Exhibit 10.28
MASTER AGREEMENT
FOR
U.S. AVAILABILITY SERVICES
BETWEEN
SUNGARD AVAILABILITY SERVICES LP
(“SunGard”)
(“SunGard”)
AND
ATHENAHEALTH, INC.
A Delaware corporation
(“Customer”)
(“Customer”)
DATED DECEMBER 1, 2009
By the signatures of their duly authorized representatives below, SunGard and Customer, intending to be legally bound, agree to all of the provisions of this Master Agreement.
| SUNGARD AVAILABILITY SERVICES LP | CUSTOMER: ATHENAHEALTH, INC. | |||||||
| By: | /s/ Christopher Coleman | By: | /s/ Carl B. Byers | |||||
| Print: CHRISTOPHER COLEMAN | Print Name: Carl B. Byers | |||||||
| Print Title: VICE PRESIDENT | Print Title: SVP & CFO | |||||||
| Date Signed: 12/4/09 | Date Signed: December 1, 2009 | |||||||
This agreement is comprised of the general terms and conditions set forth below and the terms and conditions set forth in the services exhibit(s) attached hereto (each a “Services Exhibit”). The general terms and conditions set forth below and the Services Exhibit(s) are referred to collectively as the “Master Agreement” and the services described in the Services Exhibits are referred to collectively as the “Services”. The Services selected by Customer shall be set forth on a schedule(s) which will designate the type of Services it covers by reference to one of the Services Exhibits (each a “Schedule”). Each Schedule entered into hereunder represents a separate contract between SunGard and Customer or one of its Affiliates (as defined below) that Incorporates and is governed by all of the terms of this Master Agreement. Each Schedule may be signed by Customer or one of its Affiliates, and such signer shall be deemed to be “Customer” for purposes of that Schedule, provided that the Customer who signed this Master Agreement shall be jointly and severally liable with such Affiliate for the performance of all obligations under such Schedule. If there is a conflict between the general terms and conditions set forth below, a Services Exhibit, or a Schedule, the order of precedence shall be as follows: 1) the Schedule, 2) the Services Exhibit, and 3) these general terms and conditions. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party for as long as such relationship remains in effect.
THE TERMS OF THIS MASTER AGREEMENT ARE CONFIDENTIAL
GENERAL TERMS AND CONDITIONS.
1.CONTRACT TERM.This Master Agreement shall continue in effect as long as there is a Schedule in effect. The term of a Schedule, and Customer’s rights to use the Services selected on that Schedule, shall begin on the Commencement Date stated in that Schedule and continue in effect for the Agreed Term stated in that Schedule. There shall be no automatic renewals of this Master Agreement or any Schedule to the Master Agreement. Customer acknowledges that SunGard requires this advance notice due to the substantial long-term equipment and facilities commitments SunGard makes in reliance upon its customer contracts. Each Schedule is a non-cancelable contract that may be terminated only in accordance with its express terms.
2.FEES AND EXPENSES.All Monthly or Annual Fees (as defined in a Schedule) shall be invoiced by SunGard in advance at the billing address defined in the Schedule. All other fees, and any out-of-pocket expenses reasonably incurred by SunGard on behalf of Customer shall be invoiced by SunGard as and when incurred. Customer’s payments shall be due within thirty (30) days after receipt of invoice. For any amount not paid when due, Customer will pay interest at the lesser of fifteen percent (15%) per annum or the maximum amount permitted by law. Unless Customer provides a valid tax exemption certificate, Customer shall be responsible for any sales, use, excise or comparable taxes assessed or imposed upon the Services provided or the amounts charged under a Schedule.
3.CONFIDENTIALITY.
(a) All information disclosed by one party to the other in connection with this Master Agreement shall be treated as confidential (“Confidential Information”). With respect to Confidential Information disclosed by one party (“disclosing party”) to the other party (“receiving party”), (i) the receiving party shall hold such Confidential Information in strict confidence using the same standard of care as it uses to protect its own confidential information but not less than a reasonable standard of care, (ii) the receiving party shall not use or disclose such Confidential Information for any purpose except as necessary to fulfill its obligations under a Schedule or this Master Agreement, or except as required by law provided that the disclosing party is given a reasonable opportunity to obtain, at its expense, a protective order (the receiving party shall reasonably cooperate with the disclosing party in connection therewith), (iii) the receiving party shall limit access to such Confidential Information to such of its employees, agents and contractors who need such access to fulfill the receiving party’s obligations under a Schedule, and (iv) the receiving party shall require its employees, agents and contractors who have access to such Confidential Information to abide by the confidentiality provisions of this Master Agreement.
(b) Without limiting the generality of the foregoing, such Confidential Information includes, but is not limited to, (i) with respect to Customer, Customer’s data and software (including Customer NPI as defined below) and the details of Customer’s computer operations and recovery procedures, which may include trade secrets of Customer, data relating to Customer’s clients and client transactions, (ii) with respect to SunGard, SunGard’s physical security systems, access control systems, specialized recovery equipment and techniques, pricing information, Services Guides, and E-Testing Program, which include trade secrets of SunGard, and (iii) with respect to both parties, the terms of this Master Agreement and all Schedules and any detailed information regarding the performance of this Master Agreement or any Schedule.
(c) Confidential Information shall not include information that (i) is or becomes publicly available through no wrongful act of the receiving party, (ii) was known by the receiving party without any obligation of confidentiality at the time of disclosure by the disclosing party, (iii) was obtained by the receiving party from a third party without restriction on disclosure, or (iv) was developed independently by the receiving party.
(d) To effect the purposes of a Schedule, Customer may from time to time provide SunGard with certain “nonpublic personal information” as defined by the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1138) and the rules and regulations promulgated thereunder (“Customer NPI”). To protect the privacy of Customer NPI pursuant to the requirements of such act, SunGard shall, in addition to complying with the confidentiality requirements set forth above, (i) implement appropriate administrative, technical and physical safeguards designed to ensure the security and confidentiality of Customer NPI, protect against any anticipated threats or hazards to the security or integrity of Customer NPI and protect against unauthorized access to or use of Customer NPI that could result in substantial harm or inconvenience to a customer of Customer; and (ii) permit Customer to monitor SunGard’s compliance with the foregoing during Customer’s use of the Services, provided that such monitoring shall not interfere with another customer’s use of SunGard’s services or with SunGard’s operations.
4.TERMINATION.
(a) If either party breaches any of its obligations under a Schedule in any material respect and the breach is not substantially cured within the cure period specified below, then the other party may terminate that Schedule, without penalty, by giving written notice to the breaching party at any time before the breach is substantially cured. If this Master Agreement includes a Recovery Services Exhibit or a Restoration Services Exhibit for Managed IT Services (“RS for MS Exhibit”), then (i) with respect to a breach of SunGard’s obligations to provide the Recovery or Restoration Services to Customer during a Disaster (as such terms are defined in the Recovery Services Exhibit), the cure period shall be five (5) days, and (ii) with respect to Customer’s obligations under the access and use provisions set forth in Sections A.2, A.3 and C of the Recovery Services Exhibit or the RS for MS Exhibit, there shall be no cure period (and SunGard shall have the right to terminate the applicable Schedule immediately). With respect to Customer’s obligations to comply with SunGard’s Network Policies (as defined in the applicable Services Exhibit), the cure period shall be five (5) days. With respect to all other obligations, unless otherwise specified, the cure period shall be thirty (30) days after receipt of written notice describing the breach, provided that, if a longer period is reasonably required to cure the breach and the cure is promptly begun, such cure period shall be extended for as long as the cure is being diligently prosecuted to completion.
(b) If a Schedule is terminated due to an uncured material breach by Customer, or if Customer properly
exercises a right to cancel a Schedule before the end of the Agreed Term for any reason other than due to SunGard’s uncured material breach, then Customer shall (i) pay to SunGard the unamortized balance attributable to any equipment and software purchased by SunGard on behalf of Customer (as designated in the applicable Schedule) and (ii) reimburse SunGard for any cancellation charges for third party services purchased by SunGard on behalf of Customer.
5.LIABILITY AND INDEMNIFICATION.
(a) Each party (“liable party”) shall be liable to the other party for any direct damages caused by any breach of contract, negligence or willful misconduct of the liable party (or any of its employees or agents).
(b) The liable party shall indemnify and hold harmless the other party (and its Affiliates and their respective employees and agents) against any claims, actions, damages, losses or liabilities to the extent arising from any breach of contract, negligence or willful misconduct of the liable party (or any of its employees or agents).
(c) In addition, SunGard shall indemnify and hold harmless Customer against any claims, actions, damages, losses or liabilities to the extent arising from infringement of any U.S. patent, copyright or other proprietary right resulting from Customer’s use of intellectual property developed or owned by SunGard and used to provide the Services. In addition to the foregoing indemnification, SunGard’s liability with respect to this Section 5(c) is limited to making the Services non-infringing or arranging for Customer’s continued use of the Services, provided that, if both of the foregoing options are commercially impracticable for SunGard, then upon written notice to Customer, SunGard may cancel the affected portion of the Services and refund to Customer any prepaid fees for such Services. With respect to intellectual property of third parties that is used by SunGard to provide the Services, SunGard will, to the extent possible, provide to Customer the full benefit of all applicable warranties and indemnities granted to SunGard by such third parties.
(d) In addition, Customer shall indemnify and hold harmless SunGard against any claims, actions, damages, losses or liabilities to the extent arising from (i) infringement of any U.S. patent, copyright or other proprietary right attributable to Customer’s data, content, software or other materials, (ii) Customer’s use of any Services in violation of any law, rule or regulation, (iii) Customer’s violation of any of SunGard’s Network Policies (as defined in the applicable Services Exhibit), or (iv) Customer’s use, control or possession of any Mobile Resources at non-SunGard facilities.
(e) An indemnifying party shall have no obligation for indemnification unless the other party promptly gives written notice to the indemnifying party after any applicable matter arises and allows the indemnifying party to have sole control of the defense or settlement of any underlying claim; provided that the indemnifying party may not settle a claim without the other party’s prior written consent. Notice will be considered prompt as long as there is no material prejudice to the indemnifying party.
6.LIMITATION OF LIABILITY
(a)Under no circumstances shall either party be liable for lost revenues, lost profits, loss of business, or consequential, indirect, exemplary, special or punitive damages of any nature, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, and whether or not the possibility of such damages is foreseeable; provided that this exclusion shall not apply to (i) the party’s respective confidentiality obligations under Section 3, (ii) SunGard’s indemnification obligations under Section 5(b) with respect to willful misconduct and under Section 5(c), and (iii) Customer’s indemnification obligations under Section 5(b) with respect to willful misconduct and under Section 5(d). Customer acknowledges and agrees that for the purposes of this section, “lost profits” and “lost revenues” does not include its payment obligations to SunGard pursuant to this Master Agreement.
(b) Except for SunGard’s indemnification obligations under Section 5(b) with respect to willful misconduct and under Section 5(c), SunGard’s total liability under a Schedule, whether in contract, tort (including negligence or strict liability), or otherwise, shall not exceed (i) the actual Monthly Fees paid by Customer to SunGard under that Schedule for the most recent eighteen (18) month period, or (ii) in the case of Professional Services, the actual service fees paid by Customer for the Professional Services under that Schedule.
(c) Except for any direct damages caused by SunGard’s negligence or willful misconduct, or in the case of Managed IT Services, SunGard’s breach of contract, SunGard shall have no liability for any damage to, or loss or theft of, any of Customer’s tangible property located at a SunGard facility or in a SunGard vehicle.
(d) Except for any direct damages caused by SunGard’s negligence or willful misconduct, or in the case of Managed IT Services, SunGard’s breach of contract, SunGard shall have no liability for any of Customer’s data, content, software or other materials located, used or restored at a SunGard facility or in a SunGard vehicle, or transmitted using SunGard’s Network Services. If Customer’s data is damaged, lost or stolen as a result of SunGard’s breach of contract or negligence, then SunGard shall be liable to Customer only for Customer’s documented out-of-pocket expenses incurred to recreate such data. The foregoing sentence shall not supersede or otherwise amend SunGard’s liability for a breach of its obligations under Section 3 (Confidentiality) herein. Under no circumstances will SunGard be considered the official custodian or record keeper of Customer’s data for regulatory or other purposes.
(e)WITH RESPECT TO EACH SCHEDULE, EXCEPT AS SPECIFICALLY STATED IN THIS MASTER AGREEMENT OR SUCH SCHEDULE, SUNGARD MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NONINTERFERENCE OR NON-INFRINGEMENT.
7.FORCE MAJEURE.Neither party shall be liable for, nor shall either party be considered in breach of this Master Agreement or any Schedule due to, any failure to perform its obligations as a result of a cause beyond its control, including any natural calamity, act of God or a public enemy, act of any
military, civil or regulatory authority, change in any law or regulation, disruption or outage of communications, power or other utility, failure to perform by any supplier or other third party, or other cause which could not have been prevented with reasonable care.
8.NOTICE.All notices, consents and other communications under this Master Agreement shall be in writing and shall be deemed to have been received on the earlier of (a) the date of actual receipt at the designated street address, (b) the first business day after being sent to the designated street address by a reputable overnight delivery service, or (c) the third business day after being mailed to the designated street address by first class mail. Any notice may be given by e-mail to the designated e-mail address or by fax to the designated fax number, provided that a signed written confirmation is received at the designated street address within seventy-two (72) hours thereafter. Disaster declaration notice (as described in the Recovery Services Exhibit) may be given orally, provided that a signed written confirmation is received at the applicable recovery facility within twenty-four (24) hours thereafter. Communications sent to any street address, e-mail address or fax number other than those designated in this Master Agreement or the applicable Schedule shall not be valid. Customer’s street address, e-mail address and fax number for notice are stated in the applicable Schedule. SunGard’s street address for notice is 680 East Swedesford Road, Wayne, Pennsylvania 19087, Attention: Contract Administration. SunGard’s e-mail address for notice iscontract.admin@sungard.com. SunGard’s fax number for notice is 1-610-225-1125.
9.PUBLICITY.Neither party will, without the other party’s prior written consent, (a) use the name, trademark, logo or other identifying marks of the other party in any sales, marketing or publicity activities or materials, or (b) issue any press release, interviews or other public statement regarding this Master Agreement or any Schedule; provided that either party may publicly refer to the other by name as a vendor or customer and may disclose the existence and general nature of this Master Agreement (but not any of the specific terms of this Master Agreement or any Schedule or any detailed information regarding the performance of this Master Agreement or any Schedule). Notwithstanding the foregoing, either party may disclose the general terms and length of term of this Master Agreement to such party’s current and prospective business partners and investors provided that prior to the disclosure of the Confidentiality Information in Section 3 described above, such party’s current and prospective business partners and investors will execute or have executed an agreement with such party whereby that party’s current and prospective business partners agree (i) that it will not use the Confidential Information for any purpose other than stated herein and (ii) that it will not share the Confidential Information with any of its affiliates nor any persons not having a need to know the Confidential Information. In addition, notwithstanding the other party’s consent to the disclosure, the party disclosing Confidential Information to its current and prospective business partners and investors agrees to indemnify the other party for any damages, losses, claims, actions or liabilities to the extent arising from any third party’s unauthorized use of the Confidential Information. In addition, Customer may disclose the terms of this Master Agreement, but only to the extent necessary, to comply with applicable securities laws. In such event, Customer shall reasonably co-operate with SunGard in determining which terms of this Master Agreement need to be disclosed to the necessary securities authorities.
In addition, notwithstanding the other party’s consent to the disclosure, the party disclosing Confidential Information to its current and prospective business partners and investors agrees to indemnify the other party for any damages, losses, claims, actions or liabilities to the extent arising from any third party’s unauthorized use of the Confidential Information. In addition, Customer may disclose the terms of this Master Agreement, but only to the extent necessary to comply with applicable securities laws. In such event, Customer shall reasonably co-operate with SunGard in determining which terms of this Master Agreement need to be disclosed to the necessary securities authorities.
10.ENTIRE UNDERSTANDING.This Master Agreement states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, negotiations and other written or oral communications between the parties with respect to its subject matter. Each Schedule states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, negotiations and other written or oral communications between the parties with respect to its subject matter. No modification of this Master Agreement or any Schedule, and no waiver of any breach of this Master Agreement or any Schedule, shall be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Master Agreement or any Schedule, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach thereof. Any purchase order submitted by Customer to SunGard shall be used only for invoice processing purposes and shall have no legal effect.
11.PARTIES IN INTEREST.Neither party may assign this Master Agreement or any Schedule, or any rights or obligations thereunder, without the prior written consent of the other party, which will not be unreasonably withheld; provided that either party may assign any Schedule to an Affiliate by giving prior written notice to the other party, and assign this Master Agreement and any Schedule hereto as part of a corporate reorganization, consolidation, merger, change of control with respect to its outstanding stock, or sale of substantially all of its assets, provided however that (i) the financial condition of any such successor entity or purchaser, as applicable, shall not have a material adverse effect on the ability of SunGard to receive contracted payments under this Master Agreement or any Schedule thereto as a result of such assignment or transfer and (ii) any such successor entity or purchaser, as applicable, agrees to be bound by the obligations set forth in this Master Agreement. This Master Agreement and each Schedule shall bind, benefit and be enforceable by and against both parties and their respective successors and permissible assigns. No third party shall be considered a beneficiary of, or entitled to any rights under, this Master Agreement or any Schedule.
12.CONSTRUCTION. THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY SUBSTANTIVE PENNSYLVANIA LAW.This choice of governing law shall not be considered determinative of the jurisdiction or venue of any action between the parties. In any action relating to this Master Agreement or any Schedule, (a) each of the parties irrevocably waives the right to trial by jury, (b) each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the designated street address at which the party is to receive
notice in accordance with Section 8 of this Master Agreement, and (c) the prevailing party shall be entitled to recover its reasonable attorney’s fees (including, if applicable, charges for in-house counsel), court costs and other legal expenses from the other party. A determination that any term of this Master Agreement or any Schedule is invalid or unenforceable shall not affect the other terms thereof. Section headings are for convenience of reference only and shall not affect the interpretation of this Master Agreement or any Schedule. The relationship between the parties created by this Master Agreement or any Schedule is that of independent contractors, and not partners, joint venturers or agents. Sections 3, 5, 6 and 12 shall survive any termination of this Master Agreement or any Schedule.
13.ENFORCEMENT.Each party acknowledges that the provisions of this Master Agreement regarding confidentiality and access to and use of the other party’s resources are reasonable and necessary to protect the other party’s legitimate business interests. Each party acknowledges that any breach of such provisions shall result in irreparable injury to the other for which money damages could not adequately compensate. If there is a breach of such provisions, then the injured party shall be entitled, in addition to all other rights and remedies which it may have at law or in equity, to have a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all persons involved from continuing the breach. The existence of any claim or cause of action that a party (or any other person involved in the breach) may have against the other party shall not constitute a defense or bar to the enforcement of such provisions.
©2008 SunGard Availability Services LP, all rights reserved.
MSA0608
MSA0608
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omission.
Schedule Number 3003703300 v. 1.0
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 1 of 4
Schedule Reference Name: Scottsdale Data Center
This is a new Schedule having an Agreed Term of 26 months with a Commencement Date of December 1, 2009.
SUMMARY OF SERVICES AND FEES
Selected Services | ||||
| Hosting Services | ||||
| Network Services | ||||
| Security Services | ||||
One-Time Fee | $ * | |||
Monthly Fee | See Billing Schedule | |||
All One-Time Fees will be invoiced to Customer upon counter-execution of the Schedule by SunGard and are due in accordance with the Master Agreement.
BILLING SCHEDULE
| Invoice From: | Monthly Fee: | |||
| 12/01/2009 | $ | * | ||
| 02/01/2010 | $ | * | ||
| 02/01/2011 | $ | * | ||
Section 2, Fees and Expenses, of Master Agreement is amended by deleting the last sentence of the Section during the current Agreed Term of the Schedule.
By the signatures of their duly authorized representatives below, SunGard and Customer, intending to be legally bound, agree to all of the provisions of this Schedule and ratify the terms of the Master Agreement.
| SUNGARD AVAILABILITY SERVICES LP | ATHENAHEALTH | |||||||
| By: | /s/ Christopher Coleman | By: | /s/ Carl B. Byers | |||||
| Print Name: Christopher Coleman | Print Name: Carl B. Byers | |||||||
| Print Title: Vice President | Print Title: SVP & CFO | |||||||
| Date Signed: 12/4/09 | Date Signed: December 1, 2009 | |||||||
 | DOC ID: 3003703300 VER.: 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: NOV. 23, 2009 10:33:08 AM |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omission.
Schedule Number 3003703300 v. 1.0
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 2 of 4
This Schedule is subject to the terms and conditions of the Managed IT Services Exhibit version MITS-0109.
| CUSTOMER INFORMATION | ||
| BILL TO ADDRESS: | 311 ARSENAL STREET, WATERTOWN, MA 02472 US GEORGE SMITH | |
| NOTIFICATION ADDRESS: | 311 ARSENAL STREET, WATERTOWN, MA 02472 US GEORGE SMITH | |
| DESIGNATED SUNGARD FACILITY: | * |
| DOC ID: 3003703300 VER.: 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: NOV. 23, 2009 10:33:08 AM |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omission.
Schedule Number 3003703300 v. 1.0
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 3 of 4
| Qty | Hosting Services | |||
| 20 | Hardware Installation Service | |||
| 5 | Operational Support Services (Hours per Month) | |||
| 2 | Secure Cabinet (208/220V 30A 3-Phase) | |||
| Qty | Network Services | |||||||||||
| 1 | * | Usage Based Fee | $* | 1 | ||||||||
| 1 | * | |||||||||||
| 2 | * | |||||||||||
| 1 | * | |||||||||||
| 1 | * | |||||||||||
| 1 | * | |||||||||||
| Qty | Security Services | |||
| 1 | * | |||
| 1 | * | |||
| 1 | * | |||
| DOC ID: 3003703300 VER.: 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: NOV. 23, 2009 10:33:08 AM |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Schedule Number 3003703300 v. 1.0
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
For Managed IT Services Governed by
Master Agreement for U. S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 4 of 4
FOOTNOTES
| 1. | Usage Fee per Mbps over Committed Bandwidth Tier Level. |
| DOC ID: 3003703300 VER.: 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: NOV. 23, 2009 10:33:08 AM |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
MANAGED IT SERVICES EXHIBIT TO THE
MASTER AGREEMENT for U.S. AVAILABILITY SERVICES
Dated December 1, 2009
MASTER AGREEMENT for U.S. AVAILABILITY SERVICES
Dated December 1, 2009
A. POLICIES AND SERVICES GUIDE
The services provided under this Exhibit shall at all times be used in compliance with SunGard’s then-current general policies and guidelines (“General Policies”) and the policies and guidelines of SunGard’s underlying telecommunications providers (“Network Policies”) (collectively, the General Policies and Network Policies are sometimes herein referred to as “Policies”). Customer agrees to be bound by the Policies, as amended. All Policies, including change management policies and procedures, and additional detail regarding the specifications of the service offerings, are set forth in SunGard’s Services Guide, which is available to Customer at SunGard’s customer portalhttp://www.MySunGard.com (“Portal”). In addition, all implementation services which are included as part of a service offering, are detailed in the Services Guide.
Upon completion and full execution of a Managed IT Services Schedule, Customer will receive access to the Portal. Upon receiving access, Customer shall enter the Portal and subscribe to the Services Guide in accordance with the instructions specified in the Portal and shall provide an email address(es) electronically so that notices of changes to the Services Guide will automatically be sent to the email address(es) provided. The email will notify Customer that the Services Guide has been changed and upon accessing the Services Guide, the cover page will indicate the Section(s) modified, deleted or added.
B. HOSTING SERVICES
1. Space
a. SunGard hereby grants to Customer the right to use the Space (as defined in the Schedule) for the placement and maintenance of the computer and communications equipment specified in the Schedule (“Equipment”) which may be interconnected to the Network Services offered by SunGard (as defined herein) or to other communications carriers via facilities offered by SunGard. The Equipment and any necessary software (“Software”) may be provided by Customer (“Customer-provided Equipment” or “Customer-provided Software”) or by SunGard (“SunGard-provided Equipment” or “SunGard-provided Software”) as specified in the Schedule. Customer acknowledges that the Space shall be used in accordance with the Equipment vendor’s specifications for electrical, airflow, and clearance.
With the exception of the Full Infrastructure Management Space option, as defined herein, if Customer desires to install Equipment in the Space that exceeds the vendor specification(s), SunGard reserves the right to require Customer to contract for additional Space. This Exhibit does not create any interest in real estate and is strictly an agreement for the provision of services, which are personal in nature to the parties. The Monthly Fees and any other fees in connection with Customer’s use of the Space are set forth in the Schedule. Customer’s use of the Space shall not interfere with any other SunGard customer’s use of SunGard’s facilities. Customer represents and warrants that it has the full legal right to utilize any Customer-provided Equipment and Software. The Equipment shall operate on conditioned UPS-based power with transparent and immediate access to a backup power source capable of sustaining power to the Equipment during any interruption to the primary power source.
b. SunGard shall perform such janitorial services, environmental systems maintenance, power plant maintenance and other services as are reasonably required to maintain the facility in which the Space is located in good condition suitable for the placement of Equipment. With the exception of the Full Infrastructure Management Space option (as defined herein), Customer shall keep the Space clear of all refuse, cardboard or any potentially hazardous material. Customer shall maintain the Space in an orderly and safe condition, and shall return the Space to SunGard at the conclusion of the Agreed Term as defined in the Schedule in the same condition (reasonable wear and tear excepted) as when such Space was delivered to Customer.EXCEPT AS EXPRESSLY STATED HEREIN, THE SPACE SHALL BE DELIVERED AND ACCEPTED “AS IS”. THE SPACE SHALL BE IN SECURE FACILITIES MONITORED TWENTY-FOUR (24) HOURS PER DAY, SEVEN (7) DAYS PER WEEK BY ON-SITE STAFF, WITH CARD KEY ACCESS AND CLOSED CIRCUIT TV MONITORING, CONDITIONED POWER UTILIZING UPS SYSTEMS AND BACK-UP POWER GENERATOR CAPABILITY (“INFRASTRUCTURE”).SunGard represents that it will not materially diminish such Infrastructure at the Designated SunGard Facility (as defined in the Schedule) during the Agreed Term. At its sole risk and expense, Customer shall be responsible for installation of the Customer-provided Equipment in the Space, unless Customer elects to contract for Hardware Installation Services as set forth herein. If Customer elects to contract for Hardware Installation Services, then SunGard shall be responsible for the installation of the Customer-provided Equipment to the extent provided herein. At its sole risk and expense, Customer shall be responsible for installation of Customer-provided Software in the Space. Upon termination or expiration of the Schedule, Customer shall be responsible for removal of the Customer-provided Equipment and Software from the Space within ten (10) business days of such termination or expiration.
c. In addition to the Policies, Customer shall abide by any posted rules relating to the use of, access to, or security measures respecting the Space. The Customer-provided Equipment shall be installed, operated, inspected, maintained, repaired, replaced and removed only by qualified agents of Customer who are properly licensed, if applicable, a list of whom shall be provided to SunGard in advance of any such activity. Customer shall not permit any liens to be placed against all or any portion of the Space or any SunGard-provided Equipment or Software. Customer shall not make any material alterations to the Space without the prior written consent of SunGard. In the event that unauthorized parties gain access to the Space through access cards, keys or other access devices provided to Customer (“Access Devices”),
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
Customer shall be responsible for any damages incurred as a result thereof. Customer shall be responsible for the cost of replacing any Access Devices lost or stolen after delivery thereof to Customer.
If Customer fails to pay SunGard any amounts due under a Schedule, and such failure continues for more than thirty (30) days after receipt of SunGard’s written notice of nonpayment, included in SunGard’s right to terminate Customer’s use of the Space is the right to disconnect and remove any or all of the Equipment from the Space (including any data or Software resident on such Equipment), and store any Customer-provided Equipment in any reasonable location for a period not to exceed six (6) months and assess Customer reasonable charges for such storage. Upon conclusion of the six (6) month period, SunGard may dispose of such Equipment without liability to Customer. SunGard may redeploy any SunGard-provided Equipment in any manner in its sole discretion and shall delete all Customer data residing on such SunGard-provided Equipment before redeployment. Any of Customer’s data or Software resident on Customer-provided Equipment shall be removed, stored and/or disposed of in the manner and for the period specified above for Customer-provided Equipment. Exercise of any of the above rights by SunGard shall not relieve Customer of any of its payment obligations under the Master Agreement.
d. SunGard reserves the right to change the location or configuration of the Space, at SunGard’s sole expense, within the Designated SunGard Facility or to another SunGard facility; provided, however, that SunGard shall not arbitrarily or discriminatorily require such changes. SunGard and Customer shall work in good faith to minimize any disruption to Customer’s Services that may be caused by such change in location or configuration of the Space. If the location of the Space is to be moved to another SunGard facility, SunGard shall provide Customer with at least ninety (90) days prior written notice of such relocation and Customer shall have the right to (a) elect to be relocated to another SunGard facility, or (b) elect to terminate the Schedule without penalty. Customer shall provide SunGard with written notice of its decision regarding the preceding sentence within thirty (30) days after receipt of SunGard’s written notice. In addition, SunGard reserves the right to upgrade or modify the infrastructure used to provide the Services provided that any such change will not adversely affect Customer’s environment in the Space.
e. Prior to Customer’s occupancy, and during the Agreed Term of the Schedule, Customer shall procure and maintain the following minimum insurance coverage: (i) Workers’ Compensation in compliance with all applicable statutes of appropriate jurisdiction; Employer’s Liability with limits of $500,000 each accident; (ii) Commercial General Liability with combined single limits of $1,000,000 each occurrence, and a $2,000,000 general aggregate limit; and (iii) “All Risk” Property insurance covering the Customer-provided Equipment located in the Space. Customer shall provide to SunGard a certificate of insurance demonstrating that it has obtained the required insurance coverage prior to Customer’s occupancy of the Space. Such certificate shall contain a statement that Customer shall notify SunGard of any material changes or cancellation promptly. Customer shall require any contractor entering the Space on its behalf to procure and maintain the same types and amounts of insurance as set forth in this section.
f. With the exception of the Full Infrastructure Management Space option (as defined herein), SunGard shall provide to Customer (including any of its employees, agents and other authorized representatives as Customer may from time to time reasonably designate in writing), access to the part of the Designated SunGard Facility from which SunGard is providing the Space, twenty-four (24) hours per day, seven (7) days per week, including statutory holidays. All of Customer’s designees shall adhere to SunGard’s Policies.
g.Space Options— Customer may subscribe to any of the following options available relating to Space: (i) SunGard-provided 19” Cabinet; (ii) Secure Cabinet; (iii) Secure Space; (iv) Secure Cage; and (v) Secure Suite.
(i) SunGard-provided 19” Cabinet —The SunGard-provided 19” Cabinet option includes: (i) a minimum of 42 U EIA rack space for the Equipment; (ii) proper air ventilation for the Equipment; (iii) two (2) stationary equipment shelves; and (iv) security by lock and key, managed by SunGard.
(ii) Secure Cabinet —The Secure Cabinet option includes: (i) a SunGard-provided 19” Cabinet (as defined above); (ii) Space to support the SunGard-provided Cabinet; (iii) and the redundant power configuration as set forth in the Schedule with the corresponding voltage (“V”) and amperage (“A”).
(iii) Secure Space —The Secure Space option includes the amount of Space in the square feet increments defined in the Schedule and: (i) one (1) Standard Power Circuit (as defined herein) per twenty-five (25) square feet of Space defined for the Secure Space option in the Schedule or one (1) Standard Power Circuit (as defined herein) for each Cabinet installed in the Secure Space; and (ii) five (5) hours of Operational Support Services (as defined herein) per month.
(iv) Secure Cage —The Secure Cage option includes the amount of Space defined in the Schedule or the amount of Space necessary to install the number of Cabinets as set forth in the Schedule and: (i) perimeter metal fence with an access door; (ii) security by lock and key, managed by SunGard; (iii) one (1) Standard Power Circuit (as defined herein) per twenty-five (25) square feet of Space defined for the Secure Cage option in the Schedule or one (1) Standard Power Circuit (as defined herein) per Cabinet installed in the Secure Cage; and (iv) five (5) hours of Operational Support Services (as defined herein) per month.
(v) Secure Suite —The Secure Suite option includes the amount of Space defined in the Schedule for the number of cabinets as set forth in the Schedule. The Secure Suite option includes: (i) perimeter metal fence or perimeter walls with an access door; (ii) private security with card key and pin code or by lock and key; (iii) one (1) Standard Power Circuit (as defined herein) per twenty-five (25) square feet of Space defined for the Secure Suite option in the Schedule or one (1) Standard Power Circuit (as defined herein) for each cabinet installed in the Secure Space; and (iv) ten (10) hours of Operational Support Services (as defined herein) per month.
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3. Support Services
a.Hardware Installation Services.SunGard shall provide Hardware Installation Services for the number of devices set forth in the Schedule. Hardware Installation Services include the one-time installation of hardware devices and do not include on-going support. Hardware Installation Services include: (i) the unpacking and installation of the Equipment into nineteen inch (19”) computer racks or cabinets in
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accordance with hardware vendor recommendations and Customer requirements; (ii) the installation of network cables and cross-connects; and (iii) floor cutouts, as necessary.
b.Operational Support Services.SunGard will provide Customer with access to technical personnel to assist Customer on a 24x7x365 basis for the number of hours per month as set forth in the Schedule. In the event that Customer exceeds the number of hours indicated in the Schedule in any month, Customer may then elect to have SunGard attempt to resolve the problem on a time and materials basis at SunGard’s then prevailing hourly rate. Operational Support Services shall include: (i) the execution of a command or series of commands as directed by Customer to determine operating status or to facilitate configuration changes; (ii) enlisting of vendor support as requested by Customer and as available pursuant to Customer’s agreement with the applicable vendor; (iii) visual inspection of Equipment and power up, restart or reboot as directed by Customer; (iv) insertion and ejection of media as directed by Customer; and (v) preparation of media for pickup at the Designated SunGard Facility as requested by Customer. Customer is responsible for providing all media, related materials, storage containers, procedures and any off-site storage contract for the media.
c.Equipment Management Services.SunGard shall provide Equipment Management Services for the Equipment set forth in the Schedule. Equipment Management Services include: (i) resolution of detected Equipment failures; (ii) coordination of preventative maintenance; (iii) installation of microcode or firmware upgrades; (iv) power cycling or reboot; (v) issuance of software or firmware commands; and (vi) physical inspection of all Equipment components. With respect to Customer-provided Equipment, Customer is responsible for obtaining the consent of the maintenance vendor in order for SunGard to act as Customer’s agent.
d.SunGard-provided Equipment.If necessary in support of certain Services, SunGard may install certain SunGard-provided Equipment in Customer’s Space.
4. Server Services.For all Services listed in this Section, Customer shall place Customer-provided Equipment and Customer-provided Software under a valid maintenance contract with the original equipment/software manufacturer for 24x7x365 support with four (4) hour onsite response time. In the event that Customer elects to contract for an Operating System license under SunGard’s Software Licensing Services (as defined herein), SunGard shall provide a valid maintenance contract for the Operating System license with the original software manufacturer. If Customer elects to contract for maintenance services with a vendor other than the original equipment/software manufacturer, Customer is responsible for all issues arising as a result thereof and associated obligations.
Customer acknowledges that for SunGard to provide Server Services, Customer’s server(s) must be configured with a drive capable of reading a CD-ROM to facilitate the installation of utility software on the disk volume where the operating system resides. Customer must subscribe to Data Back-up Services (as defined herein) or Vaulting Services — Restoration Support Option (as defined herein) and provide a minimum of one (1) dedicated network interface per server for administration and monitoring, as well as one (1) dedicated network interface per server for Data Back-up Services (as defined herein) in order to receive Server Services. Customer acknowledges that SunGard will install utility software on the server(s) on which the operating system resides.
As an option, Customer may elect to contract for Extended Services for Operating System Management Services (as defined below) which provide support for direct attached storage device(s). Extended Services for Operating System Management Services include: (i) the configuration of the direct attached storage; and (ii) the installation of the connection between the server(s) and the direct attached storage.
a.Operating System Management Standard Services. SunGard shall provide Operating System Management Standard Services for the number of servers set forth in the Schedule. Operating System Management Standard Services includes Advanced Monitoring Services — Operating System (as defined herein) and as requested by Customer and in accordance with Customer’s written instructions: (i) the initial base operating system build on the server; (ii) operating system patch maintenance and reporting; (iii) resolution of detected operating system failures; (iv) Hardware Installation Services (as defined herein); (v) Equipment Management Services (as defined herein); (vi) configuration of operating system level backups; and (vii) tracking of physical inventory and installed patches for the servers/devices under contract with SunGard. In order for SunGard to provide Operating System Management Standard Services, Customer shall provide SunGard with ROOT or ADMIN security access.
b.Operating System Management Advanced Services. SunGard shall provide Operating System Management Advanced Services for the number of servers and partitions set forth in the Schedule. Operating System Management Advanced Services include: (i) the initial operating system build on the server; (ii) Advanced Monitoring Services — Operating System (as defined herein); (iii) operating system patch maintenance, if available from the vendor, and upon Customer request; (iv) resolution of detected operating system failures; (v) Hardware Installation Services (as defined herein); (vi) Equipment Management Services (as defined herein); (vii) operating system configuration changes upon Customer request; (viii) configuration of operating system level backups; (ix) tracking of physical inventory and installed patches for the managed servers; and (x) management of ROOT or ADMIN security access. Customer must provide SunGard with exclusive control of root security access to be eligible for the Service Level Commitment specified in Section J. In order for SunGard to provide Operating System Management Advanced Services, Customer shall provide SunGard with ROOT or ADMIN security access.
c.Operating System Management Enterprise Services.SunGard shall provide Operating System Management Enterprise Services for the number of enterprise class servers and partitions set forth in the Schedule. Enterprise class servers are servers that are configured with a SunGard-supported clustering technology and/or servers capable of running multiple OS instances on one hardware platform. OS instances are isolated from each other through logical (software/firmware) and/or physical (hardware) partitioning. Operating System Management Enterprise Services include: (i) Operating System Management Advanced Services; (ii) management of the separate partitions on the server; and (iii) management of SunGard-supported clustering technology as set forth in the Services Guide. In order for SunGard to provide Operating System Management Enterprise Services, Customer may be required to provide the appropriate management console (hardware and software) to manage the servers with logical and/or physical partitions.
5. Application Services.For all Services listed in this Section, Customer shall place Customer-provided Equipment and Customer-provided Software under a valid maintenance
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Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
contract with the original equipment/software manufacturer for 24x7x365 support with four (4) hour onsite response time. In the event that Customer elects to contract for an application license under SunGard’s Software Licensing Services (as defined herein), SunGard shall provide a valid maintenance contract for the application license with the original software manufacturer. If Customer elects to contract for maintenance services with a vendor other than the original software vendor, Customer is responsible for all issues arising as a result thereof and associated obligations. In order to be eligible for Application Services, Customer must contract for Operating System Management Advanced or Enterprise Services, Data Back-up Services (as defined herein) or Vaulting Services — Restoration Support Option (as defined herein), and provide a minimum of two (2) dedicated network interfaces per physical server for connectivity to SunGard’s backup and management networks.
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b.Managed Database Services.SunGard shall provide Managed Database Services for the number of servers and instances set forth in the Schedule. Managed Database Services include: (i) Advanced Monitoring Services — Database (defined herein); (ii) the initial database build on the server; (iii) database software patch maintenance and tracking including one (1) version upgrade per contract year, if available from the database vendor, and upon Customer request; (iv) resolution of detected database failures; (v) table compaction or reorganization upon Customer request; (vi) database configuration changes upon Customer request; and (vii) management of database security access in accordance with Customer-provided written specifications. In addition to the specific Services defined above for Managed Database Services, if Customer also contracts with SunGard for Data Back-up Services, SunGard will define and implement database backup and restore methodology.
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f.Application Support — System Utility Services.SunGard shall provide Application Support — System Utility Services for the application(s) set forth in the Schedule. Application Support — System Utility Services include: (i) installation of releases, maintenance uplifts and patches upon Customer request; (ii) one (1) version upgrade per contract year, if available from utility software vendor and upon Customer request; (iii) resolution of detected utility software failures reported by Customer or detected by SunGard; (iv) utility software configuration changes upon Customer request; and (v) management of ROOT security access, if applicable to the utility. This Service is only available for servers under contract with SunGard for Server Services (as defined herein) and utility applications currently supported by SunGard as set forth in the Services Guide.
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C. NETWORK SERVICES
1.Network services include those network services and Internet Access Services (as defined below) set forth in the Schedule and as described below (“Network Services”). Network Services are only available to a customer who has subscribed to other Service(s) under this Exhibit. The Network Services set forth in the Schedule shall be made available to Customer on an exclusive, 24-hour a day, 7-days per week basis (excluding downtime attributable to previously scheduled routine and preventative maintenance). All circuits will be connected between the entry point on the SunGard network, as designated and coordinated by SunGard (“Point of Presence”), and the Designated SunGard Facility set forth in the Schedule. If selected on a Schedule, SunGard shall provide connectivity between the Customer location set forth in the Schedule to the Point of Presence.
2.Internet access services provide Customer with access to the Internet from the Designated SunGard Facility set forth in the Schedule (“Internet Access Services”). The Internet is not owned, operated or managed by, or in any way affiliated with, SunGard or any of SunGard’s affiliates. The Internet is an international computer network of both Federal and non-Federal inter-operable packet switched data networks. SunGard cannot and does not guarantee that the Internet Access Services will provide Internet access that is sufficient to meet Customer’s needs. Customer agrees that its use of the Internet is solely at its own risk and is subject to all applicable local, state, national and international laws and regulations (“Applicable Laws”). Customer represents and warrants that it will comply with all Applicable Laws in its use of the Internet Access Services.
3.Customer hereby acknowledges receipt of SunGard’s Network Policies and agrees to comply with such Policies at all times while utilizing the Network Services. Customer acknowledges that SunGard may from time-to-time revise its Network Policies, and any revisions will be communicated to Customer by posting on the Portal or via email notification. Customer also acknowledges that a breach of any of the Network Policies may result in the termination of the Network Services if any such breach is not cured within twenty-four (24) hours of SunGard’s written notice of such breach to Customer. SunGard shall have no liability to Customer for any restriction or termination of the Network Services pursuant to Customer’s violation of the Network Policies.
4.Network addresses assigned from a SunGard IP network block are non-portable. Network space allocated to Customer by SunGard must be returned to SunGard in the event Customer discontinues Internet Access Services as defined in this Exhibit for any reason, or upon expiration or cancellation of the Schedule.
5. Managed Internet Access Services.Managed Internet Access Services provide Customer with a dedicated IP connection of Committed Bandwidth Tier Level (as defined in the Schedule) as selected by Customer. Customer can contract to burst above the selected Committed Bandwidth Tier Level up to the Burstable Limit set forth in the Schedule (“Incremental Burstable Limit”), subject to available bandwidth on SunGard’s network. Customer’s selected Committed Bandwidth Tier Level as well as the associated Incremental Burstable Usage Fees are specified in the Schedule. Customer’s monthly billing is based on the Committed Bandwidth Tier Level and the actual level of sustained burstable usage (“Burstable Usage”). An Incremental Burstable Usage Fee will be charged for each Mbp exceeding the contracted Committed Bandwidth Tier Level. All Incremental Burstable Usage Fees are invoiced monthly in arrears. Customer’s Burstable Usage level is determined by traffic samples taken every five (5) minutes over the course of a month. The traffic samples are ranked from highest to lowest with the top five-percent (5%) discarded to account for temporary traffic bursts. The level at which ninety-five (95%) of the samples fall, will be the Customer’s Burstable Usage for that month and will determine the Customer’s total Incremental Burstable Usage Fees. Burstable Usage will be determined based upon Customer’s utilization data as maintained by
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Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
SunGard. In addition, Managed Internet Access Services include domain name administration services for up to ten (10) primary and/or secondary Customer domain(s).
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7. Dedicated Transport Services.SunGard shall provision third party telecommunications circuit(s) for Customer as set forth in the Schedule. Dedicated Transport Services include: (i) provisioning and installation of dedicated SunGard or third party circuit(s); and (ii) port connections from SunGard’s network distribution center to the Equipment situated in the Space.
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9. Managed Load Balancing Services.SunGard shall provide Managed Load Balancing Services for the number of load balancer devices within a single Designated SunGard Facility as set forth in the Schedule. Managed Load Balancing Services include: (i) Equipment Management Services (as defined herein); (ii) Standard Monitoring Services (as defined herein); (iii) load balancer policy configuration upon Customer request; (iv) resolution of load balancer problems; and (v) Hardware Installation Services (as defined herein).
10. Geographic Load Balancing Services.SunGard shall provide Geographic Load Balancing Services for the number of load balancer devices situated across multiple Designated SunGard Facilities as set forth in the Schedule. Geographic Load Balancing Services include: (i) Equipment Management (as defined herein); (ii) Standard Monitoring Services (as defined herein); (iii) load balancer policy configuration upon Customer request; (iv) resolution of load balancer problems; and (v) Hardware Installation Services as defined herein.
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D. STORAGE SERVICES
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1. SAN Services.SunGard shall provide storage area network services (“SAN Services”) for the amount of storage in gigabytes (“GB”) or terabytes (“TB”) and in association with the specific servers (target servers) set forth in the Schedule. SAN Services include: (i) initial installation of connectivity between the storage device and target server(s) each located at the Designated SunGard Facility; (ii) initial allocation and configuration of storage units to target servers in accordance with the SunGard-supplied and Customer completed design requirements form; and (iii) problem resolution related to storage connectivity and storage device. If Customer has contracted for Server Services (as defined herein) for the target servers, then SAN Services shall also include: (i) the initial installation and configuration of path management software, if applicable; (ii) installation of storage management software and related device driver software on the target servers; (iii) application of maintenance changes; and (iv) problem resolution of path management software, storage management software and related device driver software. Alteration of the storage allocations, the number of connections, the number of target servers, or hardware and software replacements, will require a modification or upgrade to the affected Schedule prior to any of these additional services being rendered by SunGard. SAN Services do not include installation or support for volume management or volume replication software.
a.Shared SAN Services.If SAN Services are provided through the SunGard shared SAN, the Services include: (i) monitoring and maintenance of SAN performance and capacity utilization; (ii) SAN capacity upgrades; and (iii) maintenance services for the storage device. Shared SAN Services products are referenced in the Schedule as Shared Primary Disk RAID protected as set forth in the Schedule. In order for SunGard to provide Shared SAN Services, Customer must provide server(s) that each contain two (2) SunGard supported Host Bus Adapters, as specified in the Services Guide.
b. Dedicated SAN Services.If SAN Services are provided through dedicated and/or Customer-provided storage devices, the Services shall include Equipment Management Services (as defined herein) for the associated storage devices. Customer acknowledges that the specifications for the design of the SAN must include IP network connectivity to the hardware, software and network components of the SAN in order for SunGard to provide Equipment Management Services to Customer through SunGard’s management network. In order for SunGard to provide Dedicated SAN Services for Customer-provided storage devices, Customer must: (i) provide SunGard with the appropriate system access and management console (hardware and software) to manage the storage devices; and (ii) contract with the original Equipment manufacturer for the installation and configuration of the storage devices.
Dedicated SAN Services are only available for storage and network devices, servers and adapters that are supported by SunGard, as specified in the Services Guide. SAN Services do not include installation or support for volume management or volume replication software.
2. Data Backup Services
a.Standard Data Backup Services.SunGard shall provide Standard Data Back-up Services for the amount of storage in association with the specific servers (at least one backup agent is required for each target server) as set forth in the Schedule. Standard Data Back-up Services include: (i) initial connectivity between backup network and target servers; (ii) installation of backup agent software on target servers; (iii) configuration of daily backup schedules in accordance with Customer design requirements form; (iv) execution of daily backup schedules; (v) retention of file system data and/or daily database data as set forth in the Schedule; (vi) weekly off-site rotation of media; (vii) file restore from media upon Customer request; and (viii) modification(s) to the backup schedule upon Customer request. This Service does not include the definition or the implementation of any backup and/or restoration methodology to be utilized for the database(s).
b.Advanced Data Backup Services.SunGard shall provide Advanced Data Backup Services for the amount of storage and in association with the specific servers (at least one backup agent is required for each target server) as set forth in the Schedule. Advanced Data Backup Services include: (i) initial connectivity between backup network and target servers; (ii) installation of backup agent software on target servers; (iii) configuration of daily backup schedules in accordance with Customer design requirements form; (iv) execution of daily backup schedules; (v) retention of file system data and/or daily database data (one on-site and one off-site) as set forth in the Schedule; (vi) daily off-site rotation of media; (vii) file restore from media upon Customer request; and (viii) modifications to the backup schedule upon Customer request. This Service does not include the definition or the implementation of any backup and/or restoration methodology to be utilized for the database(s).
c.General Provisions Applicable to Data Backup Services. SunGard will use commercially reasonable efforts to schedule backups within the Customer identified backup window(s).
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Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
SunGard cannot guarantee that backup schedule(s) will be completed within Customer’s requested backup window(s) as backup times are dependent on the number of files and the quantity of data to transfer. If backup schedules cannot be completed during Customer’s requested backup window, a customized solution may be required. A customized solution will require a modification to the Schedule and a detailed statement of work identifying any additional hardware, software and service requirements. Customer must provide a minimum of two (2) dedicated network interfaces per target server for connectivity to the backup and SunGard management networks. Customer agrees to provide SunGard with administrative access to all target servers requiring Data Backup Services to facilitate issue and/or problem resolution.
The Schedule will define Customer’s committed storage amount in GB or tapes and the additional charge to be assessed for each GB or tape used by Customer in excess of the contracted committed storage GB capacity or tape quantity.
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F. SECURITY SERVICES
1. Managed Firewall & VPN Services.SunGard shall provide Managed Firewall Services for the number of firewalls set forth in the Schedule and five (5) Virtual Private Network (VPN) tunnels for each firewall (site to site VPN or client VPN) or connectivity support to Customer managed or SunGard managed compatible authentication device. Managed Firewall & VPN Services include: (i) Equipment Management Services (as defined herein); (ii) Standard Monitoring Services (as defined herein); (iii) firewall configuration based on Customer’s written specifications; (iv) resolution of firewall problems; (v) Hardware Installation Services (as defined herein); (vi) LAN Services (as defined herein) for a SunGard-provided production switch; and (vii) firewall log reports available to Customer at the Portal and are retained for 90 days. If Customer subscribes to dual firewalls per device (i.e. router, server etc.), SunGard shall provide dual firewall devices configured to provide redundancy should one of the firewalls fail to operate. Customer is responsible for software management and configuration of Customer managed VPN end-point. Customer acknowledges that SunGard does not monitor VPN persistence.
2. Managed Intrusion Protection Services
a.Managed Intrusion Detection Services(IDS). SunGard shall provide IDS as set forth in the Schedule as Network IDS and/or Host IDS. For Network IDS, the Services are provided for the number of IDS appliances and network segments as set forth in the Schedule. If multiple network segments are to be monitored, the network architecture must support VLAN tagging or one Ethernet interface per network segment being monitored. For Host IDS, the Services are provided for the number of servers as set forth in the Schedule. IDS includes: (i) Hardware Installation Services (as defined herein); (ii) installation and configuration of IDS software; (iii) configuration of IDS rules; (iv) resolution of IDS configuration problems; (v) signature file, appliance and management; (vi) 24 x 7 x 365 intrusion monitoring and notification to Customer of detected alerts based upon manufacturer or Customer approved settings; and (vii) intrusion reports available to Customer at the Portal and retained for 90 days.
b.Managed Intrusion Prevention Services(IPS). SunGard shall provide IPS as Network IPS and/or Host IPS for the number of appliances or servers set forth in the Schedule. IPS includes: (i) Hardware Installation Services (as defined herein; (ii) installation and configuration of IPS software; (iii) network traffic monitoring 24x7x365; (iv) detection of attempted intrusions and server misuse consisting of traffic abnormalities and/or pre-defined known attack signatures; (v) a monthly report of IPS incidents; and (vi) configuration of IPS rules. For in-line IPS solutions where the network traffic passes directly through the appliance, the appliance will be configured to monitor and automatically filter attacks based on a predefined list of threats and vulnerabilities. Customer understands and acknowledges that the device(s) utilized to provide the IPS make decisions to drop packets based upon Customer’s selected criteria and that a packet may generate a “false positive” and be dropped, possibly disrupting valid network activity.
3. Managed Vulnerability Protection Services.SunGard shall provide Managed Vulnerability Protection Services for the number of IP addresses set forth in the Schedule. Managed Vulnerability Protection Services are delivered over the Internet to scrutinize Customer’s Internet facing devices for security vulnerabilities. Managed Vulnerability Protection Services: (i) identify visible perimeter and/or network devices and map underlying Customer network devices that are accessible from the Internet and provide information about each device; (ii) characterize devices as access gateways, routers, or other types of equipment, by machine type and operating system; (iii) provide information, such as machine names, and where possible, identifying information about private networks and intranets; and (iv) identify common TCP/IP services, such as HTTP servers, SMTP servers, and telnet or SSH servers. Scans can be conducted either monthly or quarterly (as set forth in the Schedule) on a date that is mutually agreed to between the parties. Customer will be provided with a report which includes a summary of the security of the network devices, including summary information about the scan, general network information, specific host information, a list of detected vulnerabilities and an executive overview that provides a global view of the security level of all networks and IP addresses.
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G. MONITORING SERVICES
Monitoring Services include: (i) the implementation by SunGard of monitoring rules provided by Customer for the requested device(s), database(s), operating system(s) or website(s); (ii) 24x7x365 monitoring of alerts generated by the monitoring system; and (iii) notification to Customer of monitoring alerts that may include a service impacting event (as defined in the Services Guide). Monitoring Services are provided within a measurement period (“Polling Period”) whereby the monitoring system detects resource availability and resource utilization. There may be occasions when monitored resources reset completely within the Polling Period and therefore may not be monitored during such reset period. In the event there is more than one instance or partition of an operating system or application running on a monitored device or server, then the SunGard monitoring “unit” is per instance instead of per device or server. Monitoring Services also
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Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
include the provision of the switch as set forth on the applicable Schedule.
1. Standard Monitoring Services.SunGard shall provide Standard Monitoring Services for the number of devices and servers set forth in the Schedule. Standard Monitoring Services include the detection of the failure of a device(s) and/or server(s) to respond. The frequency of the polling of devices and/or server(s) will be every five (5) minutes. Standard Monitoring Services also include a TCP/UDP port monitor, as applicable, to verify that a connection can be made to the network port.
2. Advanced Monitoring Services — Database.SunGard shall provide Advanced Monitoring Services — Database for the number of servers and the number of databases set forth in the Schedule. Advanced Monitoring Services — Database include: (i) the provision and installation of a monitoring agent; and (ii) the monitoring of table-space utilization, related logs and file systems. The frequency of polling will be every five (5) minutes.
3. Advanced Monitoring Services — Operating System. SunGard shall provide Advanced Monitoring Services — Operating System for the number of servers and the number of operating system partitions set forth in the Schedule. Advanced Monitoring Services — Operating System include: (i) the provision and installation of a monitoring agent; (ii) the monitoring of CPU, memory, and system disk utilization; and (iii) the monitoring of IP port availability. The frequency of polling will be every five (5) minutes.
4. Advanced Monitoring Services — Web.SunGard shall provide Advanced Monitoring Services — Web for the number of servers set forth in the Schedule. Advanced Monitoring Services — Web include: (i) provisioning and installation of a monitoring agent; (ii) monitoring of Customer specified web server specific services or processes (i.e. DLLhost, InetInfo, and www service); (iii) system level web server logs; (iv) web server performance metrics, such as users and connections; and (v) the detection of HTTP error codes as described in the Services Guide and URL failure to respond to an HTTP GET request within a specified threshold. The frequency of the polling of URLs will be every five (5) minutes.
5. Advanced Monitoring Services — Device.SunGard shall provide Advanced Monitoring Services — Device for the number of devices set forth in the Schedule. Advanced Monitoring Services — Device include: (i) the monitoring of device CPU, memory, physical hardware and environmental components (i.e. temperature, voltage, power supply failure, fan failure); and (ii) Wide Area Network interface utilization, as applicable. The frequency of the polling will be every five (5) minutes.
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7. Web Transaction Monitoring Services.SunGard shall provide Web Transaction Monitoring Services for the number of transactions set forth in the Schedule. Web Transaction Monitoring Services include: (i) the development of a specific URL sequence as a synthetic user; and (ii) the detection of transaction failures as developed. Transactions may include up to five (5) discrete steps. The polling frequency of the actual transaction(s) will be determined during transaction development. Customer agrees to provide a technical contact to assist SunGard in the development of each transaction.
H. PROBLEM RESOLUTION
1. Detection, Notification and Diagnosis.Within fifteen (15) minutes of SunGard’s determination that there has been a Service impacting event, SunGard will notify Customer of the problem (unless SunGard was first notified by Customer). If the service impacting event is associated with a device(s) for which Customer has contracted with SunGard for Equipment Management Services, then SunGard shall immediately engage then-available technical support to assist in problem diagnosis. If the appropriate technical support resource has not been assigned to problem analysis within fifteen (15) minutes of problem determination, escalation to the next level of Technical Services Management (as defined in the Services Guide) occurs, culminating with escalation of the problem to the Vice President of Operations at the Designated SunGard Facility in accordance with SunGard’s standard operational procedures.
2. Resolution of Service Impacting Event.As necessary, following the detection and notification to Customer of a Service impacting event associated with a device for which Customer has contracted with SunGard for Equipment Management Services, if the problem has resulted in a Service outage, SunGard will continue to escalate the problem internally until the Service is restored. If the Service is not restored within thirty (30) minutes of problem determination, escalation to the Technical Services Manager and Customer Service occurs. If the Service is not then restored within sixty (60) minutes, escalation to the Technical Services Director occurs. If the Service is not then restored within ninety (90) minutes, escalation to Vice President of Operations occurs. SunGard shall provide continuous support to Customer in accordance with the terms of the Master Agreement for problem resolution until the Service has been restored. As necessary, SunGard shall coordinate with the applicable maintenance vendor to facilitate resolution of the issue.
I. EXPIRATION/CANCELLATION OF SCHEDULE AND TRANSITION SERVICES
1.Upon expiration/cancellation of a Schedule to this Exhibit for any reason other than due to an uncured material breach by Customer, and provided Customer is not in default of its payment obligations under the applicable Schedule, SunGard shall provide Customer with reasonable transition services and information and documentation that reasonably may be needed by Customer in connection with the orderly and expeditious transition of the Services (“Transition Services”). Customer shall have thirty (30) days to cure any default due to payment obligations under the applicable Schedule in order to receive the Transition Services. The Transition Services shall be provided for a period of up to one hundred twenty (120) days, provided Customer continues to make timely payments of the Monthly Fees attributable to all Schedules to the Master Agreement.
Upon the expiration/cancellation of a Schedule to this Exhibit, or as the case may be after the provision of reasonable Transition Services by SunGard to Customer, for any reason SunGard shall delete all Customer data residing on SunGard-provided Equipment.
J. SERVICE LEVEL COMMITMENTS
The following subsections define the criteria for the Services and the compensation in the form of credit(s) for which Customer is eligible in the event that the defined criteria was not met for the Service.
1. Internet Access Availability
7
| • | Guarantee — During any calendar month, the Internet protocol network utilized to access the Internet from the Designated SunGard Facility will have availability of 99.99% for Customer to transmit to, and receive information from, the Internet. | |
| • | Definition — “Internet availability” is defined as the ability to route a data packet from Customer’s environment located within a Cabinet or Suite in the Space, to the egress point to the public Internet. | |
| • | Measurement — SunGard will measure availability of the SunGard Internet protocol network by computing the total number of successful performance measurements between agents as a percentage of the total number of attempts between agents. “Agents” are defined as passive devices that are located in every SunGard hosting facility. Network error conditions are considered “failed attempts”. Measurements will be posted to the Portal. | |
| • | Remedy — If SunGard fails to provide Internet access in accordance with the Guarantee, then Customer is entitled to a credit of one (1) day’s Monthly Fee for the Services on the applicable Schedule. If Customer exceeds eight (8) or more cumulative full hours of unavailability during a calendar month, Customer shall be issued a total credit of one (1) month’s Monthly Fee under the applicable Schedule for the calendar month in which SunGard failed to meet the Internet Access Availability Guarantee. |
2. Latency
| • | Guarantee — The average round trip latency between any two agents within SunGard’s Internet protocol network will not exceed an average of 50 milliseconds in North America during any calendar month. | |
| • | Definition — Latency is defined as the round trip time it takes for a data packet to travel between two agents within SunGard’s Internet protocol network. “Agents” are defined as passive devices that are located in every SunGard hosting facility. Each Agent is placed on that hosting facility’s network infrastructure to take measurements across the SunGard Internet protocol network. | |
| • | Measurement — SunGard will measure latency by averaging sample measurements taken during the prior calendar month between agents on SunGard’s Internet protocol network. SunGard records the packet measurement based on the time in milliseconds that it takes to send a data packet and to receive the acknowledgement of that data packet. Measurements will be posted to the Portal. | |
| • | Remedy — If SunGard’s average monthly latency is greater than the Guarantee above, then Customer is entitled to a credit of one (1) day’s Monthly Fee for the applicable Schedule for the calendar month in which SunGard failed to meet the average trip Latency Guarantee. |
3. Packet Delivery
| • | Guarantee — A monthly average success rate of 99.9% for packet delivery through SunGard’s Internet protocol network. | |
| • | Definition — “Unsuccessful delivery” is defined as packets dropped due to transmission errors or router overload before exiting the SunGard Internet protocol network. | |
| • | Measurement — SunGard shall measure packet loss by the number of re-transmitted data packet requests. All data packet retransmits are assumed to be due to a lost packet. Daily measurements will be summed and then divided by thirty (30) to calculate a monthly average. Measurements will be posted to the Portal. | |
| • | Remedy — If SunGard’s average successful monthly packet delivery is less than 99.9%, then Customer is entitled to a credit of one (1) day’s Monthly Fee for the applicable Schedule for the calendar month in which SunGard failed to meet the monthly Packet Delivery Guarantee. |
4. Power
| • | Guarantee — 100% power availability in the Designated SunGard Facility. | |
| • | Definition — Provision of uninterrupted power to the Designated SunGard Facility infrastructure and to the Equipment located within the Designated SunGard Facility based upon the capacity specified in the Schedule. Only Customers who contract for a B-Side Circuit and have Customer-provided Equipment that supports multiple redundant power feeds or who have integrated a static switch to provide redundancy to a single fed piece of Customer-provided Equipment qualify for the Guarantee. The Service Level Commitment is not available to Customers who have contracted for only A-Side Power Circuit(s) (without a B-Side Circuit(s)) or if Customer’s total utilization of an A & B Side pair exceeds 80% of the capacity of one of the circuits in the pair. | |
| • | Measurement — Power availability is measured as the unscheduled time that the SunGard-provided dual power feeds were simultaneously unavailable. | |
| • | Remedy — If power is unavailable as a result of SunGard’s actions or inactions, such that Customer’s Services are interrupted, then Customer is entitled to a credit of one (1) day’s Monthly Fee for the applicable Schedule for each incident. If Customer exceeds eight (8) or more cumulative full hours of unavailability during a calendar month, Customer shall be issued a total credit of one (1) month’s Monthly Fee under the applicable Schedule for the calendar month in which SunGard failed to meet the power availability Guarantee. |
5. System Availability
| • | Guarantee — The servers for which Customer has contracted with SunGard for Operating System Management Advanced Services or Operating System Management Enterprise Services shall be operational and available to Customer 99.9% of the time during the Agreed Term of the Schedule (“System Availability”), if the server(s) are configured with a hardware RAID controller, dual power supplies and Customer subscribes to Power Infrastructure B-Side Upgrade. As used herein, “System” is defined to mean the Equipment and the operating system situated thereon and does not include the network infrastructure connected to the server. Additionally, in the event Customer retains ROOT or ADMIN privileges, or equivalent, SunGard and Customer shall work together to determine the cause of the service-impacting event and the Service Level Commitment will not be applicable to the event. | |
| • | Measurement — System Availability will be measured utilizing internal monitoring software to measure the availability of Customer’s System. The System shall be deemed available if the System is responsive to standard ICMP or SNMP requests. | |
| • | Remedy — If during any three (3) month period, System Availability for any two (2) months falls below the |
8
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
applicable percentage as an average for the month, SunGard will credit Customer ten percent (10%) of the then current Monthly Fee for the affected Schedule, for each of the two months during which the System Availability Guarantee was not met.
6. Network Hardware Availability
| • | Guarantee — Network hardware components which are provided by SunGard to facilitate LAN Services, Managed Firewall Services, Managed Intrusion Protection Services, Managed Load Balancing Services, or Geographic Load Balancing Services which are configured in a redundant configuration, wherein all single points of failure have been eliminated, shall be operational and available to Customer 99.95% of the time during the Agreed Term of the Schedule. Notwithstanding the foregoing, for all network hardware provided by SunGard in which the hardware is configured in a single architecture, SunGard commits that associated network hardware shall be operational and available to Customer 99.5% of the time during the Agreed Term of the Schedule. | |
| • | Measurement — SunGard shall monitor the network hardware and the network devices shall be polled every five (5) minutes via a standard ICMP or SNMP poll. | |
| • | Remedy — If during any three (3) month period, network hardware availability for any two (2) months falls below the applicable Guarantee percentage as an average for the month, SunGard will credit Customer ten percent (10%) of the then current Monthly Fee for the affected Schedule, for each of the two months during which the Network Hardware Availability Guarantee was not met. |
*
8. *
9. Notification
| • | Guarantee — SunGard shall notify Customer, in the manner as set forth herein and in SunGard’s Services Guide within fifteen (15) minutes after SunGard has determined that Customer’s Equipment/Services are unavailable. | |
| • | Remedy — SunGard shall credit Customer one (1) day’s Monthly Fee for the applicable Schedule for each incident during the prior calendar month in which SunGard fails to meet the Notification Guarantee. In the event that Customer notifies SunGard regarding unavailability of Equipment/Services, this remedy is not operational. |
10. *
11. *
12. *
13. *
14. Remedies General
If SunGard fails to meet a defined Service Level during the Agreed Term of the Schedule, as Customer’s sole monetary remedy, Customer shall be entitled to receive the credits as reflected herein by Service Level. Failure to meet the same Service Level three (3) times in any contract year shall entitle Customer to terminate the applicable Schedule upon ninety (90) days prior written notice to SunGard. In no event will the total credits for any occurrence exceed Customer’s then current Monthly Fee for the applicable Schedule.
SunGard shall not be responsible for the failure to meet a Service Level if the failure is caused by: (a) the breach of the Master Agreement or this Exhibit by Customer; (b) the negligence or intentional acts or omissions of Customer or its employees or agents; (c) Equipment malfunction (provided said Equipment has been maintained by SunGard in accordance with the terms of the Master Agreement); or (d) the failure of any Software to perform in accordance with its specifications (“Software Failure”) and such Software Failure is not caused by SunGard’s negligence, willful misconduct or failure to maintain a maintenance contract on such software. Further, any scheduled maintenance (including upgrades, repair or component replacement or scheduled backups) or other mutually agreed-to downtime shall not be included in calculating any Guarantee has been met. In addition, the Guarantees do not include any downtime as a result of: (a) Customer-made changes to applications or data; (b) Customer retaining ROOT or ADMIN privileges; (c) Customer requiring SunGard to maintain, or continue to run unsupported Software or hardware releases; (d) Software or hardware failures resulting from the absence of an update, patch, configuration change, maintenance change or repair recommended by SunGard but rejected or delayed by Customer for any reason; or (e) Customer retaining access control to the network and/or security device(s) for which SunGard is providing the Services.
15. Software Failure.Customer acknowledges that SunGard is not the developer of any of the Software product(s) used to provide the Services hereunder. In the event of a Software Failure, if in the reasonable discretion of SunGard and Customer, such Software Failure cannot be cured and if, at the time of such failure no other functionally equivalent Software compatible with the Equipment is commercially available, Customer shall have the right to immediately terminate the applicable Schedule without penalty to either party. SunGard shall not be liable to Customer or any third party for any damages with respect to such termination.
All trademarks and registered trademarks are the property of their respective owners.
©2009 SunGard Availability Services LP, all rights reserved
MIT0809
9
CONSULTING SERVICES EXHIBIT
TO THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
Dated December 1, 2009
TO THE MASTER AGREEMENT FOR U.S. AVAILABILITY SERVICES
Dated December 1, 2009
1. DESCRIPTION OF SERVICES
Each Schedule to this Services Exhibit specifies the consulting and assessment services to be provided by SunGard to Customer and the deliverables as more specifically described in the Schedule and all related Statements of Work incorporated by reference therein (“Consulting Services”). All Consulting Services to be provided by SunGard shall be performed by qualified personnel in accordance with professional standards, and all Consulting Services provided, and documents and reports delivered, by SunGard shall conform to the requirements of this Exhibit, the Schedule and the related Statement of Work. Notwithstanding anything to the contrary herein, SunGard reserves the right to subcontract the Consulting Services to a third party without the prior written consent of Customer.
Except as otherwise stated in the Consulting Services Schedule or related Statement of Work, the parties intend that all Consulting Services to be provided to Customer under this Exhibit shall be completed within one year after the Effective Date of the Schedule or the date the Schedule is signed by SunGard, whichever is later. Customer acknowledges and agrees that SunGard’s fees are based on SunGard performing the Consulting Services within the specified time period set forth in the applicable Schedule or Statement of Work and that SunGard allocates and commits resources to performing the Consulting Services upon SunGard’s execution of the Schedule. Customer understands that its delay in providing SunGard access to information or in the performance of Customer’s responsibilities as noted in the Statement of Work may result in additional costs and delay the completion of the Consulting Services. Customer agrees to pay SunGard the additional costs associated with Customer’s delay in performing its responsibilities. Any deficiencies, as determined by generally accepted professional standards, shall be promptly reported by Customer to SunGard and, in any event, within 30 days after receipt of the Consulting Services involved. SunGard will correct such deficiencies in its Consulting Services within a mutually agreeable time period.
2. PERSONNEL
All SunGard personnel, when working at Customer’s premises, will conduct themselves in a professional manner and will use commercially reasonable efforts to minimize disruptions to Customer’s business. SunGard will retain full responsibility for its own personnel, including payment of compensation and payroll taxes, provision of benefits, and maintenance of workers’ compensation and other required insurance. SunGard and Customer also agree that for one (1) year following completion of the applicable Consulting Services neither party will interview for employment purposes or employ current employees of the other that were directly involved the applicable Consulting Services. Nothing contained herein, however, will limit either party’s right to hire any employee of the other party who responds to a general solicitation for employment not targeted at such employee or other general advertisements or employment initiated exclusively by the employee.
3. CUSTOMER’S RESPONSIBILITIES
Material to SunGard’s obligation to provide Consulting Services is Customer’s obligation to promptly provide SunGard, as and when requested, all information, data and other materials concerning Customer’s personnel, operations and facilities and other relevant aspects of Customer’s business, to the extent required by SunGard to properly perform the Consulting Services. All such information, data and materials provided to SunGard by any of Customer’s personnel will be accurate, current and complete, and may be relied upon by SunGard in performing the Consulting Services.
Customer will be responsible for preparing and maintaining backup or duplicate copies of all such information, data and materials, and SunGard will have no liability for any loss or damage resulting from Customer’s failure to do so.
Further, Customer will provide SunGard access to Customer’s offices and facilities at mutually agreeable times, make available to SunGard experienced personnel having knowledge of Customer’s operations and other relevant aspects of Customer’s business, and cooperate with SunGard in all respects reasonably necessary to allow SunGard to perform the Consulting Services.
4. FEES AND EXPENSES
SunGard will invoice Customer for the Consulting Services in the manner set forth in the Schedule.
Except as otherwise set forth on the Schedule, Customer agrees to reimburse SunGard for all travel, lodging, food and incidental actual costs incurred by SunGard in providing the Consulting Services to Customer provided that SunGard complies with the Customer’s applicable travel and expense policy. SunGard will issue monthly invoices to Customer as the expenses are incurred.
5. CONFIDENTIALITY
Customer acknowledges that SunGard’s property includes trade secrets, confidential information and proprietary property of SunGard, having great commercial value to SunGard, and that the development and design of SunGard’s property has involved and will involve the expenditure by SunGard of substantial amounts of time and money. All items of SunGard’s property are being provided by SunGard to Customer on a strictly confidential basis and only for in-house use for the purpose of allowing Customer to establish, maintain and implement business recovery and other plans and procedures. Except with the prior written consent of SunGard, Customer will not, nor will it permit any other entity or individual to (a) use any SunGard property for any purpose not authorized by the Master Agreement, (b) refer to or otherwise use any SunGard property as part of any effort to provide similar Services to any entity or individual, or (c) remove, erase or tamper with any copyright or other proprietary notice of SunGard printed or stamped on, affixed to, or encoded or recorded in any SunGard property.
6. OWNERSHIP
Neither party will gain by virtue of this Exhibit any rights of ownership of copyrights, patents, trade secrets, trademarks or any other intellectual property rights owned by the other. SunGard will retain exclusive ownership in all materials, documents, software or other programming documentation created hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed under this Exhibit (“Deliverables”). Customer will retain exclusive ownership in all of its data included in any Deliverables. Except for any SunGard software products which shall be licensed separately, SunGard grants Customer a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely for Customer’s internal use.
7. TERMINATION
Termination of the Consulting Services under a Schedule to this Exhibit for any reason will not relieve Customer of liability for all fees payable and expenses incurred. If Customer unilaterally decides it no longer requires the Consulting Services under a Schedule to this Exhibit, Customer acknowledges and agrees to pay to SunGard, together with written notice of termination, an amount equal to the present value (calculated using an annual discount rate equal to the then current prime rate published inThe Wall Street Journal) of all remaining fees due under the applicable Schedule(s), and Customer shall remain liable for any reimbursable expenses incurred by SunGard before termination. If Customer breaches any of its obligations under the Master Agreement in any material respect, then, in addition to SunGard’s right to terminate the Master Agreement and any other rights and remedies that SunGard may have, SunGard may suspend performance of all Consulting Services under a Schedule to this Exhibit until the default is cured. If Customer breaches any of its
material obligations and responsibilities under any Schedule to this Exhibit and/or related Statement of Work and Customer’s breach is not cured within thirty (30) days after receiving written notice from SunGard, SunGard may, at its election, (a) exercise any remedy for such breach set forth elsewhere in the Master Agreement; (b) pursue any remedy available at law or in equity, (c) terminate the Schedule to this Exhibit, and (d) suspend or discontinue Consulting Services or performance under the applicable Schedule to this Exhibit.
8. MISCELLANEOUS
Customer will comply with the general obligations specified in the Master Agreement together with any specific Customer obligations described in the Statement of Work, in a timely manner. Customer acknowledges that SunGard’s ability to deliver the Consulting Services is dependent upon Customer’s full and timely cooperation with SunGard, as well as the accuracy and completeness of any information and data Customer provides to SunGard.
© 2009 SunGard Availability Services LP, all rights reserved
CSE0809
Addendum to the Master Agreement for U.S. Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated March 31, 2007
Page 1 of 1
The Master Agreement for U.S. Availability Services, having the above date, between SunGard Availability Services LP (“SunGard”) and the Customer named below (“Master Agreement”) is amended effectiveDecember 1, 2009, as follows:
Notwithstanding anything to the contrary, in consideration of Customer’s execution of the Master Agreement and Schedule Number 3003703300 v. 1.0 for Managed IT Services and Schedule Number 3003735000 v. 1.0 for Consulting Services, all having a Commencement Date of December 1, 2009, SunGard agrees to replace and supersede in its entirety the Master Agreement for U.S. Availability Services having a Commencement Date of March 31, 2007, including all Schedules, Exhibits, Addenda and Amendments thereto, except for Schedule Number 20448 v. 1.0 for Managed IT Services (including any Addenda thereto) having a Commencement Date of July 1, 2007 which shall remain in effect from December 1, 2009 through January 31, 2010 at its current monthly fee.
By the signatures of their duly authorized representatives below, SunGard and Customer, intending to be legally bound, agree to all of the provisions of this Addendum and ratify the terms of the Master Agreement.
| SUNGARD AVAILABILITY SERVICES LP | CUSTOMER: ATHENAHEALTH, INC. | |||||||||
By: | /s/ Christopher Coleman | By: | /s/ Carl Byers | |||||||
| Print Name: Christopher Coleman | Print Name: Carl B. Byers | |||||||||
| Print Title: Vice President | Print Title: SVP & CFO | |||||||||
| Date Signed: 12/4/09 | Date Signed: December 1, 2009 | |||||||||
| QUOTE ID.:102519 |
THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL
Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.
Schedule Number 3003735000 v. 1.0
For Consulting Services Governed by the
Master Agreement For U.S Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
For Consulting Services Governed by the
Master Agreement For U.S Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 1 of 2
Schedule Effective Date: December 1, 2009
The following Services to be provided under this Schedule are described in the Statement of Work (“SOW”) Tech Recovery and Test Development & LDRPS 10 Software Configuration dated 11/16/2009 (ID 30018) which is incorporated herein by reference and made a part hereof:
| Service #1 | Tech Recovery Tests as described in the Tech Recovery and Test Development & LDRPS 10 Software Configuration for fixed fee of $ * , which is due and payable as follows. |
| # of Periods | Invoice | |||||||||||
| to be billed | Frequency | Amount | Billing Commencement | Details | ||||||||
| 12 | Quarterly | $ | * | December 1, 2009 | ||||||||
Reimbursable expenses (travel, lodging, food and incidental actual costs) will be billed on a monthly basis as the expenses are incurred.
| Service #2 | Tech Recovery test Plan Dev as described in the Tech Recovery and Test Development & LDRPS 10 Software Configuration for fixed fee of $ * , which is due and payable as follows. |
| # of Periods | Invoice | |||||||||||
| to be billed | Frequency | Amount | Billing Commencement | Details | ||||||||
| 1 | One-Time | $ | * | One Month Following Schedule Effective Date | ||||||||
| 1 | One-Time | $ | * | Two Months Following Schedule Effective Date | ||||||||
| 1 | One-Time | $ | * | Three Months Following Schedule Effective Date | ||||||||
| 1 | One-Time | $ | * | At Project Completion | ||||||||
Reimbursable expenses (travel, lodging, food and incidental actual costs) will be billed on a monthly basis as the expenses are incurred.
| Service #3 | LDRPS 10 Software Config as described in the Tech Recovery and Test Development & LDRPS 10 Software Configuration for fixed fee of $ * , which is due and payable as follows. |
| # of Periods | Invoice | |||||||||||
| to be billed | Frequency | Amount | Billing Commencement | Details | ||||||||
| 1 | One-Time | $ | * | Upon Schedule Effective Date | ||||||||
Reimbursable expenses (travel, lodging, food and incidental actual costs) will be billed on a monthly basis as the expenses are incurred.
By the signatures of their duly authorized representatives below, SunGard and Customer, intending to be legally bound, agree to all of the provisions of this Schedule and ratify the terms of the Master Agreement.
| SunGard Availability Services LP | CUSTOMER: ATHENAHEALTH | |||||||||
| By: | /s/ Christopher Coleman | By: | /s/ Carl Byers | |||||||
| Print Name: | Christopher Coleman | Print Name: | Carl Byers | |||||||
| Print Title: | Vice President | Print Title: | SVP & CFO | |||||||
| Date Signed: 12/4/09 | Date Signed: December 1, 2009 | |||||||||
| DOC ID: 3003735000 VER. 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: November 23, 2009 10:33:20 AM | |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL
Schedule Number 3003735000 v. 1.0
For Consulting Services Governed by the
Master Agreement For U.S Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
For Consulting Services Governed by the
Master Agreement For U.S Availability Services
Between
SunGard Availability Services LP and ATHENAHEALTH
Dated December 1, 2009
Page 2 of 2
This Schedule is not subject to auto-renewal.
CUSTOMER INFORMATION
| BILL TO ADDRESS: | 311 ARSENAL STREET WATERTOWN MA 02472 GEORGE SMITH | |
| NOTIFICATION ADDRESS: | 311 ARSENAL STREET WATERTOWN MA 02472 GEORGE SMITH |
| DOC ID: 3003735000 VER. 1.0 ACCOUNT NUMBER: 64256 QUOTE ID: 102519 PRINTED: November 23, 2009 10:33:20 AM | |
THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL