β |
Β | Β | Β | Β | Β | Β | Β | Β |
SUBTASK CPU |
Β | Β | 6:26.4391 | Β | Β | Β | Β | Β |
DBCTL CONTROL TASK CPU |
Β | Β | .0000 | Β | Β | Β | Β | Β |
DBCTL THREAD |
Β | Β | .0000 | Β | Β | Β | Β | Β |
TMON SUBTASK |
Β | Β | .0000 | Β | Β | Β | Β | Β |
OTHER SUBTASKS |
Β | Β | 6:26.4391 | Β | Β | Β | Β | Β |
Β |
Β | Β | Β | Β | Β | Β | Β | Β |
APPLICATION TASKS CPU/DISP |
Β | Β | 34:43:8228 | Β | Β | Β | 1:30:06.0693 | Β |
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
I/O ACTIVITY | Β | COUNT | Β | Β | AVG TIME | Β | Β | TOTAL TIME | Β | |||
FILE REQUESTS |
Β | Β | 3,583,109 | Β | Β | Β | .0028 | Β | Β | Β | 2:51:43.6551 | Β |
PROGRAM LOADS |
Β | Β | 285,635 | Β | Β | Β | .0001 | Β | Β | Β | 34.2785 | Β |
JOURNAL REQUESTS |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
TD REQUESTS |
Β | Β | 7 | Β | Β | Β | .0031 | Β | Β | Β | .0221 | Β |
XX/X XXXXX |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
XX/X WAITS |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
SOL CALLS TO DB2 |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
NON-SOL CALLS TO DB2 |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
USER DATA BASE CALLS |
Β | Β | 0 | Β | Β | Β | .0000 | Β | Β | Β | .0000 | Β |
DB2 WAIT W/O THREAD |
Β | Β | 0 | Β | Β | * NA * | Β | * NA * | ||||
DB2 PLAN OVERFLOW |
Β | Β | 0 | Β | Β | * NA * | Β | * NA * |
STORAGE ANALYSIS
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β |
DSA NAME | Β | SIZE | Β | Β | IN USE | Β | Β | SOS | Β | Β | STG VIOLS | Β | ||||
CDSA |
Β | Β | 1,024K | Β | Β | Β | 1,015K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
ECDSA |
Β | Β | 5,192K | Β | Β | Β | 7,520K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
ERDSA |
Β | Β | 16,432K | Β | Β | Β | 17,916K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
ESDSA |
Β | Β | 1,024K | Β | Β | Β | 140K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
EUDSA |
Β | Β | 3,072K | Β | Β | Β | 1,216K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
RDSA |
Β | Β | 256K | Β | Β | Β | 232K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
SDSA |
Β | Β | 256K | Β | Β | Β | 16K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
UDSA |
Β | Β | 256K | Β | Β | Β | 16K | Β | Β | Β | 0 | Β | Β | Β | 0 | Β |
Β | Β | Β | Β | Β |
HIGHEST PAGING RATE PER SEC |
Β | Β | 1.273 | Β |
HIGHEST WORKING SET (PAGE FRAMES) |
Β | Β | 5.500 | Β |
HIGHEST OPSYS STORAGE XXXXX |
Β | Β | 0 | Β |
00
Β
XXXXXXX 0
XXXX XXXXXXXXXX
Β | Β | Β | Β | Β |
X
|
Β | At the Vendor Service Location(s), Vendor shall maintain restricted access to data center via existing security card access. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | At the Vendor Service Location(s), Vendor shall be responsible for all building support, including, power, air conditioning and prevention from water damage. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Vendor shall comply with existing RACF security policies and procedures consistent with the support provided prior to Effective Date. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Vendor shall use access granted by Customer to the Customer Service Locations to perform the Services as set forth in the Agreement (including the Exhibits). | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Vendor shall supply storage and security for customer tape, cartridge media and Vendor shall restrict access to such storage to only those Vendor employees or Vendor Agents requiring access. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Vendor shall ensure appropriate disposal of all Confidential Information including printed outputs DASD floppy disks tape and cartridge. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Customer may initiate, with Vendorβs cooperation, ad hoc security review audits to assess security risks to the Customer Data β no more frequent than quarterly. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Vendor shall issue security alerts and warnings to the Customer Contract Manager if Vendor becomes aware of any breach of (1)Β these data safeguard procedures, or (2) any other security policies and procedures in effect at the Vendor Service Location(s) or Customer Service Locations. | ||
Β |
Β | Β | Β | Β |
Γ
|
Β | Any and all additional safeguards as may be required in the Business Associate Agreement. |
49
Β
EXHIBIT 10
CHANGE CONTROL PROCEDURES
I. CHANGE REQUESTS
Either Party may request, orally or in writing, a Change to this Agreement. Upon either Partyβs
receipt of request for Change, the Parties shall work together to prepare a written change request
containing the general information set forth below and in
AppendixΒ A to this Exhibit regarding the
proposed Change (a βChange Requestβ).
II. ORIGINATING THE CHANGE REQUEST
Using the Change Request Form attached hereto as AppendixΒ A, the Party requesting the
Change shall provide a description of the proposed Change(s) and specify the reason for the Change.
Vendor shall assign a unique number to the Change Request, and the Parties shall complete the
Change Request by including the following information in the Change Request Form:
Β | 1. | Β | List the documents and solution components that will need to be updated when the Change in implemented |
Β | |||
Β | 2. | Β | Estimate the impact of the Change (minimal (8 hrs or less), moderate (9-40 hours) or major (over 40 hours)) |
Β | |||
Β | 3. | Β | Indicate whether a full evaluation of the Change impact is required and, if so, estimating the time needed for evaluation and assigning a resource to perform the evaluation. |
The Vendor shall then enter the Change Request into the Change Control Log.
All
completed Change Requests shall be forwarded to a Vendor designated evaluator for evaluation.
Vendor shall complete its evaluation of each Change Request within 30Β days of receipt of a complete
Change Request and forward such Change Request, with its recommendations, to the Contract Managers
for approval. Vendor shall log the status of the Change Request and keep Customer informed of the
status of each Change Request.
III. APPROVAL
Upon receipt of the Change Request and the recommendations of the Vendor evaluator, the Contract
Managers shall review the Change Request and shall, within 30Β days of receipt of such Change
Request, either approve or not approve such Change Request. No Change shall be made to any Services
or to this Agreement unless it has been approved by the Customer Contract Managers and the Vendor
Contract Manager.
IV. IMPLEMENTATION
Vendor shall manage the implementation of an approved Change Request. Vendor shall track progress
of the Change, apprise Customer Contract Managers of the status of the Change Request
50
Β
during implementation (not less than once a week), and make any adjustments in Services as needed.
V. CLOSURE
When Vendor successfully implements a Change Request, Vendor shall update the status of the Change
Request in the Change Control Log, archive the Change Request related documentation, notify
Customer of the implementation and close the Change Request.
VI. REPORTING
A consolidated report, including status updates with respect to each Change Request, shall be
included in a monthly report.
51
Β
APPENDIX A
Sample Change Request Form
Accordis Holding Corp.
Change Request Form
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | ||
Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Β | Requested | Β | |
Customer | Β | Β | Request | Β | Β | Phone | Β | Β | Request | Β | Β | Completion | Β | |||||
Contact | Β | Β | Number | Β | Β | Number | Β | Β | Date | Β | Β | Date | Β |
Change Description:
Reason for Change:
Specific Tasks:
Β | Β | Β |
Assigned to:
|
Β | Rate: |
Β | Β | Β |
Total Change Order: Hours: |
Β | Cost: $ |
Β | Β | Β |
Change Request Completion Date:
|
Β | Attachments: |
Β | Β | Β | Β | Β | Β | Β |
Customer Approval:
|
Β | Β | Β | Approval Date: | Β | Β |
Β
|
Β | Β | Β | Β | Β | Β |
Accordis Holding Corp. | Β | Β | Β | Β | ||
Β |
Β | Β | Β | Β | Β | Β |
Vendor Approval:
|
Β | Β | Β | Approval Date: | Β | Β |
Β
|
Β | Β | Β | Β | Β | Β |
HMS | Β | Β | Β | Β |
52
Β
EXHIBIT 11
DISASTER RECOVERY TRANSITION PROCEDURES
β’ | Β | Vendor shall notify the Customer Contract Manager of an existing, pending or potential event that would require Vendor to deploy its DRP and provide the Services by means of the Disaster Recovery Vendor. |
Β | ||
β’ | Β | Customer shall supply a list of Customer Service Locations for which back-up connectivity to the Disaster Recover Vendor would be necessary in the event a disaster is declared. Vendor will arrange for implementation, maintenance and management of the back-up data lines and Customer will be responsible for the installation and ongoing line costs for these back-up data lines, as described in ExhibitΒ I, SectionΒ IV. |
Β | ||
β’ | Β | Upon the occurrence of an event requiring Vendor to deploy its DRP and provide the Services by means of the Disaster Recovery Vendor, Vendor shall: |
Β | β’ | Β | notify telecommunication vendors to switch all network lines to the Disaster Recovery Vendor site; |
Β | |||
Β | β’ | Β | notify Iron Mountain to send all backup tapes to the Disaster Recovery Vendor; |
Β | |||
Β | β’ | Β | ensure that all necessary supplies and tapes are sent from the Vendor Service Location(s) to the Disaster Recovery Vendor; and |
β’ | Β | The Disaster Recovery Vendor is: |
Β | Β | Β |
Β
|
Β | SUNGARD RECOVERY SERVICES |
Β
|
Β | 000 Xxxxx Xxxxx Xxxxxx |
Β
|
Β | XxxxxΒ 000 |
Β
|
Β | Xxxxxxxxxxxx, XX 00000 |
Β
|
Β | Contract Number: 93068100-37050-44932 |
β’ | Β | The Iron Mountain facility used by the Vendor is located at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000. |
53
Β
Execution Version
EXHIBIT 12
BUSINESS ASSOCIATE AGREEMENT
[Attached separately]