AGREEMENT NO. 060100
AGREEMENT made as of the fourteenth day of September 2000 by and between
ALICOMP, a division of ALICARE, Inc., with Corporate offices at 730 Broadway,
New York, New York 10003 and Infocrossing Inc. formerly known as Computer
Outsourcing Services, Inc. with offices at 2 Christie Heights, Leonia, NJ 07605
(hereinafter collectively referred to as "ALICOMP") on the one hand, and
Universal American Financial Corporation, with offices at 600 Courtland Street,
Orlando, Florida 32804 (hereinafter referred to as "UAFC") on the other hand.
WHEREAS ALICOMP is the owner of or otherwise in possession of and has the right
and ability to provide certain computer and data processing equipment and/or
services and;
WHEREAS UAFC is desirous of receiving data processing services from ALICOMP; and
WHEREAS ALICOMP is desirous of providing data processing services to UAFC; and
WHEREAS ALICOMP agrees, therefore, to provide UAFC the use of an IBM mainframe
computer, specific software and peripheral equipment as described in Schedules A
and B attached hereto; and
NOW THEREFORE in exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to be
bound as follows:
1. SERVICES
ALICOMP shall provide to UAFC and UAFC shall pay for data
processing services provided by ALICOMP in accordance with the
rates set forth in the attached Schedule A. Services other
than those set forth in the attached Schedules A and B shall
be provided by ALICOMP only upon the written amendment to this
Agreement, and shall be provided at ALICOMP's then published
rates or other rates to be mutually agreed upon.
2. MODE OF PAYMENT
(a) Fixed Monthly Fee invoice pursuant to Schedule A,
attached hereto, shall be invoiced 10 days prior to
the first day of each calendar month in which
services are rendered. Payment shall be due 15 days
from the date of the invoice. If the Date of First
Productive Use is anticipated to begin on the first
day of a calendar month, an invoice shall be sent 10
days prior to the anticipated Date of First
Productive Use. Payment shall be due 15 days from the
date of the invoice.
(b) If the Date of First Productive Use is not the first
day of a calendar month, ALICOMP shall send out its
first invoice 10 days prior to the anticipated Date
of First Productive Use. Payment shall be due 15 days
from the date
AGREEMENT NO. 060100 - continued
of the invoice. The Fixed Monthly Fee due under
Section 2 (a) for the calendar month immediately
following the calendar month in which the Date of
First Production Use occurs shall be pro rated to
take into account the number of days from the Date of
First Productive Use to the end of the calendar month
in which the Date of First Productive Use occurs. For
the purpose of calculating the appropriate per minute
rate for the first month herein, we shall use the
baseline per minute rate of $15.04 pursuant to
Schedule A attached herein. Any partial month that
occurs at the end of this Agreement shall be
calculated similarly.
(c) Any credits due to UAFC from the prior month shall
promptly be applied to the next Fixed Monthly Fees
invoice.
(d) Fees for services beyond those covered by the minimum
Fixed Monthly Fees as set forth in Schedule A shall
be billed by ALICOMP to UAFC mid-monthly after the
services have been provided once a month. Payment
shall be due 30 days from the date of the invoice.
(e) If an invoice is not paid timely by UAFC in
accordance with the above, UAFC shall be required to
and shall pay interest on the unpaid charges at .75%
per month, not to exceed the maximum interest
permitted by law from the date the payment was due.
(f) In the event that UAFC fails to pay any charges due
to ALICOMP within sixty (60) days after the date on
which such payment is due, ALICOMP, in its sole
discretion, may terminate the Agreement at any time
upon thirty (30) days written notice to UAFC,
provided that UAFC has not tendered such overdue
payment before the expiration of the thirty (30) day
notice period. No failure by ALICOMP to terminate the
Agreement immediately following the thirty (30) day
notice period shall constitute a waiver of its right
to terminate the Agreement at any time prior to
UAFC's tendering payment in full of any overdue
amounts.
3. CONFIDENTIALITY
3A. No party will divulge any information learned by it
concerning the other parties or their customers ("Confidential
Information") without the prior written consent of the
disclosing party unless the Confidential Information (i) is or
becomes publicly available through no wrongful act of the
recipient; (ii) was lawfully obtained from third parties which
are not obligated to protect its confidentially; (iii) was
previously known to the recipient without any obligation to
keep it confidential; (iv) was independently developed by the
recipient without reference to the Confidential Information;
or (v) is required to be disclosed pursuant to the law, court
order, regulatory agency or duly authorized subpoena, provided
that the recipient promptly notifies the disclosing party
prior to compliance with such process and makes diligent
efforts to limit such disclosure
2
AGREEMENT NO. 060100 - continued
to that which is reasonably necessary. Each party shall (i)
keep all information received from any other party strictly
confidential, (ii) use Confidential Information solely for the
purposes and in the manner set forth or to enforce this
Agreement, (iii) use the same degree of care with respect to
the Confidential Information of any other party as it requires
with respect to its own or any of its other customer's most
confidential information (but in no event less than a
reasonable standard of care), and (iv) institute the necessary
security policies, procedures and data file security
mechanisms to meet its obligations hereunder. ALICOMP will
establish and maintain safeguards against the destruction,
loss or alternation of UAFC Confidential Information in the
possession of ALICOMP.
3B. The parties shall only disclose Confidential Information
to those of its employees or agents who have a need to access
the Confidential Information in performance of the services
under this Agreement to access the Confidential Information
only for the performance for such services and each party
shall require each of its employees, partners, subcontractors,
independent contractors, or agents assigned to the performance
of duties pursuant to this Agreement, to observe these
confidentiality requirements.
3C. Any breach of confidentiality by ALICOMP, its employees,
partners, independent contractors, agents or representatives
shall be deemed a breach of the Agreement. Each party shall
provide the other party with prompt notice in the event that
it becomes aware of any breach or anticipated breach of any
provision of this section 3 by itself, its employees or
agents, or any other unauthorized use or disclosure of UAFC
Confidential Information. In the event of a material breach or
threatened breach by any party, or party's employees, or
agents, or the provisions of this Section 3, the other party
shall be entitled to injunctive relief. Nothing in this
Agreement shall be construed to prevent any party from
pursuing any other remedies that it may at law or in equity
for any breach or threatened breach of the confidentiality
provisions of this Section 3.
3D. The provisions of this paragraph shall survive termination
or expiration of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH HEREIN ALICOMP MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. HOWEVER, ALICOMP SHALL BE
RESPONSIBLE FOR PROVIDING MAINTENANCE ON ALL COMPUTER HARDWARE
AND PERIPHERALS, FACILITY, INCLUDING BUT NOT LIMITED TO UPS
AND ELECTRICAL GENERATOR EQUIPMENT, COMPUTER ROOM AIR
CONDITIONING, COMMUNICATIONS EQUIPMENT, AND ALL SYSTEM
SOFTWARE PROVIDED BY ALICOMP TO UAFC. ALICOMP RETAINS THE
3
AGREEMENT NO. 060100 - continued
UNILATERAL RIGHT TO CHANGE HARDWARE, SOFTWARE AND FACILITIES
LOCATION BUT SHALL BE REQUIRED TO PROVIDE EQUIVALENT
FUNCTIONALITY AND REDUNDANCY SO THAT CLIENT SOFTWARE RUNS
UNMODIFIED AND WITHOUT DISRUPTION. ALICOMP SHALL BEAR ANY
ADDITIONAL CHARGES OR FEES RELATED TO A CHANGE IN FACILITIES
LOCATION.
5. SERVICE LEVELS/PERFORMANCE STANDARDS
A. ALICOMP represents and warrants that it shall use due
care in processing all work transmitted to it by UAFC. ALICOMP
and its subcontractors shall follow the data processing
practices which are reasonable under the circumstances in
attempting to limit any damages that may be caused to UAFC.
This shall not obligate ALICOMP to upgrade the services or
equipment listed in Schedules A and B provided ALICOMP meets
or exceeds the service levels in Paragraph 5. ALICOMP will use
its best efforts to promptly respond to immediate problems,
which ALICOMP knows about, or should know about by using due
care or which are brought to its attention.
B. In addition, in the event of any errors attributable
to ALICOMP brought to its attention by written notice within
15 days from the date of the error, accompanied by reasonable
documentation, ALICOMP, as directed by UAFC, shall have 30
days from such notice to, at UAFC's sole election, either
correct said errors and redo the work or refund or credit the
applicable charges.
C. Uptime Guarantees. The above notwithstanding, ALICOMP
will use its best efforts subject to Paragraph 14 and 15 to
provide the following performance standards.
(a) ALICOMP represents and warrants that System
Availability shall not be less than 99.5% of the time per
calendar month as measured during primetime. Primetime as used
herein shall be the hours between 8:00 AM and 5:00 PM Monday
through Friday. Scheduled downtime, which shall not exceed the
time mutually agreed to by UAFC and ALICOMP for maintenance,
IPL's, and backups or problems caused solely by UAFC, its
agents, or third parties, or if the factor is an item covered
by force majeure shall not be counted towards system
availability calculation. UAFC shall approve scheduled
downtime in advance. Approval may not be unreasonably
withheld.
(b) ALICOMP warrants and represents that
Communication Network Availability shall not be less than
99.5% of the time per calendar month as measured during Prime
Time. Scheduled downtime which shall not exceed the time
mutually agreed to by UAFC and ALICOMP for maintenance, IPL's,
and backups or problems caused solely by UAFC, its agents, or
third parties, or if the factor is an item covered by force
majeure shall not be counted towards system
4
AGREEMENT NO. 060100 - continued
availability calculation. UAFC shall approve scheduled
downtime in advance. Approval may not be unreasonably
withheld.
A clarification of UAFC's communication network and
responsibilities regarding the Network is in Schedule B,
Section 5, hereto attached.
(c) ALICOMP warrants and represents that CICS
internal CPU response time shall be under 1.0 seconds averaged
over the period 9:00 a.m. to 5:00 p.m., per calendar month as
measured during Prime Time. The above notwithstanding, ALICOMP
shall not be responsible for a degradation in CICS internal
response time if such degradation is caused by new or modified
UAFC application software or other such reasons for a period
of five days immediately following such modification or
change.
(d) ALICOMP represents and warrants that it
shall provide prompt technical support, in accordance with
Schedule B attached hereto and incorporated by reference
herein, and that ALICOMP shall use best efforts to resolve and
correct as promptly as practicable, any system issues,
response time problems, throughput problems or downtime. For
reporting purposes, in the event that the services have not
been provided in accordance with the warranties or performance
standards herein, including without limitation throughput,
response times, processing times, capacity and downtime,
ALICOMP shall, as part of the services, (1) perform a
root-cause analysis to identify the cause of such failure, (2)
correct such failure, (3) provide UAFC with a written report
detailing the cause of and procedure for correcting, such
failure within thirty (30) days of the occurrence of such
failure and (4) provide UAFC with reasonable evidence that
such failure will not reoccur.
(e) ALICOMP represents and warrants that the
operating system software as reflected in Schedule A Item 1
attached hereto and services supplied by ALICOMP to UAFC
hereunder: (1) do not contain any viruses, time bombs, or
other devices capable of disabling or interfering with UAFC's
other systems; (ii) provides the functions and performs in
accordance with the user documentation and all other operating
system software documentation supplied by ALICOMP to UAFC
therefore; (iii) is substantially free from defects in
materials and workmanship.
D. (a) Following any significant upgrades or
changes by ALICOMP, ALICOMP shall closely monitor with UAFC
the impact of said upgrades or changes. The two (2) days
immediately following said upgrades or changes shall not be
counted towards calculating system availability, communication
network availability, CICS internal CPU response time, or in
the calculation or measurement of damages.
(b) Following any significant upgrades or
changes by UAFC, such as additional on-line users and
application software upgrades, ALICOMP shall
5
AGREEMENT NO. 060100 - continued
closely monitor with UAFC the impact of said upgrades or
changes. The five (5) days immediately following said upgrades
or changes shall not be counted towards calculating system
availability, communication network availability, CICS
internal CPU response time, or in the calculation or
measurement of damages.
6. REMEDIES AND DEFAULTS
A. Upon any material breach of this Agreement or any
series of breaches that collectively constitute a material
breach of this Agreement by ALICOMP, UAFC shall give immediate
notice followed by written confirmation to ALICOMP stating
with reasonable specification the nature of such material
breach. Failure to meet the 99.5% systems availability in any
three consecutive calendar months or if system uptime does not
meet a minimum standard of 95% in any calendar month then
there shall be deemed a material breach except if the failure
is due to a cause set forth in Paragraph 14 or to any other
cause not directly attributable to ALICOMP. ALICOMP shall,
where the breach has a material adverse impact on UAFC,
immediately initiate Emergency Services as defined in Schedule
B, to correct the breach and continue these efforts by
reasonable means in order to correct the breach. In the event
the material breach is not remedied within five (5) days of
the receipt of written notice, UAFC may at UAFC's sole
discretion, give ALICOMP a thirty (30) day written notice of
its intent to terminate this Agreement. If the material breach
is cured within such thirty (30) day period after notice is
given prior to termination, UAFC may, at its sole discretion,
advise ALICOMP of its intention not to terminate this
Agreement by giving ALICOMP reasonable notice of such intent
as soon as practicable under the circumstances. If UAFC elects
to terminate this Agreement, ALICOMP shall fully cooperate in
UAFC's migration to a new arrangement and provide the
Termination Assistance itemized in Paragraph 7.
Notwithstanding such termination, ALICOMP shall be required to
continue to provide at UAFC's sole determination the Services
at a prorated daily usage rate.
B. The parties have recognized and agreed that the
damages which UAFC would sustain in the event that ALICOMP
fails to make the computer and communications network
available in accordance with the requirements of Paragraph 5,
or fails to make the Applications available, or fails to meet
the Internal Response Times all as set forth in Paragraph 5 of
this Agreement would be difficult to measure, and have agreed
to the following formula for the calculation of such damages
as their best estimate of the calculation of such damages and
not as a penalty.
(a) Computer, Applications or data network
unavailability:
Pursuant to Paragraphs 5A, 5B, and/or 5.C and
Paragraph 14 of this Agreement there shall be no
damages for any month in which the computer,
Applications or data network is available to UAFC for
ninety-
6
AGREEMENT NO. 060100 - continued
nine and one half percent (99.5%) of the time
irrespective of what times during the month the
computer, Applications, or data network is
unavailable. If the computer, Applications or data
network is unavailable for more than one-half of a
percent (.5%) of the prime time during any month and
ALICOMP is the cause of such unavailability, while
such unavailability shall not be deemed a material
breach of this Agreement, provided that such
unavailability does not exceed .5% for three
consecutive months, then for each hour of the time
during that month that the computer, application or
data networks is unavailable beyond one-half (.5%) of
a percent of the prime time the fees for that month
that would otherwise be due to ALICOMP shall be
reduced by the sum of two thousand dollars ($2,000)
for each hour of prime time downtime and the sum of
five hundred dollars ($500) for non-prime downtime
(prorated to the nearest quarter hour), for which the
computer, Applications and data network is
unavailable.
(b) In no event shall the damages set forth in
6.B.(a) in the aggregate for any month exceed the
amount of the fees otherwise due to ALICOMP for that
month and the previous three months.
7. TERMINATION RIGHTS
A. Termination Services with Breach. Upon any
termination of this Agreement for any material breach by
ALICOMP, ALICOMP shall provide to UAFC services and
assistance, at no additional cost to UAFC, necessary to enable
UAFC at UAFC's option either (i) to commence performance of
the Services; or (ii) to enter into all agreements with third
parties necessary to enable such third parties to provide to
UAFC the services and to commence providing the Services to
UAFC. These services are:
a. Pre-Migration Services
(i) Freezing all non-critical changes to
Software;
(ii) Notifying all outside vendors of procedures
to be followed during the turnover phase;
(iii) Reviewing all Software libraries (tests and
production) with new service provider;
(iv) Analyzing space required for the databases
and Software library;
(v) Generating a tape and computer listing of
the Source Code in a form reasonably
requested by UAFC; and
(vi) Providing training to new operations staff.
7
AGREEMENT NO. 060100 - continued
b. Migration Services
(i) Unloading the production databases;
(ii) Delivering tapes of production databases
(with content listing) and all items listed
in Paragraph 8 to new operations staff;
(iii) Assisting with the loading of the databases;
(iv) Assisting with the telecommunications
turnover; and
(v) Assisting in the execution of a parallel
operation.
c. Post-Migration Services
(i) Consulting support on an "as needed" basis
for up to ninety (90) days as may be
requested by UAFC; and
(ii) Turnover of any remaining reports and
documentation still in the possession of
ALICOMP.
B. Termination without Breach - upon termination of this
Agreement for other than material breach, ALICOMP shall be
obligated to provide at UAFC's sole option migration services
and assistance as described in Paragraph 7A(a) above at the
then published rates for such services plus reimbursement for
reasonable travel and lodging.
8. DUPLICATE FILES
ALICOMP shall exercise due care over materials, programs and
data which belong to UAFC but which are in ALICOMP's
possession. In the event of loss or damage to such items
attributable to ALICOMP, ALICOMP, at its own expense, will
regenerate the lost data from duplicate copies of files (if it
is a file UAFC, or its agent, directed ALICOMP make duplicates
of) or from copies of the original source material or data
provided by UAFC. It shall be and remain ALICOMP's
responsibility to maintain such duplicate copies of all UAFC's
programs and data at an off site location according to a
schedule to be mutually determined and ALICOMP shall keep such
items in strict confidence in accordance with its obligations
under Section 3 of this Agreement. ALICOMP shall keep in a
separate and safe place backup copies of UAFC data and all
software required for processing or additional tapes or disks
necessary to reproduce all such UAFC data. ALICOMP shall
provide daily backup copies of data and programs for use at a
disaster recovery facility. ALICOMP shall use reasonable care
to minimize the likelihood of all damage, loss of data, delays
or errors resulting from an uncontrollable event, and should
such damage, loss of data, delays or errors occur, ALICOMP
shall use its best efforts to mitigate the effects of such
occurrence.
8
AGREEMENT NO. 060100 - continued
ALICOMP shall deliver to UAFC a weekly backup tape of all the
UAFC's data and necessary software.
Further, ALICOMP will be solely responsible to implement
system back-ups daily and weekly as instructed by UAFC that in
UAFC's opinion will assure full recovery to a point in time
not more than 24 hours back. ALICOMP shall be responsible for
providing recovery operations to restore the data promptly.
9. LIMITATION OF LIABILITY
9A. Except as otherwise expressly provided in this
Agreement or Schedules, ALICOMP shall not be liable for any
claim or damage arising from any defect in services or
equipment hereunder or from interruption or loss of use
thereof, or from any other cause except for direct loss
resulting front the fault or negligence of ALICOMP, its
employees, subcontractors or agents. ALICOMP's liability for
direct damages under this Agreement for any breach or series
of breaches including damages set forth in Paragraph 6 shall
not, in any event, exceed the total of the billing for the
month in which the loss is alleged to have occurred and the
prior three months. Except for UAFC's breach of its
confidentiality obligations hereunder, UAFC's liability for
direct damages under this Agreement shall not exceed the
amounts owed by UAFC under this Agreement which remain unpaid
at the time of the loss or damage. Except as otherwise
provided herein, neither UAFC nor ALICOMP shall be liable for
indirect, special or exemplary damages nor shall it be liable
for consequential damages, including but not limited to, loss
of anticipated profits or other economic loss in connection
with the services rendered hereunder.
9B. ALICOMP shall not be responsible for any application
of the results obtained from the use of any computer programs
or for the unintended or unforeseen results obtained by UAFC
in the use of such programs even if such application or result
was or is foreseeable.
9C. ALICOMP's maximum liability in the aggregate arising
out of or relative to this Agreement, for any cause or causes
whatsoever including damages under Paragraph 6, and regardless
of the form of action (whether in contract or in tort,
including negligence) shall be limited to direct damages in
the aggregate up to an amount equal to the total of the prior
six month's billing.
9D. (a) The terms and limitations of paragraphs 6(b),
9(A) and/or 9(C) not withstanding, if UAFC sustains direct
damages exceeding the amounts set forth in such paragraphs
UAFC may assert a claim against ALICOMP for such excess
damages provided however that any judgment or arbitration
award obtained on such a claim (herein the Excess Judgment)
may be enforced only to the following extent: (1) that ALICOMP
receives payment of insurance proceeds with respect to such
Excess Judgment under the Errors and Omissions, General
Liability and Employee Fidelity Insurance required to be
carried under Section 20 below, or
9
AGREEMENT NO. 060100 - continued
that the carrier of any such insurance pays such Excess
Judgment directly to UAFC or to ALICOMP to fund or reimburse
such payment; or (2) if ALICOMP's insurance carrier(s)
declines to pay the Excess Judgment because (i) such insurance
is not in force because of acts or omissions of ALICOMP in
breach of its obligations hereunder or (ii) of the lack of
cooperation of ALICOMP, then to the extent that such insurance
would have been payable absent such breach or lack of
cooperation. If ALICOMP's insurance carrier(s) decline to pay
the Excess Judgment for any other reason, any sums in excess
of the amounts set forth in paragraphs 6(b), 9(A) and/or 9(C),
ALICOMP shall assign to UAFC its rights, if any, against the
carrier(s) and UAFC may at its sole expense bring an action
against the carriers to force the carrier(s) to pay any
additional sums as a court of competent jurisdiction may find
are due and owing under the terms of the policy(ies). ALICOMP
shall cooperate with UAFC in any such suit. Upon payment to
UAFC of the amounts due to it under this paragraph 9(D)(a) or
upon a final determination that the carrier(s) have no
liability for Excess Judgment, UAFC shall provide ALICOMP with
a satisfaction of the Excess Judgment and a release of any and
all claims with respect to the Excess Judgment except under
paragraph 6(b), 9(A) and 9(C), despite UAFC's lack of recovery
and the limitations set forth in paragraphs 6(b), 9(A) and/or
9(C) shall govern and apply and upon payment of the sums due
in paragraphs 6(b), 9(A) and 9(C), shall provide ALICOMP with
a satisfaction of judgment and release of all claims under
such paragraphs.
(b) For the purposes of this paragraph, in determining
the amount of payments made by ALICOMP's insurance carrier(s)
any payment made by the carrier(s) to or on behalf of ALICOMP
or to reimburse ALICOMP for any damages paid in satisfaction
of the damages limitations set forth in paragraphs 6(b), 9(A)
and or 9(C) shall not be taken into account. For example. If
ALICOMP became liable to compensate UAFC for six months' worth
of fees and the fees were $100,000 per month, if ALICOMP
and/or its carrier on ALICOMP's behalf paid the $600,000 to
UAFC and the carrier could not be made to pay any additional
sums then UAFC could not look to ALICOMP to pay any additional
sums as damages. If, however, UAFC could prove direct damages
of $800,000 and the carrier actually pays a total of $700,000
UAFC would be entitled to an additional $100,000.
10. PRINTING
The computer equipment provided by UAFC shall include all
equipment necessary for the printing of all output at UAFC's
sites.
11. MODIFICATION OF PROCEDURES
ALICOMP may, in its reasonable discretion, modify its
procedures for providing the services, so long as such
modification shall not affect ALICOMP's ability to meet the
services as set forth in this Agreement. ALICOMP agrees to
notify UAFC in advance of any such changes.
10
AGREEMENT NO. 060100 - continued
12. UAFC RESPONSIBILITY
A. UAFC shall be responsible to provide, at its sole
cost, training as required, to ALICOMP technical support and
operations personnel during migration and anytime thereafter
UFAC makes any change to the system. This will consist of the
performance of duties currently performed by UAFC that are
specific and unique to UAFC application(s).
B. All telecommunications lines and devices that are
utilized to provide the services herein must be approved by
ALICOMP. Such approval not be be unreasonably withheld. If
telecommunications lines and devices have been disapproved by
ALICOMP, then ALICOMP shall have no liability for the results
flowing from the use of such equipment.
C. UAFC provisions the frame relay network and provides
all networking devices, including devices to be located at the
Alicomp data center. This includes the channel-attached Cisco
7x00 router that UAFC currently uses at one of its existing
data center sites or an equivalent new Cisco
channel-attachable router.
D. Communications network that delivers data to desktop
and desk top devices.
E. UAFC shall be required to provide all reasonable
resources and equipment necessary to support:
F. Application Support, Testing, Maintenance
G. All printing at UAFC offices
H. Any other equipment or service not included in
Schedule A, Section 1
I. File Size and File Reorg Maintenance for Applications
J. Notice of Proposed Changes. UAFC shall provide to
ALICOMP any information in its possession that may help
ALICOMP to prepare for any Changes that will be requested by
UAFC.
13. NON-SOLICITATION
During the term of this Agreement and for a period of ninety
(90) days thereafter, ALICOMP will not accept for employment
any employees or contractors of UAFC and/or its affiliates.
UAFC will not accept for employment any employees or
contractors of ALICOMP or its affiliated companies who have
been providing the services to UAFC hereunder.
11
AGREEMENT NO. 060100 - continued
14. FORCE MAJEURE
ALICOMP shall not be liable for any failure to perform its
obligations under this Agreement if prevented from doing so by
a cause or causes beyond its reasonable control, such as acts
of God, war, fire, explosion, earthquake, flood, elements,
weather, governmental order or regulation, acts of public
enemies, however, ALICOMP shall be responsible for providing
the services under the terms in Paragraph 15 hereunder. The
above notwithstanding, ALICOMP shall be responsible for
providing the services herein pursuant to Paragraph 5, no
later than 120 hours (5 days) from the Disaster Declaration
pursuant to Paragraph 15 below.
15. DISASTER RECOVERY
ALICOMP shall have a disaster recovery program included with
Schedule B that will be activated if service would otherwise
be interrupted for 48 or more consecutive hours. ALICOMP
agrees that it shall give UAFC its best estimate of when the
system and services will be available to UAFC within two (2)
hours of a disaster. In the event that ALICOMP anticipates
that service will be continuously interrupted for a period of
less than 48 hours, at UAFC's request, ALICOMP will declare a
disaster and invoke its disaster recovery procedures if the
interruption will otherwise exceed 24 hours. UAFC shall be
responsible for declaration fee and usage fees if the
interruption has a duration of less than 48 hours. If the
interruption in fact has a duration of 48 or more hours, UAFC
will be released of the responsibility of paying the
declaration and usage fees. ALICOMP will arrange for a
disaster recovery test, at no additional cost to UAFC, no less
than once every 12 months. UAFC shall be responsible for
developing its disaster recovery plan with ALICOMP, including
but not limited to critical data, Applications, and
telecommunications. UAFC will also be expected to work with
ALICOMP to test and, if necessary, recover from a disaster.
ALICOMP shall maintain at all times during the Agreement a
subscription for a HotSite with a reputable vendor. If vendor
is not Comdisco, ALICOMP must receive written approval from
UAFC. Such approval not to be unreasonably withheld.
16. CONTRACT TERM
This Agreement shall commence on or about January 15, 2001,
the Date of First Productive Use, and shall continue for 60
consecutive months, except as provided herein.
17. AUTOMATIC RENEWAL
Following the end of the Initial Term, the term of this
Agreement shall be automatically renewed for consecutive one
year terms unless and until either party has provided the
other with six (6) months prior written notice of nonrenewal.
12
AGREEMENT NO. 060100 - continued
18. ASSIGNMENT
No party may assign its rights nor delegate it duties under
this Agreement without obtaining the prior written consent of
the others, such consent not to be unreasonably withheld. The
above notwithstanding, a party's consent will not be required
if this Agreement is assigned to UAFC's affiliates or if
either party is sold or merged together with and as part of
its entire assets, business and goodwill as a going concern
and on the condition that upon such assignment, the assignee
shall be subject to all the terms and conditions of this
Agreement. ALICOMP is the prime contractor under this
Agreement and as such, ALICOMP assumes full responsibility for
the entire performance, and all acts and omissions, of any and
all suppliers, subcontractors or third parties under this
Agreement.
19. DISPUTE RESOLUTION
a. Arbitration. If the parties fail to resolve a dispute
after sixty days of good faith negotiations, except
as otherwise provided in this Agreement, all claims,
disputes, controversies and other matters in question
between the parties to this Agreement that cannot be
resolved by the parties and which involve damages of
$600,000 or less shall be resolved by binding
arbitration in accordance with the commercial rules
of the American Arbitration Association ("AAA"). Such
arbitration proceeding shall be held in New York, New
York, unless the parties agree otherwise, and all
disputes shall be governed by, and decided in
accordance with, the laws of the State of New York,
without regard to conflicts of law principles. Either
party may serve upon the other by certified mail a
written demand that a claim, dispute or controversy
be submitted to arbitration. The demand shall specify
in reasonable detail the nature of the claim, dispute
or controversy and shall be made within a reasonable
time after the claim, dispute or controversy has
arisen and after completion of the good faith
negotiations described above. In no event shall the
demand for arbitration be made more than six (6)
months after the claim or cause of action arises.
Within thirty (30) days after service of a demand for
arbitration, the parties shall attempt to agree upon
a single arbitrator. In the event that they are
unable to do so, either party may request that the
AAA provide a list of arbitrators. If, within thirty
(30) days from receipt of such list, the parties fail
to agree upon an arbitrator named on such or, for any
reason, the appointment cannot be made from such
list, then the arbitrator shall be appointed by the
AAA. The parties acknowledge that despite the
provisions of the commercial arbitration rules, the
parties shall each be entitled to the full range of
discovery as would otherwise be available under the
laws and rules for civil litigation in the courts of
the State of New York. In the event that any dispute
in the interpretation or enforcement of any and/or
all terms of this Agreement leads to arbitration, the
prevailing party in the arbitration shall be entitled
to recover its costs,
13
AGREEMENT NO. 060100 - continued
including attorneys' fees. The award of the
arbitrator or arbitrators may be enforced as a
judgment in any court of competent jurisdiction.
b. Award. The written decision of the arbitrator shall
be final and binding upon the parties so long as the
damages sought by any party do not exceed $600,000.
20. INSURANCE
ALICOMP shall procure and maintain throughout the term of this
Agreement, at its sole cost and expense, at least the
following types and amounts of insurance coverage:
A. Commercial General Liability Insurance (including
premises/operations liability, independent
contractors liability, contractual liability, product
liability, completed operations liability, broad form
property damage liability, personal injury liability,
and extended bodily injury and death coverage) in a
minimum amount of two million dollars ($2,000,000)
per occurrence and four million dollars ($4,000,000)
aggregate combined single limit for bodily injury
(including death, personal injury, or property
damage).
a. Fidelity Employee Insurance including
Computer Crime Insurance providing coverage
for direct or indirect loss to UAFC
including any loss of money, securities, or
property other than money or securities to
clients and any legal liability of UAFC
arising out of or related to fraudulent or
dishonest acts committed by the employees of
ALICOMP or its subcontractors, whether
identified or not acting alone or in
collusion with others, in a minimum amount
of five million dollars ($5,000,000) with
full indemnification of UAFC.
B. Umbrella Liability Insurance in minimum of two
million dollars ($2,000,000).
C. Workers Compensation Insurance covering ALICOMP's
employees in an amount not less than the limits
required by law and Employers Liability Insurance
covering ALICOMP's employees in an amount not less
than five hundred thousand dollars ($500,000) per
occurrence.
D. Errors and Omissions Insurance of two million dollars
($2,000,000).
21. GOVERNING LAW
This Agreement shall be governed by the laws of the State of
New York without regard to its conflict of law rules.
14
AGREEMENT NO. 060100 - continued
22. AGREEMENT
A. This Agreement supersedes all prior proposals, and
Agreements oral or written, and all previous negotiations and
all other communications or understandings between the parties
with respect to the subject matter hereof. This Agreement sets
forth the sole and entire understanding between the parties
with respect to the subject matter and may not be modified in
any manner except in writing specifically referring to this
Agreement and signed by an authorized representative of each
party.
B. Schedules A and B are hereby incorporated by
reference and shall be considered valid and enforceable as if
a part of this Agreement.
23. NOTICES
Any notices to be provided hereunder shall be sent by
Certified Mail Return Receipt Requested and shall be addressed
as follows or as may later be designated in writing:
If to ALICOMP:
ALICOMP, a division of ALICARE, Inc.
2 Christie Heights
Leonia, New Jersey 07605
Attn.: Arthur Kurek, President
cc: Lorraine Drake, Executive Vice President
cc: Infocrossing Inc.
2 Christie Heights
Leonia, New Jersey 07605
Attn.: Robert Wallach
If to UAFC
Universal American Financial Corporation
600 Courtland Street
Orlando, Florida 32804
Attn.: George Eldridge, Chief Information Officer
cc: Gary Bryant, Chief Operating Officer
Senior Vice President
Notice shall be deemed given five days after mailed in a
postage paid addressed envelope.
15
AGREEMENT NO. 060100 - continued
24. TAX COOPERATION
As of the signing of this Agreement ALICOMP is not aware of
any sales or use tax with regard to the providing of computer
outsourcing services. However, if any jurisdiction requires a
sales or use tax be imposed on this type of service in the
future, UAFC, provided it is notified of such tax in writing
by ALICOMP prior to such tax becoming due, will be responsible
for payment of such tax, unless either party presents
appropriate documentation of resale or exemption.
25. AUTHORITY
UAFC represents and warrants as follows:
A. Authority: UAFC has all power and authority necessary
to enter into and perform its obligations under this
Agreement and, upon execution and delivery, this
Agreement shall be a legal, valid and binding
obligation of it, enforceable against it in
accordance with its terms.
B. Infringement: the use of UAFC Software in accordance
with the terms of this Agreement does not and shall
not infringe upon or misappropriate any intellectual
property right of any third party and that no such
claim (whether or not embodied in an action, past or
present) has been made to, or is pending against, it
or, to the best of its knowledge, any other entity.
C. Disclaimer of Further Warranty. Except as expressly
set forth herein, no party makes any other warranty,
express or implied, and both parties disclaim the
implied warranties of merchantability or of fitness
for a particular purpose.
26. INFRINGEMENT
The use of the Hardware and the Third Party Software in
accordance with the terms of this Agreement and the
performance of the Services do not and shall not infringe upon
or misappropriate any intellectual property right of any third
party and no such claim (whether or not embodied in an action,
past or present) has been made to, or is pending against, it
or, to the best of its knowledge, any other entity.
27. SEVERABILITY: NO WAIVER; REMEDIES; HEADINGS
If any provision of this Agreement, or portion thereof, is
held by a court of competent jurisdiction to be unenforceable,
that provision shall be enforced to the maximum extent
permissible so as to affect the intent of the parties, and the
remaining provisions of this Agreement will remain in full
force and effect. The waiver or failure of either party to
exercise any right in any respect provided for herein shall
not be deemed a waiver of any further right hereunder. Except
as
16
AGREEMENT NO. 060100 - continued
otherwise set forth herein, the rights and remedies of either
party set forth in this Agreement are not exclusive and are in
addition to any other rights and remedies available at law or
in equity. The headings used in this Agreement have been
inserted for convenience of reference only and do not
constitute matters to be considered in interpreting this
Agreement.
28. JOINT AND SEVERAL LIABILITY
Except as expressly specified herein, ALICOMP, a division of
ALICARE, Inc. and Infocrossing, Inc. who shares facilities,
hardware, software, and staff, shall both be responsible for
the performance of this Agreement, jointly and severally.
29. FINANCIAL UNDERTAKING
By execution of this Agreement, ALICO Services Corporation
(ASC) guarantees the financial obligation of ALICOMP. ASC
shall not be deemed to be a party to this Agreement for any
other purpose.
ALICOMP, a division of ALICARE, Inc. Universal American Financial Corporation
BY: ________________________________ BY: ____________________________________
Date________________________________ Date____________________________________
Infocrossing Inc. ALICO Services Corporation
BY: ________________________________ BY: ____________________________________
Date________________________________ Date____________________________________
17
SCHEDULE A
to Agreement # 060100
PRICING AND PRICING COMPONENTS
The Fees of Schedule A herein will be paid in accordance with Paragraphs 2, 16,
and 17 of this Agreement.
1. PRICING COMPONENTS INCLUDED IN FIXED MONTHLY FEE:
- CPU - an IBM CMOS RX4 or RX5 processor with appropriate cache
and channels.
A. For first six full calendar months, minimum billing shall be
based on baseline (6,400 minutes and 165 Gigabytes of DASD per
month at a rate of $15.04 per minute or $96,256).
- After the first six full calendar months, the Fixed Monthly
Fee will be calculated to reflect actual utilization as shown
in 1D below:
- Pricing Schedule:
IF UTILIZATION REACHES (PER MONTH) FIVE YEAR CONTRACT DASD ALLOWANCE
- ----------------------------------------------------------------------------------------------------------
Above 9,111 $12.21 per month per Up to 300 Gigabytes
minute ($146.50 annually)
- ----------------------------------------------------------------------------------------------------------
Between 7,501 and 9,111 $13.63 per month per Up to 220 Gigabytes
minute ($163.50 annually)
- ----------------------------------------------------------------------------------------------------------
Between 4,000 - 7,500 CPU minutes $15.04 per month per Up to 165 Gigabytes
(Baseline is 6,400 per month)* minute ($180.50 annually)
- ----------------------------------------------------------------------------------------------------------
Between 2,000 - 3,999 $21.71 per month per minute Up to 120 Gigabytes
($260.50 annually)
- ----------------------------------------------------------------------------------------------------------
Below 2,000 CPU minutes (Minimum) Monthly Fee DASD Allowance
- ---------------------------------------------------------------------------------------------------
Year 1 $41,667 Up to 100 Gigabytes
- ---------------------------------------------------------------------------------------------------
Year 2 $41,667 Up to 100 Gigabytes
- ---------------------------------------------------------------------------------------------------
Year 3 $30,000 Up to 100 Gigabytes
- ---------------------------------------------------------------------------------------------------
Year 4 $30,000 Up to 100 Gigabytes
- ---------------------------------------------------------------------------------------------------
Year 5 $20,000 Up to 100 Gigabytes
- ---------------------------------------------------------------------------------------------------
* "Baseline Utilization" for the purpose of this Agreement shall be UAFC'c
current utilization of approximately 6,400 minutes at $15.04 per minute per
month or $96,256 and 165 Gigabytes of DASD.
B. CPU also includes unlimited:
- TSO Connect Time (MVS)
- Tape Mounts
- Tape Excp
- DASD Excp
- Remote Printing
C. DASD - EMC Symetrix per Item 1D of Schedule A. Additional DASD
can be added dynamically without interruption, at any time, on demand,
as needed.
DASD above allowance - $100 per Gigabyte per month.
D. Tape - IBM VTS (is available)
IBM 3490 (8 Transports)
IBM 3480 (24 Transports)
3420 Round Reel Drives (if required)
Transports on IBM 3480, 3490, VTS
Server Facilities
- Communications and appropriate peripherals provided by UAFC
E. Administrative, Operational and technical personnel to provide
services.
F. Disaster Recovery - Migration of UAFC's existing mainframe
plan into ALICOMP's disaster recovery program.
G. Mainframe Services - Alicomp Provided See Appendix A
H. System Software Responsibility - See Appendix
I. Applications anticipated from UAFC supported by ALICOMP will
be:
ABC/CDS
CAPSULE 4
DL
Proprietary Commission System
ClaimFacts
GroupFacts
CK4
Proprietary Claims System
Several Ancillary Support Systems
2
AGREEMENT NO. 060100 Schedule A - continued
There will be NO ONE TIME COSTS for migration, installation,
cutover or termination of UAFC's processing except for the
reimbursement of ALICOMP's reasonable out-of-pocket expenses
for travel and lodging of its technical staff.
One time Migration to a Virtual Tape Server (VTS) system would
be provided for an additional cost based upon your
requirements.
J. Value Added Services: Value added services at no additional
charge include Migration Consulting; DASD Monitoring and
Archiving processes and procedures; Help Desk Interface;
Information Exchange from Leonia New Technology R&D Program
(i.e. technical assistance in the evaluation and selection of
hardware/software platforms in support of client/server
applications, Internet Services such as in-house Web Site
production platform options for Home Page Listing and content
development, and Communication Protocol advancement. R&D
results will be available to as part of this offering.
Management practices are in place regarding daily operational
services, security and recovery procedures. Operational and
monitoring support for bridges/routers and WAN links,
technical practices for change control, problem management,
performance and tuning, technology awareness, and service
level management for both mainframe and related
server/router/gateway support are included. Our 7 days a week,
24 hours a day Customer Service "Help Desk" is available via
an "800" number for problem analysis, resolutions, and service
questions.
We will prepare and provide UAFC with a migration plan showing
the milestones that would be met by January 15, 2001 within 30
days of the signing of this Agreement.
2. PRICING COMPONENTS NOT INCLUDED IN MONTHLY FIXED FEE:
- Application Support, Testing, Maintenance
- Transfer fees for Software, if any
- SAS Software License
- Cost of communication Network and Hardware not
otherwise included herein
- Intra Office Disaster Recovery
- Intra Office Data Communications
3. PROMPT NOTICE OF INCREASING OR DECREASING RESOURCE
REQUIREMENTS FOR ALICOMP'S LONG TERM PLANNING:
AGREEMENT NO. 060100 Schedule A - continued
In order for ALICOMP to plan for UAFC's future resource
requirements and to best meet UAFC's needs pursuant to
Paragraphs of Schedule A, in the event that UAFC determines or
has knowledge that there is a substantial likelihood that it
will require either less or more MIPS, DASD, or other
resources as of any date, UAFC shall give prompt notice of
such potential increase or reduction after making such
determination. Such notice shall be given verbally and then in
writing.
ALICOMP Universal American Financial Corporation
BY:________________________________ BY:_____________________________________
Date_______________________________ Date:___________________________________
Infocrossing Inc. ALICO Services Corporation
BY:________________________________ BY______________________________________
Date_______________________________ Date____________________________________
2
SCHEDULE B
to Agreement # 060100
A. TECHNICAL ENVIRONMENT
1. FACILITY:
[X] DESCRIPTION - UAFC facilities management contract will be operated from a
new, stand alone facility which is located at Two Christie Heights, Leonia, New
Jersey. The facility offers 67,000 sq. ft. of space, of which over 30,000 sq.
ft. is 18" raised floor with a tape library that can accommodate over 200,000
tapes.
[X] REDUNDANCIES - The facility receives its primary power from PSE&G. In the
event power from PSE&G is disrupted in any way on in-line 750 KVA UPS systems
will keep the computer room powered for thirty seconds, at which time a 1750 KW
and a 500 KW generator will provide full electrical power for an unlimited
period of time with diesel fuel deliveries as required. UPS and generator
testing and maintenance is done off-line monthly. Data TEC Corporation will be
providing UPS maintenance and Cummings Corporation, generator maintenance.
Service contracts require turn around in less than two hours whether prime or
off prime shift. Air conditioning for the computer room is provided through a
redundant set of thirteen (13) Liebert 20 ton air conditioners, any two of which
can provide full cooling requirements under any conditions. Each of the three
units has a standby compressor, if the primary units should fail. Temperature,
humidity, smoke and moisture detection equipment will provide us with
instantaneous telemetry should any system fail, maintenance provided by
Stillwell Hanson Corporation. These environmental systems will be monitored 24
hours per day, 7 days per week and will also call out to the appropriate
service/emergency provider as well.
2. CPU:
[X] DESCRIPTION - ALICOMP will be utilizing IBM's CMOS 9672-RX processor for
UAFC. All I/O devices, where applicable, will be ESCON attached providing
transfer rates up to three (3) times faster than standard parallel channels.
[X] REDUNDANCIES - The IBM 9672-RX processor provides full redundancy within its
own complex by keeping at least two of five processors available as standby
processor should any of the three primary processors fail. There will also be a
separate 9672-RX backup processor for UAFC backup environment.
AGREEMENT NO. 060100 - continued
3. DASD:
[X] DESCRIPTION - ALICOMP will be utilizing EMC Symetrix Raid-S DASD for UAFC,
model number 5700 or equivalent. EMC Symetrix DASD is the most reliable DASD
available in the marketplace today.
[X] REDUNDANCIES - EMC 5700 DASD or equivalent provides for full redundancy as
follows: For each volume of Primary DASD, there is another volume empty and
waiting. If the device senses any malfunction, it dynamically transfers the
volume's files to the backup volume and calls out for service. DASD uses
multiple channel paths. If a channel malfunctions, the traffic would dynamically
revert to other paths. Additional redundancies include dual power supplies and
dual channel paths.
4. TAPE DRIVES:
[X] DESCRIPTION - ALICOMP will utilize VTS/3480/3490/3420 tape drives with IDRC
compression for UAFC.
[X] REDUNDANCIES - In order to assure that UAFC's system can access its own tape
drives as well as others available in the data center.
5. COMMUNICATIONS:
|X| DESCRIPTION - The Leonia facility is fed by multiple OC-48 dual feed (SONET)
service from Bell Atlantic. Most long distance service (where necessary) is
provided by WilTel. We utilized a dual frame 3745 Front End Processor along with
Open System Adapter (OSA) and 3172 routed network connectivity at Leonia and
Comdisco.
REDUNDANCIES - In order to provide full communications redundancy, ALICOMP has
installed multiple OC-48 SONET service. Our service has dual paths leaving the
facility and utilizes both the Leonia and Cliffside Park central offices with a
SONET Ring into WilTel as well. The 3745 Front End Processor provides a second
backup frame and dual power supplies. CISCO Routers are also utilized. Because
ALICOMP provides an OSA, a 3172 is available for placement at Comdisco.
6. SOFTWARE:
[X] DESCRIPTION - ALICOMP will be providing supported releases of all IBM and
third party system software reflected in Appendix B (Software Responsibility) of
this proposal.
[X] REDUNDANCIES - While there are no specific redundancies inherent in
software, we will guarantee to utilize only vendor supported software for UAFC
to ensure timely problem resolution.
2
AGREEMENT NO. 060100 - continued
7. HELP DESK:
[X] DESCRIPTION - ALICOMP provides a 24 hours per day, 7 days per week Help Desk
to UAFC via an "800" number.
[X] REDUNDANCIES - The Help Desk is managed by full-time, technically capable
staff. Technical services specialists shall be available on an escalation basis
at all times.
8. HOT SITE DISASTER RECOVERY:
[X] DESCRIPTION - ALICOMP has in effect at all times an expandable long term Hot
Site agreement with Comdisco's Disaster Recovery Division. ALICOMP's primary
backup facility is located in North Bergen, New Jersey. UAFC's cost for Sunguard
recovery services can be eliminated when its contract terminates.
[X] REDUNDANCIES - Periodic testing for UAFC, along with T-1 bandwidth into
North Bergen, should provide for a successful migration to this backup facility,
if required.
[X] RESPONSIBILITIES - ALICOMP shall initiate work on problems reported by UAFC
within one (1) hour between 8:00 am and 6:00 pm and within two (2) hours between
6:00 pm and 8:00 am of UAFC's call for assistance, twenty-four hours (24) per
day and seven (7) days per week. Notwithstanding the foregoing, for all
telecommunication line problems, ALICOMP shall initiate work within thirty (30)
minutes between 8:00 am and 6:00 pm and within one (1) hour between 6:00 pm and
8:00 am of UAFC's call for assistance, twenty-four hours (24) per day and seven
(7) days per week. ALICOMP agrees to remedy failures, malfunctions, defects,
errors or non-conformities within twenty-four (24) hours of UAFC's report of
such problem, provided that if ALICOMP does not remedy such error within the
foregoing twenty-four (24) hour period, ALICOMP agrees to provide continuous
efforts until such problem is remedied. "Emergency Services" shall mean
immediate, continuous best efforts by ALICOMP to immediately resolve the
problem.
9. INSPECTION BY UAFC:
UAFC shall have the right, at its sole cost to inspect the data center
facilities once a calendar quarter provided by ALICOMP, in order to insure that
ALICOMP is adhering to the provisions of this Agreement. Such inspection shall
include review of the security and other procedures that are being used. UAFC
shall give reasonable notice to ALICOMP of such inspections. UAFC shall have the
right to conduct a data processing audit of ALICOMP and its subcontractors
operations and ALICOMP's maintenance of UAFC's data. UAFC shall have the right
to examine ALICOMP's and any subcontractor's operations to assure itself that
the UAFC data is being processed correctly and that the processing is adequate
to meet the terms of this Agreement.
3
AGREEMENT NO. 060100 - continued
ALICOMP agrees that the data center operation and the services provided by
ALICOMP under this Agreement are subject to audit by UAFC's internal auditors,
its independent auditors and any regulatory agency with jurisdiction over UAFC
at any time. ALICOMP will cooperate fully with UAFC or its designee in
connection with UAFC's audit functions or with regard to examinations by
regulatory authorities. Following an audit examination, UAFC will conduct (in
the case of an internal audit) or instruct its external auditors or examiners to
conduct an exit conference with ALICOMP, and, at such tine, and as soon as
available thereafter, to provide ALICOMP with a copy of the applicable portions
of each report regarding ALICOMP or ALICOMP's services prepared as a result of
any audit or examination. ALICOMP also agrees to provide UAFC a copy of the
portions of any written report containing comments concerning ALICOMP or the
services performed by ALICOMP. The failure or inability of ALICOMP to promptly
resolve any material audit exceptions related to ALICOMP's confidentiality
requirements pursuant to Section 3 of the Agreement shall be a material breach
of this Agreement. Any information or data obtained by UAFC or its Agents as a
result of these audits or inspections shall be deemed confidential information
and subject to the non-disclosure provisions of the Agreement included in
Paragraph 3.
4
AGREEMENT NO. 060100 - continued
B. MANAGEMENT PRACTICES
The following components enable ALICOMP and UAFC to manage and monitor the
performance of UAFC computer services and serve as sources of system status
information reported to UAFC:
1. CAPACITY PLANNING REPORTS:
Measurement and reporting of CPU utilization over time
provides information which can alert UAFC that certain
internal activities might be rescheduled, examined more
closely, or changed. Such reporting can demonstrate the
necessity of adding additional MIPS as processing loads
increase. Timely decision making can eliminate internal
response time problems.
2. PROBLEM MANAGEMENT REPORTING SYSTEM:
Staffed 7 days a week, 24 hours a day, the Help Desk serves as
a single focal point for reporting operational problems.
Customer Service Specialists are trained in problem definition
to assure the resolutions of problems as quickly as possible.
All problems are recorded and then distributed to ALICOMP's
Data Center Management and Senior Management. Monthly Help
Desk Reports will be distributed to ALICOMP and UAFC
Management. These reports assist in determining trends which
may include Operational and/or User Training.
3. PHYSICAL SECURITY ADMINISTRATION:
To prevent unauthorized entry to the facility, ALICOMP has a
security system that controls access into and within the
building, automatically limiting access to sensitive areas.
Access is also logged. Additionally, cameras are installed
both inside and outside the building in Leonia. The entire
premises are constantly scanned by a comprehensive camera
system and guarded by a 24 hour guard service.
4. LOGICAL SECURITY ADMINISTRATION:
It is the policy of ALICOMP Operations to retain the identity
and integrity at the application level for every customer.
This concept of functional separation of data files, program
libraries, catalogs, and computer resources is implemented by
various data security and access control software products.
These systems restrict access to UAFC's information to only
those individuals who are authorized and serve to protect
UAFC's valuable data from unauthorized destruction,
modification, or ID disclosure. ALICOMP supports a variety of
access control products which provide data security for all
users by requiring a logon ID and password at system logon
time. Passwords are required to be changed
5
AGREEMENT NO. 060100 - continued
periodically to ensure access control integrity. Although
primary responsibility for systems security will remain with
UAFC, ALICOMP will provide all required support in connection
with security administration.
5. DATA STORAGE MANAGEMENT:
Operational incremental and full system back-ups are taken
from disk datasets and requested tape files and shipped
off-site daily. These datasets are retained off-site per
client requirements as specified, and can be retrieved for
operational and/or disaster recovery testing within a two-hour
time frame. Complete reporting systems enable rapid retrieval.
6. CHANGE CONTROL POLICY AND PROCEDURES:
It is ALICOMP's policy to maintain an installation that is
state-of-the-art, practical and cost effective. ALICOMP
constantly monitors and evaluates current service levels,
technological innovations and trends in mainframe and PC
hardware and software, and LAN and WAN configuration
requirements.
When components of the current environment are identified for
enhancement or an upgrade to a new technology becomes
desirable, ALICOMP will advise UAFC and seek its consent and
cooperation in incorporating a new product or service.
7. NETWORK MANAGEMENT:
ALICOMP will manage and monitor network connectivity between
UAFC and the Leonia, NJ facility using a combination of
general purpose and vendor specific utilities.
8. PERFORMANCE MEASUREMENT/MONITORING:
ALICOMP will monitor system status and measure system
utilization and performance on both a real time and an
historical basis. Performance tuning will be proactive on a
continuous basis without interruption to UAFC processing
schedules.
9. RELATIONSHIP MANAGEMENT:
Lorraine Drake has the responsibility of assessing and
assisting with all matters that may hinder an excellent
partnership/relationship between UAFC and ALICOMP.
10. OPERATIONS/HUMAN RESOURCE CONTROL
ALICOMP and UAFC will identify and define Operations/Human
Resource activities that will enable UAFC to have the control
it deems necessary.
[X] Examples include:
6
AGREEMENT NO. 060100 - continued
Participation in approving of Console Operators
Participation in Performance Reviews of the following:
[X] Operations
[X] Technical Support
[X] Client Services
[X] Help Desk
Changes in IPL Scheduling
Upgrade of Technology
11. QUALITY ASSURANCE MONITORING
ALICOMP utilizes its Management Reporting Systems to assure a
level of services consistent with the goal of meeting or
exceeding performance expectations. Such reporting systems
include the components identified in Section B: MANAGEMENT
PRACTICES, as well as the monthly reporting of the following:
[X] DASD Utilization
TEST
[X] Tape Inventory
Cartridges in Storage
Cartridges in Storage Off Site
Cartridge Scratches Available
Reels in Storage
Reels in Storage Off Site
Reel Scratches Available
[X] Tape Mounts (ALICOMP will have a separate Tape
Library, Librarian and Operators will mount
their own tapes).
[X] Help Desk Reports
Monthly
C. ACCOUNT TEAM
ACCOUNT MANAGER FOR UAFC
ARTHUR KUREK, PRESIDENT OF ALICOMP will be your Account Manager for at
least the first six months of operation. Arthur has been with
Amalgamated Life (ALICO) and its affiliates for over 25 years, and has
held the positions of Chief Financial Officer, Senior Vice President of
Management Information Systems, and Senior Vice President of Financial
Performance and Marketing during his tenure. Art is one of five senior
executive corporate officers responsible for the day-to-day operation
of Amalgamated Life and its affiliates, with particular emphasis on
ALICOMP. Prior to working at Amalgamated Life, Art was with Empire Blue
Cross and Mobil Oil Corporation.
7
AGREEMENT NO. 060100 - continued
LORRAINE DRAKE, EXECUTIVE VICE PRESIDENT AND CHIEF OPERATING OFFICER
will be the Account Manager and Advocate for UAFC following the initial
six months. Lorraine simultaneously functions as Advocate for ALICOMP's
clients, which includes escalating responses to clients' concerns and
issues, if required. On two occasions recently, Lorraine was interim
CIO for a Client whose IT executive was recuperating from major health
emergencies. Prior to her appointment at ALICOMP, Lorraine had been
with Amalgamated Life for seven years, where she held the following
positions: Director of Management Planning and Analysis, Vice President
of Administration and Systems, and Vice President of MIS. Lorraine came
to Amalgamated with seven years of executive operational experience,
which includes the position of Director in the New York City Mayor's
Office of Operations.
PROJECT MANAGER FOR UAFC
TOM LAUDATI, SENIOR VICE PRESIDENT, TECHNICAL SERVICES, will be your
project manager for at least the first six months of operation. Tom is
an accomplished information technology outsourcing professional. He is
an information systems management specialist with 20 years experience
in the design, development, maintenance and integration of business
information systems. Tom possesses an in-depth understanding of systems
and applications software, hardware devices across multiple vendor
platforms and displays a thorough understanding of contemporary
communications technology. His information technology outsourcing
experience covers a wide range of industries including insurance,
banking, publishing, transportation, communication, and retail
management.
During his tenure, Tom has been instrumental in the development of the
company's outsourcing strategy and the implementation of its
outsourcing operational imperatives. A business oriented information
systems executive, he possesses the unique ability to bring practical,
cost efficient processing solutions to business problems. His years of
experience in the management of a technical staff make him an ideal
information manager well versed in applying systematic business
solutions to the most complex information processing challenges.
JOHN EURELL, DIRECTOR OF TECHNICAL SERVICES, will be your project
manager following the initial six months. John has serviced Amalgamated
Life since 1978 and has been a data processing professional since 1968.
Originally a Programmer Analyst and later a Systems Programmer, John's
current responsibilities include providing technical support for
Applications Programming, Systems Programming, Data Communications and
the Help Desk. John's software strengths include, but are not limited
to, MVS /OS/390, VM, VSE, CICS/VSE, CICS/MVS, SQL/DS, DB2, COBOL,
ASSEMBLER, C, NCP, EP, BTAM, VTAM, and VSAM.
John has served as project leader on everything from On-line
Enhancements to a Mutual Funds Inventory Control System to the
installation, conversion and maintenance of
8
AGREEMENT NO. 060100 - continued
ERISCO'S CLAIMFACTS AND GROUPFACTS. He created the initial course
outline for CICS Concepts and Facilities at New York University. John
has also taught classes in CICS Coding, CICS Concepts, and an
introductory course in Computer Concepts.
D. COMMITMENT OF SERVICES
1. SYSTEM AVAILABILITY:
No Less than 99.5%
2. DOWN TIME
Nonscheduled:
[X] Not to exceed 30 minute outage at any time.
Scheduled:
[X] Down every other week - 2 to 2-1/2 hours
3. JOB SCHEDULING:
As requested.
4. TECHNICAL SUPPORT
No less than two (2) client knowledgeable Service Technicians on call
at all times.
5. COMPUTER OPERATION COVERAGE:
Staffed with at least one full time dedicated operator and one backup
Operator on each shift - 7 days a week, 24 hours a day.
6. HELP DESK:
Staffed 7 days a week, 24 hours a day with customer service
specialists.
7. PERFORMANCE TUNING:
Analyze CPU Utilization to assure adequate capacity for ever growing
workload.
8. OPERATING SYSTEM SOFTWARE PORTFOLIO:
Assure that UAFC is maintained on supported release levels.
9. CLIENT ADVOCATE:
Lorraine Drake has the responsibility for the following:
[X] To represent UAFC interests and point of view during ALICOMP
strategic planning processes and operational reviews.
[X] To escalate concerns brought to her attention by UAFC in order
to expedite resolutions.
9
AGREEMENT NO. 060100 - continued
E. PARTNERSHIP ASPECTS
UAFC will have the ability and the right to participate in ALICOMP's
decision making which will engage UAFC to exercise a level of control
more consistent with managing its own data center. This will include:
1. The right to review resumes of prospective ALICOMP
employees who are slated to work on UAFC business.
2. The right to participate in the interview and hiring
process of ALICOMP employees who are slated to work
on UAFC business.
3. The right to participate in performance reviews
ALICOMP employees who work on UAFC business.
4. The right to participate in scheduling of downtime,
technology upgrades.
5. The right to add more resources on demand.
6. Access to internal records relative to problems and
resource utilization.
7. The contractual right for UAFC Management staff to be
on our site at UAFC's discretion to review and
participate in operational and technical areas.
Such participation by UAFC shall not affect ALICOMP's ultimate responsibility
for the decisions made or for the operation of the data center or make UAFC in
any way the employer of any ALICOMP employees.
F. QUALITY ASSURANCE MONITORING
ALICOMP utilizes its Management Reporting Systems to assure a
level of services consistent with the goal of meeting or
exceeding performance expectations. Such reporting systems
include the components identified in Section B: MANAGEMENT
PRACTICES, as well as the monthly reporting of the following:
[X] DASD Utilization
[X] Tape Inventory
Cartridges in Storage
Cartridges in Storage Off Site
Cartridge Scratches Available
Reels in Storage
Reels in Storage Off Site
Reel Scratches Available
Reels: Microfiche Tapes in Storage
10
AGREEMENT NO. 060100 - continued
[X] Tape Mounts
[X] Help Desk Reports
Monthly
ALICOMP Universal American Financial Corporation
BY:________________________________ BY:_____________________________________
Date_______________________________ Date:___________________________________
Infocrossing Inc. ALICO Services Corporation
BY:________________________________ BY _____________________________________
Date_______________________________ Date ___________________________________
11
APPENDIX A
MAINFRAME SERVICES - ALICOMP PROVIDED
BASELINE MONTHLY RESOURCE CONSUMPTION FORECAST
----------------------- -------------------------------------------------------
MONTHLY UTILIZATION 2001 2002 2003 2004 2005
----------------------- --------- ---------- --------- -------- ---------
RESOURCE/ENVIRONMENT UNITS GROWTH% 12 12 12 12 12
- ------------------------------------------------------------------------------------------------------------------------------
PMSC Resources
Pennsylvania Life (Raleigh)
MVS CPU PRIORITY - MINUTE 0 0% 0 0 0 0 0
MVS CPU PRIME - MINUTE 0 0% 0 0 0 0 0
MVS CPU CICS - MINUTE 0 0% 0 0 0 0 0
MVS CPU OTHER - MINUTE 6,794 0% 6,794 6,794 6,794 6,794 6,794
DB2 CPU SURCHARGE - MINUTE 0 0% 0 0 0 0 0
DOS CPU PRIORITY - MINUTE 0 0% 0 0 0 0 0
DOS CPU PRIME - MINUTE 0 0% 0 0 0 0 0
DOS CPU CICS - MINUTE 0 0% 0 0 0 0 0
DOS CPU OTHER - MINUTE 0 0% 0 0 0 0 0
TSO CONNECT - HOUR Unlimited Unlimited Unlimited Unlimited Unlimited Unlimited
TAPE MOUNT Unlimited Unlimited Within 24 Tape Address
TAPE EXCP - PER 1,000 Unlimited Unlimited Within 24 Tape Address
TAPE STORAGE - RETAINED 9,000 3% 9,270 9,548 9,835 10,130 10,433
TAPE REMOVED 0 0% 0 0 0 0 0
TAPE RETURNED 0 0% 0 0 0 0 0
DASD EXCP - PER 1,000 Unlimited Unlimited Within 256GB
DASD STORAGE - PER MEGABYTE 108,857 108,857 108,857 108,857 108,857 108,857
LOCAL PAGE PRINT - PER IMAGE 0 0% 0 0 0 0 0
REMOTE PAGE PRINT - PER IMAGE 0 0% 0 0 0 0 0
LOCAL PRINT - PER 1,000 LINES 0 0% 0 0 0 0 0
REMOTE PRINT - PER 1,000 LINES Unlimited 45,912 45,912 45,912 45,912 45,912
LOCAL MICROFICHE - PER 1,000 LINES 0 0% 0 0 0 0 0
American Pioneer (Orlando)
MVS CPU PRIORITY - MINUTE 0 0% 0 0 0 0 0
MVS CPU PRIME - MINUTE 0 0% 0 0 0 0 0
MVS CPU CICS - MINUTE 0 0% 0 0 0 0 0
MVS CPU OTHER - MINUTE 0 0% 0 0 2,317 2,317 2,317
DB2 CPU SURCHARGE - MINUTE 0 0% 0 0 0 0 0
DOS CPU PRIORITY - MINUTE 0 0% 0 0 0 0 0
DOS CPU PRIME - MINUTE 0 0% 0 0 0 0 0
DOS CPU CICS - MINUTE 0 0% 0 0 0 0 0
DOS CPU OTHER - MINUTE 2,317 6% 2,317 2,317 0 0 0
TSO CONNECT - HOUR 0 0% 0 0 0 0 0
TAPE MOUNT Unlimited Unlimited Within 8 Tapes Address
TAPE EXCP - PER 1,000 0 0% 0 0 0 0 0
TAPE STORAGE - RETAINED 1,600 6% 2,865 2,865 2,865 2,865 2,865
TAPE REMOVED 0 0% 0 0 0 0 0
TAPE RETURNED 0 0% 0 0 0 0 0
DASD EXCP - PER 1,000 0 0% 0 0 0 0 0
DASD STORAGE - PER MEGABYTE 149,000 6% 149,000 149,000 149,000 149,000 149,000
LOCAL PAGE PRINT - PER IMAGE 0 0% 0 0 0 0 0
REMOTE PAGE PRINT - PER IMAGE 0 0% 0 0 0 0 0
LOCAL PRINT - PER 1,000 LINES 0 0% 0 0 0 0 0
REMOTE PRINT - PER 1,000 LINES Unlimited Unlimited Unlimited Unlimited Unlimited Unlimited
LOCAL MICROFICHE - PER 1,000 LINES 0 0% 0 0 0 0 0
MONTHLY RESOURCE CONSUMPTION FORECAST
------------------------------------------------------
2006 2007 2008 2009 2010
--------- --------- --------- --------- ---------
RESOURCE/ENVIRONMENT 12 12 12 12 12
- ------------------------------------------------------------------------------------------------
PMSC Resources
Pennsylvania Life (Raleigh)
MVS CPU PRIORITY - MINUTE 0 0 0 0 0
MVS CPU PRIME - MINUTE 0 0 0 0 0
MVS CPU CICS - MINUTE 0 0 0 0 0
MVS CPU OTHER - MINUTE 6,794 6,794 6,794 6,794 6,794
DB2 CPU SURCHARGE - MINUTE 0 0 0 0 0
DOS CPU PRIORITY - MINUTE 0 0 0 0 0
DOS CPU PRIME - MINUTE 0 0 0 0 0
DOS CPU CICS - MINUTE 0 0 0 0 0
DOS CPU OTHER - MINUTE 0 0 0 0 0
TSO CONNECT - HOUR Unlimited Unlimited Unlimited Unlimited Unlimited
TAPE MOUNT Unlimited Within 24 Tape Address
TAPE EXCP - PER 1,000 Unlimited Within 24 Tape Address
TAPE STORAGE - RETAINED 10,746 11,069 11,401 11,743 12,095
TAPE REMOVED 0 0 0 0 0
TAPE RETURNED 0 0 0 0 0
DASD EXCP - PER 1,000 Unlimited Within 256GB
DASD STORAGE - PER MEGABYTE 108,857 108,857 108,857 108,857 108,857
LOCAL PAGE PRINT - PER IMAGE 0 0 0 0 0
REMOTE PAGE PRINT - PER IMAGE 0 0 0 0 0
LOCAL PRINT - PER 1,000 LINES 0 0 0 0 0
REMOTE PRINT - PER 1,000 LINES 45,912 45,912 45,912 45,912 45,912
LOCAL MICROFICHE - PER 1,000 LINES 0 0 0 0 0
American Pioneer (Orlando)
MVS CPU PRIORITY - MINUTE 0 0 0 0 0
MVS CPU PRIME - MINUTE 0 0 0 0 0
MVS CPU CICS - MINUTE 0 0 0 0 0
MVS CPU OTHER - MINUTE 2,317 2,317 2,317 2,317 2,317
DB2 CPU SURCHARGE - MINUTE 0 0 0 0 0
DOS CPU PRIORITY - MINUTE 0 0 0 0 0
DOS CPU PRIME - MINUTE 0 0 0 0 0
DOS CPU CICS - MINUTE 0 0 0 0 0
DOS CPU OTHER - MINUTE 0 0 0 0 0
TSO CONNECT - HOUR 0 0 0 0 0
TAPE MOUNT Unlimited Within 8 Tapes Address
TAPE EXCP - PER 1,000 0 0 0 0 0
TAPE STORAGE - RETAINED 2,865 2,865 2,865 2,865 2,865
TAPE REMOVED 0 0 0 0 0
TAPE RETURNED 0 0 0 0 0
DASD EXCP - PER 1,000 0 0 0 0 0
DASD STORAGE - PER MEGABYTE 149,000 149,000 149,000 149,000 149,000
LOCAL PAGE PRINT - PER IMAGE 0 0 0 0 0
REMOTE PAGE PRINT - PER IMAGE 0 0 0 0 0
LOCAL PRINT - PER 1,000 LINES 0 0 0 0 0
REMOTE PRINT - PER 1,000 LINES Unlimited Unlimited Unlimited Unlimited Unlimited
LOCAL MICROFICHE - PER 1,000 LINES 0 0 0 0 0
APPENDIX B
SOFTWARE RESPONSIBILITY
PRODUCT RENEWAL UAFC ALICOMP NOTE
- --------------------------------------------------------------------------------------------------------------------------
IBM MVS/VSE Monthly Yes
Listcat Plus 5/1/00 Yes
- --------------------------------------------------------------------------------------------------------------------------
Syncsort 7/1/01 Yes
SAMS Not required
CA 4/1/02 Yes All Products
Abendaid 7/31/01 Yes
Xpediter 4/1/01 Yes
Documerge 10/1/99 Cancelled 10/15/99
DCF 10/1/99 Cancelled 10/15/99
3700 10/0199 Cancelled 10/15/99
FDR/CPK 10/1/00 Yes
VPS 3/1/01 Yes
MXG 10/1/00 Yes
- --------------------------------------------------------------------------------------------------------------------------
Xerox 4220 software 3/1/01 Yes
CICS AFCS 7/1/00 Yes
Focus 9/1/00 Yes
Unitech Balancing Cancelled
MAX 7/1/00 Yes
Version Merger 7/1/00 Yes
Vision Builder 6/28/99 Cancelled 6/28/98
Vision Report (DLY-Quickjob) 5/29/00 Yes
Vision Results (DYL-280) 2/2/01 Yes
- --------------------------------------------------------------------------------------------------------------------------
UAFC (Software) Appendix B
APPENDIX B
SOFTWARE RESPONSIBILITY
Licensed Software Description Vendor Committed Entities Used By
- ------------------------------------------------------------------------------------------------------------------------------------
Listcat Plus (6.9) DASD Management Software McKinney PennCorp Financial Inc. All
SAS (6.09E) Programming Tool SAS PennCorp Financial Inc. All
SAS (6.09E) Programming Tool SAS PennCorp Financial Inc. All
SAMS Go (Includes Disk, Compress, Vantage Base DASD Management Software Sterling PennCorp Financial Inc. All
including SAMS Disk reporting and SMS Plus)
CA 3 Year MIPS based License for all products
listed below: Operating System Software CA PennCorp Financial Inc. See Below
CA-ACF2 (6.2) Operating System Software All
CA-DISPATCH (6.0) Automated Operation Package All
CA-DISPATCH NOTEPAD Automated Operation Package All
CA-DISPATCH/PC LTD Automated Operation Package All
CA-ELEVEN (2.2) Automated Operation Package All
CA-ELEVEN VIEWPOINT Automated Operation Package All
CA-FAVER FOR MVS (4.2.3) DASD Management Software All
CA-JCLCHECK (7.0) Automated Operation Package All
CA-LIBRARIAN (BASE+LIB/AM+TSO (4.2) Applicartion Programming Tool All
CA-ONE (5.2) Automated Operation Package All
CA-ONE VIEWPOINT Automated Operation Package All
CA-ONE COPYCAT Automated Operation Package All
CA-OPS/MVSII CICS INTERFACE (4.2) Automated Operation Package All
CA-OPS/MVSII JES 2 (4.2) Automated Operation Package All
CA-SEVEN (3.2) Automated Operation Package All
CA-SEVEN VIEWPOINT Automated Operation Package All
CA-SEVEN NOTEPAD Automated Operation Package All
CA-SEVEN REPORTS Automated Operation Package All
CA-SEVEN SMART CONSOLE Automated Operation Package All
CA-SEVEN REPORT BALANCING Automated Operation Package All
CA-SYSVIEW/E JES COMPONENT (7.1) Operating System Software All
CA-TPX ACL/E OPT (4.1) Network System Software All
CA-TPX-MULTIPLE SESSION MGR (4.1) Network System Software All
CA-INTERTEST W/XA-ESA/W/PL/1 (5.4) Programming Tool All
CA-INTERTEST SYMDUMP OPTION (5.4) Programming Tool All
CA-INTERTEST BATCH (1.2) Programming Tool All
Abandaid (9.0.3) Applicartion Programming Tool Compuware PennCorp Financial Inc. All
XPEDITER TSO (6.4) / CICS (7.0) Applicartion Programming Tool Compuware PennCorp Financial Inc. All
Focus Programming Tool Information B PennCorp Financial Inc. All
MAX (1.5.2) Programming Tool MB Solutions PennCorp Financial Inc. All
MAX (1.5.2) Programming Tool MB Solutions PennCorp Financial Inc. All
Abandaid (9.0.3) Applicartion Programming Tool Compuware PennCorp Financial Inc. All
Performance Solution Software (VSAM I/O) DASD Management Software Softworks PennCorp Financial Inc. All
TMON (2.0) Operating System Software Landmark PennCorp Financial Inc. All
VSE Software
IBM VSE/ESA, Ditto, CICS, VTAM, SORT, Assm
IBM VM new in Jan 2000
Capsil, Dec 1991 Version
Erisco - ClaimFacts, GroupFacts
Compuware - Xpeditor
Document Sciences - Compuset - ends Feb 29, 2000
Macro4 - Tubes VSE, leased
Tubes VM, Licensed - annual
maint starting Mar 2001
VSAMLITE, leased
VSAMTUNE
LOGOUT
Computer Associates - Easytrieve Plus, perpetual
not currently on maint
SunGard - Disaster Recovery Hot Site
Connectivity Systems - TCP/IP
ProCheck Plus - ACIS Laser Check Writer (PC based)
USSI - APPS Policy Printing System (PC based)
Note: Any Software not listed on Page 1 of Appendix B shall be the
responsibility of UAFC.
SCHEDULE A - ADDENDUM FOR ITEM 1A
to Agreement # 060100 (UAFC and Alicomp)
PRICING AND PRICING COMPONENTS
The Fees of Schedule A - Addendum herein will be paid in accordance with
Paragraphs 2, 16, and 17 of Agreement #060100 (UAFC and Alicomp).
1. PRICING COMPONENTS INCLUDED IN FIXED MONTHLY FEE:
- CPU - an IBM CMOS RX4, RX5 or RC6 processor with appropriate cache
and channels. In the event of a processor upgrade, the rate per
CPU minute shall be normalized to be the equivalent of the current
rate which is based on an RX4 processor.
A. For the full months processed during the calendar year 2001,
minimum billing shall be based on baseline (6,400 minutes and 165
Gigabytes of DASD per month at a rate of $15.04 per minute or
$96,256).
- Beginning January 1, 2002 the Monthly Fee will be calculated using
the pricing schedule below:
- There shall be a one time payment for overage utilization for the
period ending December 31, 2001 of $300,000.
- Pricing Schedule:
IF UTILIZATION REACHES (PER MONTH) RATE PER CPU MINUTE DASD ALLOWANCE
- -----------------------------------------------------------------------------------------------------------------
Above 10,370 CPU minutes ** $10.25 per month per Up to 400 Gigabytes
minute ($123.00 annually)
- -----------------------------------------------------------------------------------------------------------------
Between 9,111 and 10,369 CPU minutes $12.21 per month per Up to 300 Gigabytes
minute ($146.50 annually)
- -----------------------------------------------------------------------------------------------------------------
Between 7,501 and 9,111 CPU minutes $13.63 per month per Up to 220 Gigabytes
minute ($163.50 annually)
- -----------------------------------------------------------------------------------------------------------------
Between 4,000 - 7,500 CPU minutes $15.04 per month per Up to 165 Gigabytes
minute ($180.50 annually)
- -----------------------------------------------------------------------------------------------------------------
Between 2,000 - 3,999 CPU minutes $21.71 per month per Up to 120 Gigabytes
minute ($260.50 annually)
- -----------------------------------------------------------------------------------------------------------------
AGREEMENT NO. 060100 Schedule A - Addendum - continued
Below 2,000 CPU minutes (Minimum) Monthly Fee DASD Allowance
- ------------------------------------------------------------------------------------------------------
Year 1 $41,667 Up to 100 Gigabytes
- ------------------------------------------------------------------------------------------------------
Year 2 $41,667 Up to 100 Gigabytes
- ------------------------------------------------------------------------------------------------------
Year 3 $30,000 Up to 100 Gigabytes
- ------------------------------------------------------------------------------------------------------
Year 4 $30,000 Up to 100 Gigabytes
- ------------------------------------------------------------------------------------------------------
Year 5 $20,000 Up to 100 Gigabytes
- ------------------------------------------------------------------------------------------------------
**Commencing January 1, 2002, a new "Baseline Fee" shall reflect UAFC's current
utilization of approximately 15,500 minutes at $10.25 per minute per month or
$158,875.00 and 400 Gigabytes of DASD. Adjustments to this fee will be made on
the mid-month invoices once utilization data is available for the previous
month.
THE TERMS AND CONDITIONS OF THE ORIGINAL SCHEDULE A SHALL CONTINUE IN FULL FORCE
AND EFFECT EXCEPT AS EXPRESSLY MODIFIED HEREIN. IF THERE IS ANY AMBIGUITY
BETWEEN THE TERMS OF SCHEDULE A AND THIS ADDENDUM FOR ITEM LA, THE TERMS OF THIS
ADDENDUM SHALL GOVERN.
IN WITNESS WHEREOF, the parties have executed this Addendum this ______ day of
____________, 2001
ALICOMP Universal American Financial Corporation
BY: ______________________________ BY: ________________________________
Lorraine A. Drake
Date _____________________________ Date: ______________________________
Infocrossing Inc. ALICO Services Corporation
BY: ______________________________ BY _________________________________
Bob Wallach Arthur Kurek
Date _____________________________ Date _______________________________
2
AMENDMENT NUMBER 1 TO AGREEMENT NO. 060100
This Amendment Number 1 to Agreement No. 060100 ("Amendment") entered into the
29th day of July, 2003 is by and between Infocrossing, Inc. and ALICOMP, A
division of ALICARE, Inc., (collectively referred to as "Alicomp"), on the one
hand, and Universal American Financial Corp. ("UAFC"), on the other hand.
Whereas, Agreement Number 060100 was entered into as of September 14, 2000; and
Whereas, Alico Services Corporation ("ASC") guaranteed the financial obligations
of Alicomp under Agreement Number 060100; and
Whereas, Addendum for Item 1A of Schedule A to Agreement Number 060100 was
agreed to by Alicomp and ASC on October 24, 2001 and UAFC on October 29, 2001;
and
Whereas, UAFC has been requested to provide clarification with respect to the
data processing services it is receiving from Alicomp under Agreement Number
060100; and
Whereas, Alicomp is willing to provide such clarification to UAFC.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. ALICOMP is providing data processing services to UAFC and its
subsidiary companies.
2. Included in the list of UAFC subsidiaries as of the date of
this Amendment is the UAFC Canadian company, PennCorp Life
Insurance Company.
3. Schedule A9 of Schedule B to Agreement No. 060100 contains a
provision that the ALICOMP data center is subject to audit by
UAFC's regulators. This right to audit applies to the
regulators of all subsidiaries of UAFC including, but not
limited to, any regulator of PennCorp Life Insurance Company.
IN WITNESS WHEREOF, each of the parties have caused this Amendment to be
executed by its respective duly authorized officer as of the day and year first
above written.
ALICOMP UNIVERSAL AMERICAN FINANCIAL
A Division of ALICARE, Inc. CORPORATION
By: ________________________________ By: _________________________
Title: _____________________________ Title: ______________________
INFOCROSSING, INC. ALICO SERVICES CORPORATION
By: ________________________________ By: _________________________
Title: _____________________________ Title: ______________________
REMOTE COMPUTING
VSE TESTING SYSTEM SERVICES
STATEMENT OF WORK
THIS AGREEMENT between Alicomp, a division of Alicare, Inc., with offices at 2
Christie Heights, Leonia, New Jersey 07605, hereinafter referred to as
"Alicomp," as the party on the one hand, and Universal American Financial
Corporation with offices at 600 Courtland Street, Orlando, Florida 32804,
hereinafter referred to as "UAFC" as the party on the other hand, is being
entered into to provide UAFC with for Remote Computing VSE Test System Services.
Alicomp agrees to provide VSE testing environment services as follows:
PRICING COMPONENTS:
- - ONE TIME SET UP FEES:
Set up VSE test system:
System Software Included
OSA Connection $ 2,500
Master Console 500
Labor: Tech & Operation
($175 X100 hrs) 17,500
TOTAL ONE TIME FEES: $ 20,500
- - MONTHLY FIXED ON-GOING FEES:
DASD (50 Gigs) $ 5,000.
Labor - Tech & Operations $ 3,850
TOTAL MONTHLY FIXED FEES: $ 8,850
- - MONTHLY VARIABLE ON-GOING FEES:
Additional MIPS *
* CPU Utilization rate shall be governed by Agreement #060100 between the
parties as part of the overall utilization. Current rate is $26.65 per CPU
minute based on current processor (IBM RC6) and current utilization for
production environment. To facilitate billing, monthly invoices will be issued
separately for this VSE Test System.
Normal operating hours are twenty-four (24) hours per day, seven (7) days per
week, except for time required to perform maintenance and updates during which
time the services may be unavailable. You will be given a minimum of 24 hours
notice when such maintenance or update is to be performed. Clients who need to
be present at ALICOMP's location must give 24 hours notice.
Neither party will divulge any information learned by it concerning the other or
its customers without the prior written consent of the other unless it learned
such information under circumstances not requiring confidentiality or the other
party makes the information available to the general public. ALICOMP will not
use or copy any software written by Client. Client warrants and represents that
it has the title or right to said software to run it on Alicomp's facility and
will defend and hold Alicomp harmless from and against any and all claims,
suits, damages and costs including reasonable attorney's fees in any instance
where Alicomp is accused of breaching any third party's copyright or other right
or title to the software.
Client will not settle any such suit without Alicomp's prior written consent
unless such settlement includes a complete general release for Alicomp.
The services provided in this agreement, effective November 2003, shall be
co-terminus with the VSE services provided under Agreement #060100, effective
September 2000 as amended.
Remote Computing - VSE Test System Statement of Work
Client acknowledges and agrees that ALICOMP shall in no event be liable for
consequential or incidental damages irrespective of whether or not the same are
or were foreseeable and that its liability shall be limited, in any event, to
replacing any lost or damaged materials, provided Client has maintained
duplicates of the lost or damaged materials. If Client fails or refuses to
provide the duplicate data, then ALICOMP shall have no liability or
responsibility to replace lost or damaged data. In any event, the total
liability of ALICOMP under this Agreement shall not exceed the fees paid by
Client to ALICOMP in the immediately preceding 30 days.
EXCEPT AS EXPRESSLY STATED HEREIN THERE ARE NO WARRANTIES. ALL WARRANTIES
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY OR WARRANTIES OF
FITNESS FOR PARTICULAR USE OR PURPOSE ARE EXPRESSLY WAIVED. CUSTOMER SHALL BE
LIMITED TO THE REMEDIES PROVIDED FOR HEREIN.
Client acknowledges and agrees that Client is responsible for scheduling backups
or making arrangements for backups of any private volumes of DASD that client
may be using. ALICOMP shall, however, be responsible for Client data that
resides in a shared environment.
This Agreement shall be construed and interpreted in accordance with laws of the
State of New York without reference to its conflict of laws provisions. If any
term of the Agreement shall be held to be unenforceable the remainder of the
Agreement shall remain in full force and effect except that if Client fails to
pay its fees or is relieved of its obligation to make payment for any reason
other than a material breach by Alicomp, Alicomp shall have not responsibility
or liability to provide services.
As of the signing of this Agreement ALICOMP is not aware of any sales or use tax
with regard to the providing of computer timesharing services. However, if any
jurisdiction requires a sales or use tax be imposed on this type of service in
the future, Client will be responsible for payment of such tax, unless Client
presents appropriate documentation of resale or exemption.
Neither party may assign its rights nor delegate its duties under this Agreement
without obtaining the prior written consent of the other party, such consent not
to be unreasonably withheld except that ALICOMP shall have the unilateral right
to move the operation to another facility at any time with 30 days prior notice.
ALICOMP will remain the Contractor. ALICOMP will assume all costs associated
with such move.
Client understands that any work requested from ALICOMP will be billed monthly
at the above prices. Client agrees to make payments monthly within 30 days of
the date of the invoice. Invoices not paid within 30 days shall bear interest at
the maximum legal rate allowed by law retroactive to the date of the invoice.
Any claim that Alicomp has failed to perform shall be made within ten days of
the claimed failure. The claim shall be in writing addressed to the following
address and must contain the specifics of the claim. Alicomp shall have ten days
to remedy the alleged failure or to establish that the claim is without merit,
in whole or in part.
2
ALICOMP
2 Christie Heights
Leonia, New Jersey 07605
Attention: Arthur Kurek
The failure of Alicomp to insist upon strict performance shall not be deemed a
continuing waiver and Alicomp may insist upon strict performance of any term of
the Agreement at any time.
Remote Computing - VSE Test System Statement of Work
This Agreement is the product of arm's length negotiation between the parties
and no inference based upon its being drafted by either party shall be made.
This Agreement states the entire understanding between the parties concerning
the subject matter thereof and no agreement or representation, which is not
expressly contained herein, shall be deemed to have survived.
This Agreement may not be changed, except in writing, evidenced by mutual
agreement of both ALICOMP and Client.
Any notices to be provided hereunder shall be sent by Registered Mail Return
Receipt Requested and shall be addressed as follows or as may later be
designated in writing:
If to ALICOMP:
ALICOMP
2 Christie Heights
Leonia, New Jersey 07605
Attention: Arthur Kurek
If to Client:
Universal American Financial Corporation
600 Courtland Street
Orlando, Florida 32804
Attention: George Eldridge
Notice shall be deemed to have been given the earlier of three days after
mailing or upon the date indicated on the signed return receipt. Any controversy
or claim arising out of or relating to this contract, or the breach thereof,
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association to be held in New York City before
a single arbitrator. Any proceeding to enforce the arbitration award shall be
brought in either the Supreme Court of the State of New York County of New York
or the United States District Court for the Southern District of New York to
which courts the parties grant personal jurisdiction. Each party shall bear its
own costs of the arbitration including legal fees.
3
IN WITNESS WHEREOF, the parties have executed this Addendum this
__________ day of November, 2003
ALICOMP Universal American Financial Corporation
BY: ______________________________ BY: ______________________________
Lorraine Drake
Date ______________________________ Date: _____________________________
ALICO Services Corporation
BY: _________________________________
Arthur Kurek
Date _________________________________
4