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HomeMy WebLinkAboutPre-AttachmentEXHIBIT A — SCOPE OF SERVICES A. RECOVERY SERVICES. Each Schedule to this Agreement specifies a Subscriber location ("Location"), the recovery services to be provided by SunGard to Subscriber for that Location ("Recovery Services"), the fees to be paid by Subscriber to SunGard for those services, and any other applicable terms. Each Schedule may be signed by Subscriber or any of its subsidiaries or affiliates, and such signer shall be deemed to be "Subscriber" for purposes of that Schedule, provided that the original Subscriber named above shall be jointly and severally liable with such subsidiaries and affiliates for the performance of all obligations under such Schedule. Each Schedule represents a separate contract that incorporates and is governed by all of the terms of this Agreement. 1. DISASTER. A "Disaster" is any unplanned event or condition that renders Subscriber unable to use a Location for its intended computer processing and related purposes. By signing a Schedule or any Addendum to a Schedule, Subscriber warrants that the Location specified in that Schedule is not at that time experiencing a Disaster. Subscriber may declare a Disaster by having one of its designated representatives give notice to SunGard stating that a Disaster occurred, identifying the affected Location, and specifying which Recovery Services Subscriber believes will be required. SunGard will then follow Subscriber's reasonable declaration procedures as provided to SunGard in the Disaster Declaration Authority form. 2, SELECTED SERVICES. Whenever Subscriber declares a Disaster, the Recovery Services to be provided by SunGard to Subscriber shall be the following services which were selected by Subscriber in the applicable Schedule: (a) Center -Based Recovery Services. Immediate and exclusive use of the services described below ("Center - Based Recovery Services"), which Subscriber may use during the period of time stated below, provided at a SunGard facility: (1) Hotsite. An installed, fully operational computer system and networking capability ("Hotsite"), equal to or better than (in all material respects including equipment quality and processing capacity) the Hotsite Configuration described in the Schedule, which Subscriber may use for six weeks. (ii) Coldsite. Environmentally prepared computer space ("Coldsite"), properly equipped to facilitate the installation of a computer system comparable to the Hotsite Configuration, which Subscriber may use for six months. (iii) Office Space. An adequate and reasonable amount of office space in the same facility where the Hotsite or Coldsite is located, properly equipped to facilitate the installation of terminals, which Subscriber may use to operate that Hotsite or Coldsite. (iv) Work Group Space. An adequate and reasonable amount of office space, properly equipped to accommodate the Work Group Configuration described in the Schedule, which Subscriber may use for six weeks. (v) MegaVoice" SunGard's voice communications backup service for the number of communications ports stated in the Schedule, which Subscriber may use for six weeks. (b) Mobile Recovery Services. Immediate and exclusive use of the services described below ("Mobile Recovery Services"), which Subscriber may use for the duration of a Disaster:. (i) Replacement Recovery System. A fully operational, relocatable computer system and networking capability ("Replacement Recovery System"), equal to or better than (in all material respects including equipment quality and processing capacity) the Mobile Configuration described in the Schedule, to be provided to Subscriber by one of the following methods at Subscriber's option: a. Primary Recovery Facility. Access to the Replacement Recovery System at a SunGard facility where it is then installed. b. Alternate Recovery Facility. Delivery of the Replacement Recovery System to a SunGard facility where it may be accommodated, within 48 hours after SunGard receives the Disaster declaration notice. c. Mobile Data Center. Delivery of a properly equipped vehicle housing the Replacement Recovery System to a destination in the continental United States requested by Subscriber, within 48 hours after SunGard receives the Disaster declaration notice. d. Subscriber Facility. Delivery of the Replacement Recovery System to a properly equipped facility located in the continental United States requested by Subscriber, within 48 hours after SunGard receives the Disaster declaration notice. (ii) Computer Space. Environmentally prepared computer space ("Computer Space"), properly equipped to facilitate the installation of a computer system comparable to the Mobile Configuration, to be provided to Subscriber by one of the following methods at Subscriber's option: a. SunGard Facility. Access to the Computer Space at a SunGard facility where the Replacement Recovery System may be accommodated. b. Mobile Coldsite. Delivery of a properly equipped vehicle housing the Computer Space to a destination in the continental United States requested by Subscriber, within 48 hours after SunGard receives the Disaster declaration notice. (iii) Supplemental Office Space. An adequate and reasonable amount of office space in the same SunGard facility where the Replacement Recovery System or Computer Space is located, properly equipped to facilitate the installation of terminals, which Subscriber may use to operate that Replacement Recovery System or Computer Space. (iv) Mobile Work Group Space. SunGard will commence the delivery of a vehicle properly equipped to accommodate the Mobile Work Group Configuration described in the Schedule, to a destination in the continental United States requested by Subscriber, within 24 hours after SunGard receives the Disaster declaration notice. (v) Quick Ship Equipment. Delivery of equipment equal to or better than (in all material respects including equipment quality and processing capacity) the Quick Ship Equipment described in the Schedule, to a properly equipped facility in the continental United States requested by Subscriber, within 48 hours after SunGard receives the Disaster declaration notice. s, EXTENDED USE. During a Disaster, Subscriber may continue to use the Center -Based Recovery Services beyond the periods stated in Section A2(a), provided that this extended use shall be subject to immediate termination if and when any other subscriber declares a disaster. 4. COMPREHENSIVE RECOVERY SUPPORT. Whenever Subscriber uses Recovery Services during a Disaster, SunGard's Support Staff (consisting of operations, communications, security, transportation, systems software and customer support personnel, as appropriate) shall provide comprehensive support to Subscriber on a 24- hour-a-day, 7-day-a-week basis, as needed. To facilitate Subscriber's use of the Recovery Services during a Disaster, SunGard's Support Staff shall assist Subscriber in pre -testing Subscriber's operating systems, network control programs and communications circuits. During a Disaster, SunGard's Support Staff also shall assist Subscriber in contacting vendors and in obtaining and installing additional or replacement equipment. 5. TESTS. Promptly after execution of this Agreement, SunGard shall either notify Subscriber of available times to schedule a training workshop at a SunGard facility or provide instructions to Subscriber to conduct a computer based training workshop. Subscriber may use certain Recovery Services to test its disaster recovery capability ("Test") for the number of Test Periods stated in the applicable Schedule. Each Test Period entitles Subscriber to eight (8) hours of consecutive test time per contract year at a designated SunGard facility, on a non -cumulative basis. During each Test, SunGard's Support Staff shall provide reasonable supplies and support to Subscriber as needed, subject to availability. In order for SunGard to provide support to Subscriber for a scheduled Test, all Test plans must be provided to SunGard at least three (3) weeks prior to the Test date. Upon receipt of Subscriber's Test plan, SunGard will then assign a SunGard technical coordinator to review Subscriber's Test plan and act as project manager to coordinate Test support activities. Tests shall be scheduled at least four (4) months in advance and availability is on a 24-hour-a-day, 7-day-a-week basis. All Tests shall be subject to inunediate cancellation or termination, and shall be rescheduled as soon as possible, if and when any other subscriber declares a disaster and requests use of the Recovery Services being tested. e. E-TESTING SERVICES. Subscriber may, at its option, elect to participate in SunGard's Online Test Plan Submission system CT -Testing Program"). The Program allows Subscriber to complete and submit Test plans online for any scheduled Test. Subscriber shall use the Program only for its own internal purposes in testing its disaster recovery configuration with SunGard. Periodically, in its sole discretion, SunGard may change or discontinue the Program. SunGard shall not be liable for any damages incurred by Subscriber as a result of Subscriber's access to, use of, or downloading of any information or data contained in the web pages of the Program, including damages caused by any viruses. 7. SOFTWARE. All systems and utility software which SunGard has installed on the equipment used to provide the Recovery Services may be used by Subscriber during a Disaster or a Test. a. TECHNOLOGY EXCHANGE. Upon Subscriber's request, SunGard will provide a list of computer and communications equipment that is then currently available to enhance the Hotsite Configuration or Mobile Configuration. Subscriber may exchange certain components of its configuration for hardware representing newer technology, by giving written notice to SunGard and signing an appropriate Addendum to the applicable Schedule. Upon the effective date of this exchange, the Monthly or Annual Fees due under that Schedule may increase by an amount reasonably determined by SunGard, based upon the difference between (a) SunGard's then prevailing Monthly or Annual Fees for the new hardware selected, and (b) an allocated portion of the prior Monthly or Annual Fees covering the components that were replaced. a. ACCOUNT EXECUTIVE. SunGard shall assign an Account Executive to Subscriber to assist in monitoring the continued viability of Subscriber's disaster recovery capability and to facilitate ongoing communications between Subscriber and SunGard. to. HOTLINE. SunGard shall maintain a toll -free customer support telephone service, on a 24-hour-a-day, 7-day-a-week basis, which Subscriber may use as needed. �i. USER'S GUIDES. Subscriber shall receive SunGard's current User's Guides for the Recovery Services and all applicable updates and revisions, as and when issued. B. MAINTENANCE AND USE OF RECOVERY RESOURCES. The terms of this Section B are intended to ensure that the facilities and equipment used by SunGard to provide the Recovery Services ("Recovery Resources") are properly maintained and used, and to protect the respective interests of the parties in using the Recovery Resources. 1. MAINTENANCE. SunGard shall maintain vendor -specified proper operating environments at its facilities and in its vehicles used to provide the Recovery Services. SunGard shall adhere to vendor -recommended procedures and policies for proper maintenance of the Recovery Resources, including necessary remedial maintenance and regularly scheduled preventive maintenance. SunGard warrants to Subscriber that the Recovery Resources shall be maintained in a state of readiness at all times, consistent with SunGard's obligations under this Agreement. 2. SIGNIFICANT CHANGES. SunGard may change the Recovery Resources and shall give written notice to Subscriber at least 60 days before making any significant change that might substantially and adversely impact Subscriber. Subscriber shall then have an adequate and reasonable number of free additional Test Periods to Test the affected Recovery Services. If, in Subscriber's reasonable judgment, any such change substantially and adversely impacts Subscriber to the extent that Subscriber cannot use the affected Recovery Services, then Subscriber may terminate the affected Recovery Services by giving written notice to SunGard within ten days after Subscriber first uses the affected Recovery Services for either a Disaster or Test. 3. AUDITS. At any time except when the Recovery Resources are being used during a disaster or a confidential test, Subscriber may, at its expense, audit the Recovery Resources to verify SunGard's compliance with this Agreement. SunGard also shall permit any regulatory authority having jurisdiction over Subscriber to inspect the Recovery Resources, SunGard shall, at its expense, have the Recovery Resources annually reviewed by an independent third -party auditor, whose reports shall be furnished to Subscriber upon request. 4. STANDARD PROCEDURES. SunGard shall maintain reasonable and uniform policies regarding security, safety, scheduling, operations and other procedures for accessing and using the Recovery Resources during disasters and tests. These policies may appear in SunGard's User's Guides and in other written documents provided by SunGard to its subscribers from time to time. Both SunGard and Subscriber shall comply with these policies in all material respects and shall use all Recovery Resources in accordance with manufacturer specifications. Policies for tests include advance scheduling and cancellation requirements. Any Test Period(s) cancelled by Subscriber less than 45 days before the scheduled date will be applied against Subscriber's annual allotment of Test Periods unless SunGard is able to reschedule the cancelled Test Period(s) with another subscriber. 5. SPECIAL PROCEDURES. If Subscriber gives written notice to SunGard describing any special data protection or other security procedures used by Subscriber, then SunGard shall use commercially reasonable efforts to help implement those procedures whenever Subscriber is using the Recovery Resources. Subscriber shall be responsible for any additional expenses reasonably incurred by SunGard in implementing Subscriber's special procedures. 6. MOBILE RESOURCES. Title to all of the Recovery Resources used to provide Mobile Recovery Services ("Mobile Resources"), wherever located, shall remain in SunGard or its supplier, except for any Quick Ship Equipment as to which Subscriber properly exercises its purchase option, if any, described in the applicable Schedule. With respect to any Mobile Resources for which the destination is not a SunGard facility, (a) Subscriber shalt obtain or provide, at Subscriber's expense, all permits, landlord consents and other authorizations, and all communications, power and other utility lines and equipment, needed to possess, locate or use the Mobile Resources at that destination, (b) Subscriber shall be responsible for the security of the Mobile Resources at that destination, (c) Subscriber shall not relocate the Mobile Resources without SunGard's prior written consent which will not be unreasonably withheld, (d) when Subscriber's use or right to use the Mobile Resources during a Disaster or Test ends, Subscriber shall comply with SunGard's return delivery or shipment instructions, and (e) if the Mobile Resources do not include a SunGard vehicle, then Subscriber shall provide a proper operating environment for the Mobile Resources. If any Mobile Resources are provided by a third party under contract with SunGard and that contract is terminated, then SunGard will use commercially reasonable efforts to replace the Mobile Resources. if SunGard is unable to replace the Mobile Resources, then SunGard may terminate the applicable Recovery Services upon 90 days prior written notice to Subscriber. C. MULTIPLE DISASTER. Subscriber's rights of immediate and exclusive use of the Recovery Services, as provided in Section A2, shall be subject to the possibility that one or more other subscribers ("other affected subscribers") could declare a disaster at the same time as (or before or after) Subscriber and require use of the same Recovery Resources at the same time as Subscriber ("Multiple Disaster"). The following provisions are intended to avoid or minimize contention for Recovery Resources during Multiple Disasters. 1. PRIORITY RESOURCES AND SHARED RESOURCES. All Recovery Resources shall be available on a priority use basis ("Priority Resources") except for those designated by SunGard as available on a shared use basis ("Shared Resources"). SunGard's designations of Shared Resources shall be made in its reasonable discretion and shall be subject to change without notice. 2. ACCESS AND USE PROCEDURES. Access to and use of Recovery Resources during disasters shall depend upon whether the Recovery Resources are Priority Resources or Shared Resources and, with respect to Priority Resources, the order in which disasters are declared. SunGard shall maintain records of its receipt of disaster declarations, which shall be the exclusive basis for determining the order in which disasters are declared. (a) Subscriber shall have priority rights of access to and use of applicable Priority Resources that are not then being used by other affected subscribers who previously declared disasters. Use of such Priority Resources is exclusive for as long as Subscriber is entitled to use them under Section A2. (b) Subscriber and all other affected subscribers shall have equal rights of access to and use of applicable Shared Resources, irrespective of the order in which disasters occur or are declared. Use of Shared Resources may be exclusive at times, but remains subject to the possible need for shared or allocated use with other affected subscribers. (c) If applicable Priority Resources and applicable Shared Resources are both available, Subscriber may choose which type to use. (d) Subscriber shall cooperate with SunGard and all other affected subscribers as reasonably required under the circumstances, including to coordinate the efficient use of Recovery Resources, to avoid or minimize the need for shared or allocated use of Shared Resources, and to implement any necessary plans for shared or allocated use of Shared Resources. (e) If a Multiple Disaster is widespread or extreme, then, notwithstanding the foregoing provisions, SunGard may implement emergency procedures that are necessary, in SunGard's reasonable judgment, to allocate Recovery Resources in order to satisfy the critical needs of affected subscribers, applicable national security interests and comparable concerns. 3. MULTIPLE DISASTER PROTECTION. To lower the probability of a Multiple Disaster, SunGard shall comply with the following terms: (a) No other subscriber shall be granted any greater rights of access to or use of the Recovery Resources than are granted to Subscriber under this Agreement. (b) No agreement to provide use of any Recovery Resources shall be entered into at a time when the subscriber location to be serviced is then currently experiencing a disaster. For Center -Based Recovery Services, SunGard also shall comply with the following: (c) To discourage unnecessary disaster declarations, Disaster Declaration Fees, as provided in the Schedules, shall be charged whenever a subscriber declares a disaster. (d) To discourage unnecessary use of the Recovery Resources, Daily Usage Fees, as provided in the Schedules, shall be charged for use of the Recovery Resources other than for tests. 4. CRISIS MANAGEMENT. Whenever SunGard learns of an approaching storm or other situation that might cause a Multiple Disaster, SunGard shall monitor the situation and use commercially reasonable efforts to coordinate contingency plans with all potentially affected subscribers. D.1. FEES AND EXPENSES. All Monthly or Annual Fees shall be invoiced by SunGard in advance, All other fees, and any out-of-pocket expenses reasonably incurred by SunGard on behalf of Subscriber and with prior authorization, shall be invoiced by SunGard as and when incurred. Subscriber's payments shall be due within 30 days after receipt of invoice. For any amount not paid when due, Subscriber will pay interest at the lesser of fifteen percent (15%) per annum or the maximum amount permitted by law. if Subscriber fails to cure a material breach of its payment obligations within the cure period specified in Section D.6, then SunGard may accelerate Subscriber's obligation to pay all remaining Monthly or Annual Fees, and Subscriber shall pay all collection costs. Subscriber shall be responsible for (a) any applicable Disaster Fees as indicated on a Schedule, (b) all communications and similar third party charges resulting from Subscriber's use of the Recovery Resources, (c) all power, fuel and other utility charges resulting from Subscriber's use of the Recovery Resources, except the initial six weeks of Hotsite use and except for Tests, (d) all costs associated with the transportation, delivery, operation and ongoing support of Mobile Resources used by Subscriber, (e) all costs associated with the installation and de -installation of Mobile Resources used by Subscriber at non-SunGard locations, and (f) any sales, use, excise or comparable taxes assessed or imposed upon the services provided or the amounts charged under this Agreement. Beginning one year after the Commencement Date of a Schedule, SunGard may increase all fees chargeable under that Schedule by up to 8% per contract year, by giving Subscriber at least 90 days prior written notice.