exv10w1



 





Exhibit 10.1




INFORMATION TECHNOLOGY

SERVICES AGREEMENT




by and between




SYMETRA LIFE 
INSURANCE COMPANY




and




ACS COMMERCIAL 
SOLUTIONS, INC.




October 28, 2004




CONFIDENTIAL


[***]
Confidential Treatment Requested



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE
	ARTICLE 1 GUIDING PRINCIPLES, RELATIONSHIP MANAGEMENT AND INTERPRETATION 
	 	 	1	 
	 
	 	 	 	 
	1.1 Guiding Principles 
	 	 	1	 
	1.1.1 Enhanced IT Capabilities and Effectiveness 
	 	 	1	 
	1.1.2 Reduce IT Costs 
	 	 	2	 
	1.1.3 Improve and Maintain Technology 
	 	 	2	 
	1.1.4 Focus on Core Competencies 
	 	 	2	 
	1.1.5 Improve Business Processes 
	 	 	2	 
	1.2 Relationship Management 
	 	 	2	 
	1.2.1 IT Outsourcing Committee 
	 	 	2	 
	1.2.2 Project Executives 
	 	 	3	 
	1.2.3 Service Delivery Managers 
	 	 	3	 
	1.2.4 Management Functions 
	 	 	3	 
	1.3 Agreement Structure 
	 	 	4	 
	1.3.1 Master Agreement 
	 	 	4	 
	1.3.2 Country Agreements 
	 	 	4	 
	1.3.3 Affiliates of Symetra 
	 	 	4	 
	1.3.4 Effect of Certain Provisions 
	 	 	4	 
	1.4 Interpretation 
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 2 SERVICES 
	 	 	5	 
	 
	 	 	 	 
	2.1 General 
	 	 	5	 
	2.1.1 Commencement of Services 
	 	 	5	 
	2.1.2 Locations for Performance of Services 
	 	 	5	 
	2.2 Service Tower Services 
	 	 	6	 
	2.2.1 Initial Service Tower Services 
	 	 	6	 
	2.2.2 SLRs for Service Towers 
	 	 	6	 
	2.2.3 Symetra Sites 
	 	 	8	 
	2.2.4 Governance Regarding Relief Events 
	 	 	8	 
	2.3 Transition Services 
	 	 	9	 
	2.3.1 Transition Plan 
	 	 	9	 
	2.3.2 Progress Reports 
	 	 	9	 
	2.3.3 Financial Responsibility 
	 	 	9	 
	2.4 Purchasing Agent Services 
	 	 	9	 
	2.5 Technology Management and Security Services 
	 	 	10	 
	2.5.1 General 
	 	 	10	 
	2.5.2 Technology Upgrades and Enhancements 
	 	 	10	 
	2.5.3 ACS’ Technology Refresh Requirements 
	 	 	10	 
	2.5.4 Technology Planning and Innovation 
	 	 	10	 
	2.5.5 Asset Management 
	 	 	11	 
	2.5.6 Shared Resources 
	 	 	11	 
	2.5.7 Disaster Recovery 
	 	 	11	 






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	 	 	PAGE
	2.6 Standards and Procedures Manual 
	 	 	12	 
	2.6.1 Development of Manual 
	 	 	12	 
	2.6.2 Contents 
	 	 	13	 
	2.7 Service Compatibility 
	 	 	13	 
	2.8 In-Scope Service Requests 
	 	 	14	 
	2.9 Out-of-Scope Work Orders 
	 	 	14	 
	2.9.1 Requirements and Process 
	 	 	14	 
	2.9.2 Potential Limitation on Future Contracts 
	 	 	15	 
	2.10 Extraordinary Events or Circumstances 
	 	 	15	 
	2.11 Reports and Other Resource Materials 
	 	 	16	 
	2.11.1 General 
	 	 	16	 
	2.11.2 Media 
	 	 	16	 
	2.12 Critical Milestones 
	 	 	16	 
	2.12.1 Designation of Critical Milestones 
	 	 	16	 
	2.12.2 Failure to Timely Achieve a Critical Milestone 
	 	 	16	 
	2.13 End-User Satisfaction and Communication 
	 	 	16	 
	2.14 Cooperation with Symetra and Third Parties 
	 	 	17	 
	2.15 Movement of an ACS Facility 
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 3 PERSONNEL 
	 	 	17	 
	 
	 	 	 	 
	3.1 ACS Personnel 
	 	 	17	 
	3.1.1 ACS Key Personnel 
	 	 	17	 
	3.1.2 Additional Personnel Requirements 
	 	 	19	 
	3.1.3 Minimum Proficiency Levels 
	 	 	19	 
	3.1.4 Specialized Personnel 
	 	 	19	 
	3.1.5 Training 
	 	 	19	 
	3.1.6 Supervision and Conduct of ACS Personnel 
	 	 	19	 
	3.2 Symetra Personnel 
	 	 	20	 
	3.3 Solicitation of Personnel 
	 	 	20	 
	3.4 Personnel Restriction 
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 4 ASSETS AND THIRD-PARTY CONTRACTS 
	 	 	21	 
	 
	 	 	 	 
	4.1 Symetra Retained Equipment 
	 	 	21	 
	4.1.1 General 
	 	 	21	 
	4.1.2 Third-Party Approvals 
	 	 	21	 
	4.1.3 Return of Symetra Equipment 
	 	 	21	 
	4.2 ACS Equipment 
	 	 	21	 
	4.2.1 Use of ACS Equipment by ACS Employees 
	 	 	22	 
	4.2.2 Provision of ACS Equipment to Symetra 
	 	 	22	 
	4.2.3 Installation of ACS Equipment 
	 	 	22	 
	4.2.4 Maintenance of ACS Equipment 
	 	 	22	 
	4.3 Software 
	 	 	22	 
	4.3.1 ACS-Licensed Third Party Software 
	 	 	22	 
	4.3.2 Symetra-Licensed Third Party Software 
	 	 	23	 
	4.3.3 Category 5 Software 
	 	 	24	 






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	 	 	PAGE
	4.3.4 Category 6 Software
	 	 	24	 
	4.4 Assigned Contracts 
	 	 	25	 
	4.5 Managed Contracts 
	 	 	25	 
	4.6 Further Assurances 
	 	 	25	 
	4.7 Use of Symetra Facilities 
	 	 	25	 
	4.7.1 Specific Hardware and Carrier Charges 
	 	 	25	 
	4.7.2 Access to Personnel and Information 
	 	 	26	 
	4.7.3 Other Facility-Related Obligations 
	 	 	26	 
	 
	 	 	 	 
	ARTICLE 5 RETAINED AUTHORITIES 
	 	 	26	 
	 
	 	 	 	 
	5.1 General 
	 	 	26	 
	5.2 Specific Retained Authorities 
	 	 	26	 
	5.2.1 Strategic and Operational Planning 
	 	 	26	 
	5.2.2 Service Design and Delivery 
	 	 	27	 
	5.2.3 Moves, Adds and Changes 
	 	 	27	 
	5.2.4 Business Process Reengineering 
	 	 	27	 
	5.2.5 Contract Management 
	 	 	28	 
	5.2.6 Budget Management 
	 	 	28	 
	5.2.7 Validation and Verification 
	 	 	28	 
	5.2.8 Review and Acceptance 
	 	 	28	 
	 
	 	 	 	 
	ARTICLE 6 FEES AND PAYMENT TERMS 
	 	 	29	 
	 
	 	 	 	 
	6.1 Fees 
	 	 	29	 
	6.1.1 General 
	 	 	29	 
	6.1.2 Transition Services 
	 	 	29	 
	6.1.3 Annual Services Fees 
	 	 	29	 
	6.1.4 Service Rates 
	 	 	29	 
	6.1.5 Taxes 
	 	 	30	 
	6.1.6 Currency 
	 	 	30	 
	6.2 Adjustments to Fees 
	 	 	31	 
	6.2.1 Terminated Services 
	 	 	31	 
	6.2.2 Fee Reductions 
	 	 	31	 
	6.2.3 Baselines and ARCs and RRCs 
	 	 	31	 
	6.2.4 Addition or Divestiture of Affiliates and Business Ventures
	 	 	32	 
	6.2.5 Set Off 
	 	 	33	 
	6.3 Invoices 
	 	 	33	 
	6.3.1 Services 
	 	 	33	 
	6.3.2 Other Services 
	 	 	33	 
	6.4 Disputed Amounts 
	 	 	33	 
	 
	 	 	 	 
	ARTICLE 7 RECORDKEEPING AND AUDIT RIGHTS 
	 	 	34	 
	 
	 	 	 	 
	7.1 Recordkeeping 
	 	 	34	 
	7.2 Operational Audits 
	 	 	34	 
	7.3 Financial Audits 
	 	 	35	 






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	 	 	PAGE
	7.4 Sarbanes-Oxley Compliance 
	 	 	35	 
	7.4.1 General 
	 	 	35	 
	7.4.2 SAS 70 Type II Audits 
	 	 	36	 
	7.4.3 Results of Inquiries and Corrective Plan 
	 	 	36	 
	7.4.4 Subcontractors 
	 	 	37	 
	7.4.5 Confidential Information 
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS 
	 	 	37	 
	 
	 	 	 	 
	8.1 ACS Representations, Warranties and Covenants 
	 	 	37	 
	8.1.1 Performance of the Services 
	 	 	37	 
	8.1.2 Viruses and Disabling Devices 
	 	 	37	 
	8.1.3 Conflicts of Interest 
	 	 	37	 
	8.1.4 Financial Condition and Information 
	 	 	39	 
	8.1.5 Litigation and Service of Process 
	 	 	39	 
	8.1.6 Proprietary Rights Infringement 
	 	 	39	 
	8.1.7 Legal and Corporate Authority 
	 	 	39	 
	8.1.8 Violations 
	 	 	40	 
	8.1.9 Information Furnished to Symetra 
	 	 	40	 
	8.1.10 Previous Contracts 
	 	 	40	 
	8.1.11 Completeness of Due Diligence Activities 
	 	 	40	 
	8.2 Symetra’s Representations, Warranties and Covenants 
	 	 	40	 
	8.2.1 Legal Authority 
	 	 	40	 
	8.2.2 Warranty Disclaimer 
	 	 	40	 
	8.2.3 Proprietary Rights Infringement 
	 	 	41	 
	8.3 General Warranty Disclaimer 
	 	 	41	 
	8.4 Material Misstatements and Omissions 
	 	 	41	 
	 
	 	 	 	 
	ARTICLE 9 TERM AND TERMINATION 
	 	 	41	 
	 
	 	 	 	 
	9.1 Term 
	 	 	41	 
	9.1.1 Initial Term 
	 	 	41	 
	9.1.2 Renewal Terms 
	 	 	41	 
	9.1.3 Symetra-Initiated Annual Renegotiation 
	 	 	41	 
	9.2 Early Termination 
	 	 	42	 
	9.2.1 For Convenience 
	 	 	42	 
	9.2.2 Change in Control of ACS 
	 	 	42	 
	9.2.3 Termination for Force Majeure Event 
	 	 	42	 
	9.2.4 HIPAA 
	 	 	44	 
	9.3 Events of Default 
	 	 	44	 
	9.4 Rights and Remedies of ACS Upon Default of Symetra 
	 	 	45	 
	9.5 Rights and Remedies of Symetra upon Default of ACS 
	 	 	46	 
	9.6 Non-Exclusive Remedies 
	 	 	46	 
	9.7 Survival 
	 	 	46	 






-iv-









 






	 	 	 	 	 
	 	 	PAGE
	ARTICLE 10 DISENTANGLEMENT 
	 	 	46	 
	 
	 	 	 	 
	10.1 General Obligations 
	 	 	46	 
	10.2 Disentanglement Period 
	 	 	47	 
	10.3 Specific Obligations 
	 	 	47	 
	10.3.1 Full Cooperation, Information and Knowledge Transfer 
	 	 	47	 
	10.3.2 Third-Party Authorizations 
	 	 	48	 
	10.3.3 Transfer of Assets 
	 	 	48	 
	10.3.4 Assignment of Contracts 
	 	 	48	 
	10.3.5 Delivery of Documentation and Data 
	 	 	48	 
	10.3.6 Hiring of Employees 
	 	 	48	 
	10.4 Preparation for Disentanglement 
	 	 	49	 
	10.4.1 Complete Documentation 
	 	 	49	 
	10.4.2 Maintenance of Assets 
	 	 	49	 
	10.4.3 Advance Written Consents 
	 	 	49	 
	10.4.4 All Necessary Cooperation and Actions 
	 	 	50	 
	10.4.5 Payment for Disentanglement Services 
	 	 	50	 
	 
	 	 	 	 
	ARTICLE 11 LIMITATIONS ON LIABILITY 
	 	 	50	 
	 
	 	 	 	 
	11.1 Cap On Liability 
	 	 	50	 
	11.2 Recoverable Damages 
	 	 	51	 
	11.3 Non-Direct Damages 
	 	 	51	 
	11.4 Symetra Exceptions from the Limitations on Liability 
	 	 	52	 
	11.5 ACS Exceptions from the Limitations on Liability 
	 	 	52	 
	11.6 Costs of Cure 
	 	 	52	 
	11.7 Attorneys’ Fees 
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 12 PROPRIETARY RIGHTS 
	 	 	53	 
	 
	 	 	 	 
	12.1 Work Product 
	 	 	53	 
	12.1.1 Symetra Sole Owner 
	 	 	53	 
	12.1.2 ACS License to Use 
	 	 	53	 
	12.1.3 Intellectual Property 
	 	 	53	 
	12.1.4 ACS Underlying and Derivative Works 
	 	 	54	 
	12.1.5 Third-Party Underlying and Derivative Works 
	 	 	54	 
	12.2 Rights and Licenses 
	 	 	54	 
	12.3 Symetra Data 
	 	 	54	 
	12.4 Infringement 
	 	 	54	 
	12.5 Cooperation 
	 	 	54	 
	 
	 	 	 	 
	ARTICLE 13 SECURITY AND CONFIDENTIALITY 
	 	 	55	 
	 
	 	 	 	 
	13.1 Security 
	 	 	55	 
	13.1.1 General 
	 	 	55	 
	13.1.2 Information Access 
	 	 	55	 
	13.1.3 Background Checks 
	 	 	55	 






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	 	 	PAGE
	13.1.4 Other Policies
	 	 	56	 
	13.2 Confidential Information 
	 	 	56	 
	13.2.1 Non-Disclosure 
	 	 	56	 
	13.2.2 Disclosure Requests 
	 	 	56	 
	13.2.3 Permitted Disclosures 
	 	 	56	 
	13.3 Legally Required Disclosures 
	 	 	57	 
	13.4 Notification and Mitigation 
	 	 	57	 
	13.5 Return of Confidential Information 
	 	 	57	 
	13.6 Injunctive Relief
	 	 	58	 
	 
	 	 	 	 
	ARTICLE 14 LEGAL COMPLIANCE 
	 	 	58	 
	 
	 	 	 	 
	14.1 Compliance with All Laws and Regulations 
	 	 	58	 
	14.2 ACS Permits, Licenses and Assistance 
	 	 	58	 
	14.3 Hazardous Materials 
	 	 	58	 
	14.4 HIPAA 
	 	 	59	 
	14.4.1 General 
	 	 	59	 
	14.4.2 Security Requirements 
	 	 	59	 
	14.5 California Personal Information Statute 
	 	 	59	 
	14.6 Data Protection 
	 	 	59	 
	 
	 	 	 	 
	ARTICLE 15 INDEMNIFICATION 
	 	 	61	 
	 
	 	 	 	 
	15.1 By ACS 
	 	 	61	 
	15.1.1 Intellectual Property 
	 	 	61	 
	15.1.2 Personal Injury, Property Damage and Other Damage 
	 	 	61	 
	15.1.3 Third-Party Contracts 
	 	 	62	 
	15.1.4 ACS Employees 
	 	 	62	 
	15.1.5 Hazardous Material 
	 	 	62	 
	15.1.6 Information Disclosure 
	 	 	62	 
	15.1.7 Security Breaches 
	 	 	62	 
	15.1.8 Non-Performance 
	 	 	62	 
	15.1.9 Taxes 
	 	 	63	 
	15.2 By Symetra 
	 	 	63	 
	15.2.1 Intellectual Property 
	 	 	63	 
	15.2.2 Managed and Assigned Contracts 
	 	 	63	 
	15.2.3 Hazardous Materials 
	 	 	63	 
	15.3 Indemnification Procedures 
	 	 	63	 
	15.3.1 General 
	 	 	63	 
	15.3.2 Settlement of Claims 
	 	 	64	 
	15.3.3 Defense Declined 
	 	 	64	 
	15.3.4 Defense Accepted 
	 	 	64	 
	 
	 	 	 	 
	ARTICLE 16 INSURANCE 
	 	 	64	 
	 
	 	 	 	 
	16.1 Required Insurance Coverages 
	 	 	64	 






-vi-









 






	 	 	 	 	 
	 	 	PAGE
	16.2 General Provisions 
	 	 	65	 
	16.2.1 Evidence of Insurance 
	 	 	65	 
	16.2.2 Claims-Made Coverage 
	 	 	65	 
	16.2.3 Notice of Cancellation or Change of Coverage 
	 	 	65	 
	16.2.4 Qualifying Insurers 
	 	 	65	 
	16.2.5 Waiver of Subrogation 
	 	 	65	 
	 
	 	 	 	 
	ARTICLE 17 PROBLEM RESOLUTION 
	 	 	66	 
	 
	 	 	 	 
	17.1 Problem Resolution Process 
	 	 	66	 
	17.1.1 Administrative-Level Performance Review 
	 	 	66	 
	17.1.2 IT Outsourcing Committee Performance Review 
	 	 	66	 
	17.1.3 Executive-Level Performance Review 
	 	 	66	 
	17.1.4 Voluntary, Non-Binding Mediation 
	 	 	66	 
	17.2 Continued Performance; No Tolling of Cure Periods 
	 	 	66	 
	17.3 De Minimis Problems 
	 	 	66	 
	17.4 Equitable Relief
	 	 	67	 
	 
	 	 	 	 
	ARTICLE 18 USE OF SUBCONTRACTORS 
	 	 	67	 
	 
	 	 	 	 
	18.1 Approval; Key Subcontractors 
	 	 	67	 
	18.2 Subcontractor Agreements 
	 	 	67	 
	18.3 Liability and Replacement 
	 	 	67	 
	18.4 Direct Agreements 
	 	 	68	 
	 
	 	 	 	 
	ARTICLE 19 MISCELLANEOUS 
	 	 	68	 
	 
	 	 	 	 
	19.1 Defined Terms 
	 	 	68	 
	19.2 Third-Party Beneficiaries 
	 	 	68	 
	19.3 Use of Symetra Name 
	 	 	68	 
	19.4 Captions; References; Terminology 
	 	 	68	 
	19.5 Assignment 
	 	 	68	 
	19.6 Notices 
	 	 	68	 
	19.7 Amendments; Waivers 
	 	 	69	 
	19.8 Relationship Between the Parties 
	 	 	69	 
	19.9 Access to Personnel and Information 
	 	 	70	 
	19.10 Severability 
	 	 	70	 
	19.11 Counterparts; Faxed Signatures 
	 	 	70	 
	19.12 Governing Law and Venue 
	 	 	70	 
	19.13 Arbitration 
	 	 	71	 
	19.14 Expenses 
	 	 	71	 
	19.15 Import/Export 
	 	 	71	 
	19.16 Waiver of UCITA 
	 	 	71	 
	19.17 Benefits of Agreement 
	 	 	71	 
	19.18 Entire Agreement 
	 	 	72	 






-vii-









 






SCHEDULES




	 	 	 
	Schedule 1

	 	Relationship Management
	Schedule 2

	 	Service Tower Services SOW
	Schedule 2A

	 	Cross-Functional Services SOW
	Schedule 2B

	 	Data Center Services SOW
	Schedule 2C

	 	Distributed Computing Services SOW
	Schedule 2D

	 	Data Network Services SOW
	Schedule 2E

	 	Voice Communications Services SOW
	Schedule 2F

	 	Help Desk Services SOW
	Schedule 2G

	 	Output Processing SOW
	Schedule 2H

	 	Content Management SOW
	Schedule 3

	 	Fees
	Schedule 4

	 	Service Rates
	Schedule 5

	 	Fee Reductions
	Schedule 6

	 	Termination Fee
	Schedule 7

	 	Affiliates of Symetra






ATTACHMENTS




	 	 	 
	Attachment A

	 	Benchmarking Procedures
	Attachment B

	 	Symetra Sites
	Attachment C

	 	Transition Plan
	Attachment D

	 	Form of In-Scope Service Request
	Attachment E

	 	ACS Key Personnel
	Attachment F

	 	ACS’ Technology Refresh Requirements
	Attachment G

	 	Shared Resources
	Attachment H

	 	Assigned Contracts
	Attachment I

	 	Managed Contracts
	Attachment J

	 	Invoice Format
	Attachment K

	 	HIPAA Terms
	Attachment L

	 	Software Schedule
	Attachment M

	 	Offshore Services
	Attachment N

	 	Required Insurance Coverage
	Attachment O

	 	Approved Subcontractors
	Attachment P

	 	Definitions
	Attachment Q

	 	Approved Auditors






-viii-









 






INFORMATION
TECHNOLOGY SERVICES AGREEMENT




     This
Information Technology Services Agreement (the “Agreement”) is entered into as of
this 28th
day of October, 2004 (the “Effective Date”), by and between Symetra Life
Insurance Company, a Washington corporation with corporate offices at 5069 154th Place
NE, Redmond, Washington 98052 (“Symetra”), and ACS Commercial Solutions, Inc., a Nevada corporation
with corporate offices at 2828 N. Haskell, Dallas, Texas 75204 (“ACS”) (Symetra and ACS sometimes
are collectively referred to herein as the “Parties”).


RECITALS




     WHEREAS,
on July 16, 2004, Symetra issued to ACS a Request for Proposal for Information
Technology Outsourcing (the “RFP”),



     WHEREAS,
ACS submitted to Symetra a response dated September 17, 2004 (as the same may have
been supplemented and/or revised, the “ACS Bid”), and represented to Symetra that it had the
expertise, personnel, products, services and skills required to meet the requirements of Symetra
as reflected in the RFP;



     WHEREAS,
in reliance on the representations made by ACS in the ACS Bid and subsequent
discussions, Symetra selected ACS over other prospective technology providers to provide Symetra
with outsourced IT services; and



     WHEREAS,
Symetra and ACS want to specify the terms and conditions under which ACS will
provide such outsourced IT services to Symetra.



     NOW,
THEREFORE, in consideration of the representations, warranties, promises and covenants
contained herein, and other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, the Parties, intending to be legally bound, agree to the
foregoing and as follows:



ARTICLE 1

GUIDING PRINCIPLES, RELATIONSHIP

MANAGEMENT AND INTERPRETATION




     1.1
Guiding Principles. The principles identified below
(“Guiding Principles”) include
principles that the Parties have determined to be important to ensure the success of their
relationship. The Guiding Principles function as “constitutional” statements regarding the
Parties’ overall intentions for this Agreement. If any term or condition of this Agreement is
ambiguous or unclear, or if the Parties did not anticipate a particular issue, the Parties shall
refer to and apply the Guiding Principles to resolve and/or address the ambiguous, unclear and/or
unanticipated issue.



          1.1.1 Enhanced IT Capabilities and Effectiveness. Services will be provided in a manner that
enhances Symetra’s ability to deliver high-quality, cost-effective services both internally within
Symetra and externally to its customers with minimal interruptions in, and adverse impacts on,
Symetra’s delivery of services to its customers. Technology utilized by ACS will provide Symetra
with industry-leading levels of functionality and performance.




 









 








          1.1.2 Reduce IT Costs. Cost reduction is a key objective for Symetra in securing Services from
ACS. ACS will continuously implement new, cost-effective technologies in order to further reduce
the overall cost of Services to Symetra.




          1.1.3 Improve and Maintain Technology. ACS will implement new technologies to deliver the
Services to Symetra in order to maintain competitiveness in the quality and scope of Services
available to Symetra and to take advantage of market cost efficiencies.




          1.1.4 Focus on Core Competencies. By outsourcing the Services to ACS and leveraging ACS’ core
competencies, Symetra will be able to focus more of its internal resources on providing services
to its market constituents and improve the levels of service in the outsourced areas.




          1.1.5 Improve Business Processes. Symetra will learn best practices from ACS which will
allow Symetra to improve its business processes, including improving the efficiencies of delivering
services to its own customers.




     1.2 Relationship Management. The relationship between the Parties shall be managed as
described in this Section and in Schedule 1.



          1.2.1 IT Outsourcing Committee. A joint IT outsourcing committee, comprised of senior
business and technology staff from Symetra and ACS (the
“IT 
Outsourcing Committee”), shall be
responsible for providing input and advice concerning the overall business and technology
relationship between the Parties including, without limitation, the effectiveness and value of the
Services provided by ACS and guidance to improve such effectiveness and value. The IT Outsourcing
Committee shall be chaired by a Symetra representative, and the ACS members shall include the ACS
Project Executive and appropriate ACS executives and managers. The IT Outsourcing Committee shall
meet quarterly at a Symetra facility, or more often at Symetra’s request, to discuss:





               (a) the status of each Service Tower and any Problems or difficulties experienced by a
Party in transitioning to and/or delivering the Services;




               (b) ACS’ compliance with the SLRs;




               (c) all financial arrangements, including invoices submitted by ACS;




               (d) Symetra’s satisfaction with the ACS Key Personnel;




               (e) in accordance with Section 2.5.4, innovative and emerging ideas and strategies for
more effective use of IT and related business transformation services and how such
innovative ideas and strategies can more effectively impact the
enterprise transformation
of Symetra’s businesses;




               (f) ACS’ future financial and operational plans relating to the business unit that
fulfills ACS’ obligations to provide Services under this Agreement, to the extent
discloseable under applicable law; and




               (g) such other matters as one Party may bring to the other.



-2-









 





          For each such meeting, ACS shall prepare a suggested agenda, with active input from the
Symetra Project Executive. ACS shall make available its senior management personnel to answer
questions from Symetra’s senior management personnel regarding the agenda items for such meeting.
Further, the IT Outsourcing Committee may invite industry thought leaders to participate in such
meetings to facilitate information exchange and increase the value of the strategies discussed.




          1.2.2 Project Executives. Each Party shall designate an individual (for Symetra, the
“Symetra Project Executive”, and for ACS, the “ACS Project Executive”), who shall be each Party’s
primary point of contact for all matters relating to this Agreement throughout the Term. The ACS
Project Executive shall be: (a) knowledgeable about the Services and each of ACS’ and its
Subcontractors’ products and services; (b) experienced at running information technology systems
and networks of a size and scope minimally equal in size and scope to those of Symetra; (c) otherwise acceptable to Symetra; and (d) assigned (in the case of each ACS Project Executive) to Symetra
for a minimum period of twenty-four (24) months, except in cases involving: (i) a voluntary or For
Cause termination; (ii) removal at Symetra’s request; or (iii) inability to work due to death,
disability or illness. Without limiting any other rights and remedies that may then be available to
Symetra, if ACS fails to comply with the terms of the foregoing subsection (d), ACS represents to
Symetra that Symetra shall have the right to communicate dissatisfaction and impact to ACS senior
operations personnel through the customer satisfaction survey process. Symetra shall have the
right to pre-approve any candidate proposed by ACS to serve as the ACS Project Executive, and to
require ACS to remove and replace any previously appointed ACS Project Executive, and ACS promptly
shall comply with any such Symetra request. The ACS Project Executive shall have overall
responsibility for directing all of ACS’ activities hereunder and shall be vested by ACS with all
necessary authority to act for ACS in connection with all aspects of this Agreement. ACS and
Subcontractor staff shall be managed in the performance of their duties by the ACS Project
Executive. Upon ACS’ request, Symetra will provide a written evaluation of the ACS Project
Executive’s performance that ACS may elect to consider when determining the ACS Project Executive’s
salary and bonus compensation.




          1.2.3 Service Delivery Managers. Each Party shall designate an individual to serve as that
Party’s service delivery manager for each Service Tower (for Symetra, each, a “Symetra Service
Delivery Manager”, and for ACS, each, an “ACS Service Delivery Manager”). The primary role of the
service delivery managers is to take ownership of the day-to-day operational relationships between
Symetra’s information technology service delivery and Symetra’s business. This involves managing
and coordinating the appropriate Symetra resources across all information technology services,
including resources and services provided by ACS, to ensure optimal service delivery and ensure
that all issues raised are resolved promptly and in accordance with the applicable SLR. The
Symetra Service Delivery Manager (or his or her designee) for a particular Service Tower shall be
the only Symetra representative authorized to request chargeable services from ACS with respect to
that Service Tower, and ACS acknowledges that it shall not have the right to bill or collect from
Symetra or any of its Affiliates any amounts ACS claims it is owed for otherwise chargeable
services provided without the written authorization of the applicable Symetra Service Delivery
Manager.




          1.2.4 Management Functions. At Symetra’s request from time-to-time in order to more
efficiently administer certain functional aspects of the Parties’ relationship, each Party shall
designate individual(s) to address various subject matters including, without limitation,
performance and process management, architecture and technology management, finance/contract
management, enterprise standards management, sourcing relationship management, quality assurance
management, business unit management, and transition management, with such roles and
responsibilities of these individuals as may be determined by the Parties at such time.





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     1.3 Agreement
Structure.



      
    1.3.1 Master Agreement. This Agreement provides a
framework for, and the general terms that
are applicable to, the Services that ACS will provide to Symetra under this Agreement.




          1.3.2 Country Agreements. If Symetra wants to receive from ACS, and ACS agrees to provide to
Symetra, Services in countries that are located outside the United
States (each, a “New Country”),
the terms of this Agreement shall apply to Services delivered in such New Country, except that the
local Affiliates of each Party in such New Country shall execute an agreement that identifies any
country-unique terms (and/or deviations from the terms of this Agreement) that are required by
local laws in such New Country and addresses appropriate pricing for the Services to be provided in
such New Country (each, a “Country Agreement”).




    
      1.3.3 Affiliates of Symetra. As of the
Effective Date, ACS shall be responsible for providing
to Symetra and those Symetra Affiliates identified in Schedule 7 the Services contemplated to be
received by Symetra and those Symetra Affiliates identified in Schedule 7 under this Agreement as
of the Effective Date. After the Effective Date, Symetra may add Affiliates and/or business
ventures of Symetra and/or its Affiliates to the scope of this Agreement pursuant to Section
6.2.4. ACS is fully responsible for the performance of its obligations under this Agreement with
respect to the Services provided by ACS to Symetra and its Affiliates. Symetra (and not its Affiliates) shall be responsible for paying all Fees to be paid to ACS hereunder.




          1.3.4 Effect of Certain Provisions. The following Sections hereof shall be applicable to
this Agreement only, and may not be applicable to certain Country Agreements where the Services may
be provided: 14.4 and 14.5.




          1.4 Interpretation. If there is a conflict among the terms in the various contract documents
including this Agreement, the Schedules, the Attachments, the Addenda, the Appendices and/or any
other documents that comprise this Agreement:





               (a) to the extent the conflicting terms can reasonably be interpreted so that such
terms are consistent with each other, such consistent interpretation shall prevail; and




               (b) to the extent subsection (a) does not apply, the following order of precedence will
prevail:




                    (i) first, the terms set forth in Attachment K (including its addenda and
appendices), excluding, however, the terms of any separately executed agreement
containing the terms set forth in Attachment K pursuant to Sections 9.2.4 and/or
14.4.1;




  
              
    (ii) second, the terms set forth in the body of this
Agreement;




   
             
    (iii) third, the terms set forth in the Attachments A through Q to this
Agreement (including any attachments, addenda or appendices thereto), but excluding
Attachment K and its addenda and appendices, provided that no order of precedence
shall be given among them;



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  (iv) fourth, the terms set forth in the Schedules 1 through 7 to this
Agreement (including any attachments or addenda thereto), provided that no order of
precedence shall be given among them; and




    
                (v) fifth, the terms set forth in any other documents that comprise this
Agreement, provided that no order of precedence shall be given among them.




     
          (c)
ACS and Symetra hereby acknowledge that they have drafted and negotiated the
Agreement jointly, and the Agreement will be construed neither against nor in favor of
either, but rather in accordance with its fair meaning.



     Notwithstanding the foregoing terms of this Section 1.4, to the extent a defined term in
Attachment P conflicts with a defined term in any Schedule 2, the defined term in such Schedule 2
shall take precedence over the defined term in Attachment P for purposes of that Schedule 2.



     Captions and titles to Schedules, Attachments, Addenda, Appendices and/or other documents
that comprise this Agreement are used herein for convenience of reference only and shall not be
used in the construction or interpretation of this Agreement. Any reference herein to a particular
Section number (e.g., “Section 2”), shall be deemed a reference to all Sections of this Agreement
that bear sub-numbers to the number of the referenced Section (e.g., Sections 2.1, 2.1.1, etc.).
As used herein, the word “including” shall mean “including, without limitation” or “including, but
not limited to”.



ARTICLE 2

SERVICES




     2.1 General.



   
       2.1.1 Commencement of Services. Subject to
Symetra’s exercise of its management and
oversight functions and prerogatives as identified in Article 5 or elsewhere in this
Agreement,
ACS shall provide the Services to Symetra at or with respect to all Symetra Sites. Except as
otherwise provided in this Agreement, ACS shall procure or otherwise provide all hardware, software, network facilities and other items required to provide the Services and otherwise perform its
obligations hereunder, all of which shall be deemed included in the Fees. In accordance with the
terms of this Agreement, ACS shall begin providing: (a) the transition and other Services described
herein (excluding the Service Tower Services) at 12:01 a.m., Pacific time, on the Effective Date;
and (b) each of the Service Tower Services at 12:01 a.m., Pacific time, on the Handover Date that
is applicable to each of such Service Tower Services. Symetra shall not be precluded from
obtaining services from any other provider that may be similar or identical to the Services.




          2.1.2 Locations for Performance of Services. Without Symetra’s prior written consent, ACS
shall not perform any of the Services from locations, or using employees, agents and/or contractors
(including Subcontractors), situated outside the United States. Notwithstanding the foregoing,
Symetra acknowledges and agrees that the Services identified in Attachment M will be provided from
the respective countries identified therein; however, ACS represents and warrants to Symetra that:
(a) no Symetra Data will reside in any country other than the United States; and (b) except to the
extent minimally necessary for ACS’ employees, agents and/or contractors (including
Subcontractors) to perform the Services under this Agreement, no Symetra Data, and no data,




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information and/or mechanisms (including, without limitation, sniffer traces), that would
enable a Person to discover Symetra Data, will be accessible from any country other than the United
States. ACS will provide to Symetra from time to time upon Symetra’s request a written list of all
ACS employees, agents and/or contractors (including Subcontractors), if any, who have had access to
the Symetra Data, and the contents of such written list shall include, without limitation, the name
and business location of each such employee, agent and/or contractor (including Subcontractors),
the date of access of the Symetra Data and the type of Symetra Data accessed. If any law or
regulation enacted after the Effective Date has, or is likely to have, an adverse impact on the
desirability to either Party of having such Services provided from a location outside the United
States including, without limitation, as a result of new tax and/or privacy laws, at the affected
Party’s request, the Parties shall engage in good faith negotiations to arrive at a mutually
agreeable reasonable alternative.




     2.2 Service Tower Services.



          2.2.1
Initial Service Tower Services. Schedules 2A, 2B, 2C, 2D, 2E, 2F, 2G and
2H (each, together with any additional Schedules relating to additional Services that may be
added to this Agreement by mutual agreement of the Parties following the Effective Date, is
sometimes referred to herein as “the applicable Schedule 2”, or similar terminology) contain a
detailed description of each of the following Service Tower Services provided by ACS that will be
available to be purchased by Symetra from ACS:





               (a) Cross-Functional Services (Schedule 2A);




               (b) Data Center Services (Schedule 2B);




               (c) Distributed Computing Services (Schedule 2C);




               (d) Data Network Services (Schedule 2D);




               (e) Voice Communications Services (Schedule 2E);




               (f) Help Desk Services (Schedule 2F);




               (g) Output
Processing (Schedule 2G); and



               (h) Content Management (Schedule 2H).


The Parties may develop additional Schedules relating to additional Services that will be provided
by ACS to Symetra hereunder. Once approved in accordance with the terms herein, all such Schedules
shall be deemed to be numbered sequentially and made a part of Schedule 2.




          2.2.2 SLRs for Service Towers.





               (a) Commitment to SLRs. From and after each applicable Handover Date (or upon
the occurrence of such other date or event as may be expressly set forth in a particular
Schedule 2 for a particular SLR), ACS shall perform the applicable Service Tower Services in
accordance with, and in such a manner as to meet or exceed, the SLRs. ACS shall perform
any Other Services in accordance with, and in such a manner as to meet or exceed, any SLRs
that may be set forth in the applicable Out-of-Scope Work Order or otherwise agreed to by
the Parties in writing.




               (b) Measurement and Reporting. ACS shall measure its performance against the SLRs in
accordance with the methodologies specified in the applicable Schedule 2 and shall provide a
detailed, comprehensive report of its performance against the SLRs during the applicable
reporting period (“SLR Reports”) by the fifth (5th) Business Day following



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the end of the applicable reporting period. Such reports shall be provided in
accordance with Section 2.11.1 and in accordance with the SLR metrics set forth in the
applicable Schedule 2. ACS shall meet with Symetra at least monthly, or more or less
frequently if requested by Symetra, to review ACS’ actual performance against the SLRs and
shall recommend remedial actions to resolve any performance deficiencies.




               (c) Root-Cause Analysis and Resolution. Promptly, but in no event later than five (5)
calendar days after ACS’ discovery of, or if earlier, ACS’ receipt of a notice from Symetra
regarding, ACS’ failure to provide any of the Services in accordance with the SLRs, ACS
shall, as applicable under the circumstances: (i) perform a Root-Cause Analysis to identify
the cause of such failure; (ii) provide Symetra with a written report detailing the cause
of, and procedure for correcting, such failure; and (iii) provide Symetra with satisfactory
evidence that such failure will not recur. ACS’ correction of any such failures shall be
performed in accordance with the time frames set forth in the applicable Schedule 2 entirely
at ACS’ expense unless it has been determined, by mutual agreement of the Parties or through
the Problem-resolution process specified in this Agreement, that: (iv) Symetra (or one of
its subcontractors, agents or Third Parties provided by Symetra and not managed by ACS)
and/or its self-managed properties and/or systems was the predominant contributing cause of
the failure and ACS could not have worked around the failure without expending a material
amount of additional time or cost; or (v) Third Party software or firmware directly resulted
in such failure; provided that such Third Party software or firmware: (A) was expressly
approved by Symetra; (B) was implemented by ACS following its standard, rigorous, documented
interoperability testing, quality assurance, user acceptance and change management
processes; (C) was unknown, undocumented and unreported prior to ACS’ implementation of
such Third Party software or firmware; and (D) ACS could not have worked around the failure
without expending a material amount of additional time or cost. In such event: (vi) ACS
shall be entitled to temporary relief from its obligation to timely comply with the affected
SLR, but only to the extent and for the duration so affected; and (vii) in the case of an
event described in subsection (iv), Symetra shall reimburse ACS for ACS’ expenses to correct
such failure, but only to the extent Symetra caused such failure, unless the Parties
otherwise mutually agree. For purposes hereof, any preexisting condition of those of
Symetra’s properties and systems that are used and managed by ACS to deliver the Services
shall not be deemed a contributing cause of any failure if such condition was or reasonably
should have been identified in ACS’ reasonable, pre-implementation diligence processes, or
as a result of ACS’ post-implementation, industry-standard quality assurance processes; provided, however, that this exception specifically shall not apply to any hidden defect that
was not identified following such diligence and quality assurance processes.




               (d) Annual Review of SLRs. Symetra expects that SLRs will improve over time and that
new SLRs may be added to reflect Symetra’s changing and/or new business requirements.
Accordingly, at least once annually, Symetra expects to review and reach agreement with ACS
on, among other things: (a) adjustments to the SLRs to reflect such anticipated continuous
improvements in the SLRs; and/or (b) the addition of new SLRs. Unless requested by Symetra,
in no event will the SLRs be made less favorable to Symetra as a result of such reviews.




               (e) Classifying an SLR as an SLA. Subject to limitations set forth in Schedule 5,
upon sixty (60) calendar days’ prior written notice to ACS, Symetra shall have



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the right to classify any SLR as an SLA and to re-allocate the SLA Weighting Factors
so that a Weighting Factor is applicable to such newly classified SLA.




               (f) Benchmarking. As part of the Services, ACS shall conduct benchmarking with
Symetra in accordance with the terms, conditions and procedures described in Attachment A.



          2.2.3 Symetra Sites. Attached hereto as Attachment B is a list of Symetra facilities
(collectively, the “Symetra Sites”) with respect to which ACS shall provide the Services.




          2.2.4 Governance Regarding Relief Events. The Parties acknowledge and agree that from time
to time during the Term, events and circumstances caused by the actions or inactions of Symetra may
arise that have (or are reasonably anticipated to have) a material adverse impact on ACS’ ability
to achieve the SLRs, or otherwise provide the Services in the manner required by this Agreement,
without expending a material amount of additional time or cost (such events and circum stances,
“Relief Events”). By way of example and without limiting the foregoing, the Parties acknowledge
that a Relief Event may arise as a result of ACS’ compliance with Symetra’s instructions in
connection with an Extraordinary Event under Section 2.10 and/or as a result of Symetra’s exercise
of its retained authorities under Article 5. With respect to such Relief Events, the following
terms and principles shall apply:





               (a) If a Relief Event causing ACS to be unable to provide any of the Services in
accordance with the SLRs has occurred, the terms of Section 2.2.2(c) shall apply.




               (b) Without limiting ACS’ obligations under Section 2.2.2(c), if a Relief Event has
occurred, ACS shall nevertheless use commercially reasonably efforts to perform the Services
and achieve the SLRs throughout the duration of such Relief Event using existing levels of
resources dedicated to Symetra’s account, and the Parties shall work together in good faith
to address the impact of such Relief Event on the Services and the SLRs in a timely manner.




               (c) To the extent that either Party anticipates or determines that a Relief Event is
likely to occur, such Party shall notify the other Party of such determination, and the
Parties shall work together in good faith in advance of the anticipated Relief Event to
establish a plan for providing the Services during such Relief Event, taking into account
the relevant specifics and details of the Relief Event. Where Symetra’s actions or
inactions are the predominant cause of the anticipated Relief Event, such plan may include
the temporary suspension of SLRs associated with the affected Services, and/or additional
fees or charges associated with Other Services provided by ACS that are designated to
address the impact of the Relief Event or achieve the SLRs during the Relief Event.




               (d) If an unanticipated Relief Event occurs, and Symetra’s actions or inactions are
the predominant cause of such Relief Event, or such Relief Event is the result of a Force
Majeure Event, without limiting ACS’ obligations under Section 2.2.2(c) and this Section,
ACS shall be relieved from its obligations to meet or exceed the SLRs affected by the Relief
Event (and its responsibility with respect to any related Fee Reductions) during the duration of such Relief Event.



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     2.3 Transition Services.



          2.3.1 Transition Plan. Attachment C sets forth a preliminary, high-level transition
plan (the “Transition Plan”) that generally outlines the tasks, timelines, responsibilities, dependencies, major milestones, deliverables and acceptance testing procedures for each Service area.
Within thirty (30) calendar days following the Effective Date, the Parties shall develop a
detailed, complete Transition Plan, which shall replace and supersede the initial high-level
Transition Plan. In accordance with the terms set forth in the Transition Plan, ACS shall
accomplish the transparent, seamless, orderly and uninterrupted transition from the manner in which
Symetra and its Affiliates received all services prior to the applicable Handover Date to the
manner in which the Services will be provided as described herein.




          2.3.2 Progress Reports. ACS shall provide to the Symetra Project Executive (or his/her
designee) a weekly written report as to the progress of completion of the activities contained in
the Transition Plan until each of ACS’ responsibilities thereunder has been completed. Such reports shall be provided in accordance with Section 2.11.1.




          2.3.3 Financial Responsibility. ACS shall assume financial responsibility for providing each
of the Service Tower Services as of the applicable Handover Date. Further, at Symetra’s option, ACS
shall assume financial responsibility for providing each of the Service Tower Services irrespective
of whether handover of the applicable Service Tower Service actually has been completed as of such
date.





               (a) If ACS is unable to provide any of the Service Tower Services as of the applicable
Handover Date, “assume financial responsibility” means that:




                    (i) ACS shall reimburse Symetra for all costs and expenses incurred by Symetra
to provide such Service Tower Services (including by way of example and not of
limitation, salaries and other payments to in-scope Symetra employees, fees under
in-scope third party contracts, etc.) or, in Symetra’s sole discretion, Symetra may
set off any such costs and expenses against the Fees, if any, due under the
Agreement; and




                    (ii) ACS shall be entitled to invoice Symetra for such Service Tower Services
as if ACS itself were providing such Service Tower Services.




               (b) ACS shall not be required to assume financial responsibility for a particular
Service Tower Service as described in the foregoing subsection (a) to the extent ACS’
performance is excused due to a Force Majeure Event or to the extent the delay was requested by Symetra. Further, if ACS is unable to provide a particular Service Tower Service
as of the applicable Handover Date, the SLRs shall not apply until ACS actually begins providing such Service Tower Service.



     2.4 Purchasing Agent Services. Without limiting ACS’ obligations to procure or otherwise
provide all hardware, software, network facilities and other items required to provide the Services as described in this Article 2, and in addition to ACS’ other responsibilities herein, as and
when requested by Symetra, ACS shall procure hardware and software (such as, for example, personal
office printers) (“Procured Technology”) from a Symetra-approved product list on Symetra’s behalf.
ACS’ procurement responsibilities in this Section 2.4 shall include, without limitation,



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evaluating ACS qualifications and independence; negotiating Symetra-favorable pricing
(including obtaining the most favorable prices, rates and discounts available); ordering,
receiving, configuring, installing, testing, maintaining and distributing all Procured Technology.
As between Symetra and ACS, all right, title and interest in and to each item of Procured
Technology shall be vested in Symetra, and Symetra shall reimburse ACS for the purchase price for
such Procured Technology.




     2.5 Technology Management and Security Services.



          2.5.1 General. ACS shall provide the technology management and security Services described
in this Section 2.5. ACS shall obtain Symetra’s prior written consent before acquiring,
maintaining, upgrading or replacing any asset that is used by ACS to satisfy its obligations hereunder if such acquisition, maintenance, upgrade or replacement could result in any material change
in, or adverse impact on, the method, manner, types or levels of Services that are then being
provided to Symetra.




          2.5.2 Technology Upgrades and Enhancements. ACS will keep all Services under this Agreement
current with industry advances and leading technology standards. Without limiting the generality of
the foregoing, all hardware and software used to provide the Services will be kept at levels
supportable by the respective manufacturers, and equipment will be upgraded or replaced as required
to meet the SLRs and manufacturer-recommended requirements. Additionally, ACS shall notify Symetra
as soon as hardware and software upgrades and enhancements become available from their respective
vendors, and the Parties thereafter will coordinate implementation of such upgrades and
enhancements. ACS shall schedule all such upgrades and enhancements in advance and in such a way as
to prevent any interruption or disruption of, or diminution in, the nature or level of any portion
of the Services.




          2.5.3 ACS’ Technology Refresh Requirements. ACS shall replace and/or upgrade its own equipment
and software periodically as specified in Attachment F. In purchasing new equipment and software,
ACS shall conform to the Technology Plan as described in Section 2.5.4. ACS will review the
proposed purchase strategies each year (or more frequently, if required) with Symetra in order to
determine which technology strategies will provide optimal and/or improved Services to Symetra.




          2.5.4 Technology Planning and Innovation. On or before June 1 and December 1 of each calendar
year, or more frequently as requested by Symetra, ACS shall prepare for Symetra’s review, comments
and approval a technology plan (the “Technology Plan”) that is comprised of both short-term and
long-range plans that tie into Symetra’s business goals. The short-term plan will include
information technology budget development for the next fiscal year including, consistent with the
requirements of Section 2.5.3, identification of software and hardware for which technology refresh may be needed in the next Contract Year, and a projected time schedule for procuring the
necessary software, hardware and services and implementing the proposed changes. The long-range plan
will include strategic and flexible use of information technology systems in light of Symetra’s
anticipated business goals, current mission, objectives, priorities and strategies. Once approved
by Symetra, each Technology Plan will be deemed to be incorporated in and made a part of this
 Agreement. ACS will on a regular basis and prior to preparing each annual Technology Plan: (a) identify
ACS and non-ACS products and technology services that may benefit Symetra and support the mission,
goals and objectives of Symetra; (b) identify ACS or Symetra resources required to complete the
short-term and long-range plans; and (c) upon Symetra’s request, investigate the requirements,
costs and benefits of new technology. Notwithstanding the development of the Technology Plan on





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an annual basis as described herein, ACS also shall have an ongoing responsibility to
regularly provide Symetra with information regarding any newly improved or enhanced commercially
available information technologies that reasonably could be expected to have a positive impact on
Symetra including, without limitation, in the areas of increased efficiency, increased quality
and/or reduced costs (“Enhanced Technology”). At a minimum, at least once annually, or more
frequently as requested by Symetra, ACS shall meet with the IT Outsourcing Committee and provide a
written report to the IT Outsourcing Committee that identifies any Enhanced Technology that ACS and
its principal Subcontractors are developing and IT trends of which Symetra should be made aware.
Upon identifying any Enhanced Technology that the Parties believe would materially improve
performance, capacity, bandwidth, or reduce the cost, of the Services, the Parties will meet and
discuss in good faith the terms upon which such Enhanced Technology may be implemented into the
Services, including detailed SLRs specific to each such enhancement.




          2.5.5 Asset Management. Within ninety (90) calendar days following the Effective Date, ACS
shall develop and thereafter maintain a comprehensive inventory of all: (a) equipment, software
and network connections and infrastructure used by ACS to provide the Services; (b) equipment,
software and network connections and infrastructure used by Symetra in connection with the
Services; and (c) Procured Technology. ACS shall provide an electronic copy of such inventory to
Symetra upon request. In addition, ACS shall provide Symetra with reports detailing software
usage by Symetra and other activities by Symetra relating to Symetra’s compliance with software
licenses that can be monitored by ACS in delivering the Services, provided that such responsibilities shall be detailed in each applicable Schedule 2. The Parties agree that ACS shall
have no legal or financial responsibility for Symetra’s non-compliance with such software licenses
except to the extent resulting from: (d) events subject to indemnification under Section 15.1.8;
and (e) potential breach of contract liability under this Agreement based on ACS’ failure to
comply with its obligations under this Agreement.




          2.5.6 Shared Resources. Except as provided in Attachment G, ACS shall not use a shared
hardware or software environment, or any shared network or platform
(collectively, “Shared Resources”) to provide the Services. If, following the Effective Date, ACS wants to migrate or relocate any Services to Shared Resources, ACS shall provide to Symetra for its review, comments and
approval, which approval may be withheld in Symetra’s sole discretion, a proposal for such
migration or relocation, including a listing of all shared use assets that will be used to provide
the Services and a breakdown of the cost and price benefits and savings or risks to Symetra. As
part of the Disentanglement, ACS shall identify and assist Symetra with procuring suitable
functionally equivalent replacements for any Shared Resources used to provide the Services.




          2.5.7 Disaster Recovery.





               (a) Review of Symetra’s Disaster Recovery Plans. On or before the date specified in
the Transition Plan, ACS shall review Symetra’s existing disaster recovery plan(s) and
develop and deliver to Symetra for its review, comments and approval a detailed, complete,
written analysis of such disaster recovery plan(s) that identifies, among other things, any
deficiencies and gaps in such disaster recovery plan(s) and the changes, modifications
and/or updates recommended by ACS in order to address such deficiencies and gaps. Without
limiting the generality of the foregoing, ACS’ written analysis specifically shall address
ways to safeguard the Symetra Data and to ensure the continuing availability of all
Services, including the Service Tower Services, in accordance with the terms of this
Agreement during any event that would otherwise adversely affect ACS’ ability to safeguard
the Symetra



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Data and/or deliver the Services. Following its receipt of ACS’ analysis, Symetra
promptly shall review and comment on the same, and ACS thereafter shall update Symetra’s
disaster recovery plan(s) accordingly and, on or before the date specified in the
Transition Plan, deliver to Symetra fully updated paper and electronic copies of such
disaster recovery plan(s). Thereafter, ACS shall re-assess Symetra’s disaster recovery
plan(s) as described herein once annually (or more frequently if necessary) and, not later
than sixty (60) calendar days following commencement of the second and each subsequent
Contract Year, provide to Symetra for its review, comments and approval proposed changes,
modifications and/or updates to Symetra’s disaster recovery plan(s) in order to address any
identified deficiencies and gaps. Following its receipt of ACS’ annual assessment, Symetra
promptly shall review and comment on the same, and ACS thereafter shall update Symetra’s
disaster recovery plan(s) accordingly and, within thirty (30) days after receiving
Symetra’s comments, deliver to Symetra fully updated paper and electronic copies of such
disaster recovery plan(s).




               (b) Provision of Disaster Recovery Services. Subject to, and without limiting, the
terms of this Section 2.5.7, ACS shall provide the disaster recovery Services set forth in
the applicable Schedules 2 in accordance with its own and Symetra’s disaster recovery
plan(s). ACS shall provide disaster recovery Services as described herein at all times irrespective of whether a Force Majeure Event has occurred, unless the Force Majeure Event
prevents the performance of the disaster recovery Services. Further, ACS shall provide dis
aster recovery Services if Symetra notifies ACS that a disaster has occurred. Upon the occurrence, and periodically for the duration, of any disaster, ACS shall provide regular reports
and notices to Symetra regarding the status of ACS’ response to, and recovery from, the disaster.




               (c) Review and Testing of Disaster Recovery Plan. ACS’ disaster recovery Services
shall include regular (not less often than once annually) testing and updating of both its
own and Symetra’s disaster recovery plans (including plans for data backups, storage
management and contingency operations), reserving capacity at alternate site facilities and
annually testing network connectivity between such alternate site and the applicable Symetra
Sites. Symetra shall have the right to participate fully in any disaster recovery testing
conducted by ACS including being physically present at the facilities of ACS and/or any
Third Parties involved in such testing.




               (d)
Fees. ACS’ costs and expenses associated with performing the obligations set forth
in this Section 2.5.7 shall be included in the Annual Services Fee as a separate annual
line item.



     2.6 Standards and Procedures Manual.



          2.6.1 Development of Manual. As ACS transitions and migrates Services in accordance with the
terms of the Transition Plan, ACS shall develop and continuously update a detailed,
Symetra-specific standards and procedures manual that minimally includes the contents specified in
Section 2.6.2 (the “Standards and Procedures Manual”). ACS shall deliver the first draft of the
Standards and Procedures Manual to Symetra for its review, comments and approval within ninety (90)
calendar days following the Effective Date of the Agreement and shall, with respect to each draft
of the Standards and Procedures Manual, incorporate all of Symetra’s comments and suggestions. Not
later than thirty (30) calendar days following completion of all activities under the Transition
Plan, ACS shall deliver an updated draft of the Standards and Procedures Manual to




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Symetra for its review, comments and approval and thereafter shall periodically (but not less
often than quarterly) update the Standards and Procedures Manual to reflect changes in the
operations or procedures described therein. All such updates to the Standards and Procedures Manual
shall be provided to Symetra for its prior review, comments and approval. Delivery of the initial
draft and the updated draft of the Standards and Procedures Manual as provided herein shall
constitute Critical Milestones. Prior to completion of the Standards and Procedures Manual, ACS
shall provide the Services in accordance with the standards and procedures generally used by
Symetra.




          2.6.2
Contents. ACS shall provide the Standards and Procedures Manual to Symetra
electronically (and in a manner such that it can be accessed via either Symetra’s intranet or the
Internet) and communicate to all End-Users the availability of and methodology for accessing the
Standards and Procedures Manual. The Standards and Procedures Manual shall describe, among other
things, the manner in which ACS will provide the Services hereunder, including the equipment and
software being and to be used, the documentation (including, e.g., operations manuals, user
guides, specifications, and End-User support) that provide further details of such activities and
detailed problem and change management procedures. The Standards and Procedures Manual also shall
describe the activities ACS will undertake in order to provide the Services including, where
appropriate, direction, supervision, monitoring, staffing, quality assurance, reporting, planning
and oversight activities, as well as the specific measures taken to comply with all laws and
regulations that are applicable to ACS as an operator of its business or in performing its
obligations under the Agreement. The Standards and Procedures Manual also shall identify those
Services that ACS is to perform to assist Symetra in complying with its own regulatory obligations
including, without limitation, those relating to the privacy and security of the Symetra Data,
including HIPAA, the California Statute, GLB and any other laws and regulations applicable to the
Symetra Data and/or identified by Symetra. Without limiting ACS’ obligations to assist Symetra in
complying with its own regulatory obligations as described above, it is expressly agreed and
understood by the Parties that Symetra shall be responsible for compliance with all laws and
regulations that are applicable to Symetra as an operator of its business, its receipt of the
Services, its direct regulatory obligations relating to the Symetra Data and, if the terms of
Section 14.6 are applicable, its status as controller of the Symetra Data. The Standards and
Procedures Manual shall describe how the Services will be performed and act as a guide to
End-Users seeking assistance with respect to the Services offered hereunder. The Standards and
Procedures Manual shall in no event be interpreted as an amendment to this Agreement or so as to
relieve ACS of any of its performance obligations under this Agreement.




     2.7 Service Compatibility. ACS shall ensure that all services, equipment, networks, software,
enhancements, upgrades, modifications and other resources, including those provided by Symetra
(collectively, the “Resources”), that are: (a) used by ACS to deliver the Services; or (b)
approved by ACS for utilization by Symetra in connection with the Services, shall be successfully
integrated and interfaced, and shall be compatible with the services, equipment, networks,
software, enhancements, upgrades, modifications and other resources that are being provided to
Symetra by Third Party service providers (collectively, the “Third-Party Resources”); provided,
however, that any such responsibilities of ACS for Resources shall be detailed in the applicable
Schedules 2. Further, ACS shall ensure that none of the Services or other items provided to
Symetra by ACS shall be adversely affected by, or shall adversely affect, those of any such Third
Party providers, whether as to functionality, speed, service levels, interconnectivity,
reliability, availability, performance, response times or similar measures. To the extent that any
interfaces need to be developed or modified in order for the Resources to integrate successfully,
and be compatible with, the Third-Party Resources, ACS shall develop or modify such interfaces as
part of the Services, pursuant to the process set forth in Section 2.8. If a question arises as to
whether a particular defect, malfunction or other



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difficulty with respect to the Services was caused by Resources or by Third-Party Resources,
ACS shall be responsible for correcting, at its cost, such defect, malfunction or difficulty,
except to the extent that ACS can demonstrate, to Symetra’s satisfaction, by means of a Root-Cause
Analysis, that the cause was not caused by Resources. In addition, ACS shall cooperate with all
Third Party service providers of Symetra to coordinate its provision of the Services with the
services and systems of such Third Party service providers. Subject to reasonable confidentiality
requirements, such cooperation shall include providing: (a) applicable written information
concerning any or all of the systems, data, computing environment, and technology direction used
in providing the Services; (b) reasonable assistance and support services to such Third Party
providers; (c) access to systems and architecture configurations of Provider to the extent
reasonably required for the activities of such Third Party providers; and (d) access to and use of
the Resources.




     2.8 In-Scope Service Requests. If Symetra requires the performance of work that is not being
performed at a particular time but that is within the scope of the Services, Symetra shall deliver
to the ACS Project Executive an “In-Scope Service Request” in the form set forth in Attachment D
specifying the proposed work with sufficient detail to enable ACS to evaluate the request. If such
In-Scope Service Request is a request for access to ACS personnel versus a request for a
particular set of Services that are in the nature of a longer-term project, Symetra shall
prioritize (and re-prioritize as deemed necessary by Symetra), and ACS shall respond to, such
In-Scope Service Request as follows:



	 	 	 	 	 
	Symetra-	 	Response
	Designated	 	Symetra Corporate Headquarters &	 	 
	Priority	 	ACS NWSC - Hillsboro	 	Symetra Remote Office Locations
	Urgent

	 	Immediate
	 	ASAP, not to exceed 8 hours
	 
	 	 	 	 
	Standard

	 	2 Hours
	 	2 Business Days
	 
	 	 	 	 
	Low

	 	8 Hours
	 	5 Business Days





With respect to In-Scope Service Requests that are in the nature of a longer-term project,
unless the Parties mutually agree in writing to proceed otherwise, within five (5) Business Days
following the date of ACS’ receipt of such In-Scope Service Request, ACS shall provide Symetra
with a written proposal in response to the In-Scope Service Request that contains the following:
(a) a detailed description of the Services to be performed; (b) specifications (if applicable);
and/or (c) an implementation plan, with implementation to commence not later than thirty (30)
calendar days after approval thereof, unless otherwise mutually agreed. All services requested in
an In-Scope Service Request shall constitute Services for purposes of this Agreement. Following
receipt of ACS’ proposal, Symetra shall notify ACS in writing whether to proceed with the In-Scope
Service Request, and ACS shall take no further action with respect to the In-Scope Service Request
until it receives approval from Symetra. In-Scope Service Requests must be executed by the Symetra
Project Executive, or his or her designee, in order to be effective.




     2.9 Out-of-Scope Work Orders.



          2.9.1 Requirements and Process. From time-to-time, Symetra may solicit a response from
prospective providers to perform services that are outside the scope of the Services
(“Out-of-Scope Service(s)”). At its own cost
and expense, ACS shall submit a response (“Out-of-




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Scope Work Order”) to any such Out-of-Scope Services request that complies with the terms of
this Section within ten (10) Business Days after ACS’ receipt of Symetra’s request, or, if the
scope of the Out-of-Scope Services is such that ten (10) Business Days would be insufficient,
within a mutually agreed period of time. ACS’ proposed fees for performing each Out-of-Scope Work
Order shall be at a fixed price (to the extent the Out-of-Scope Service consists of design, build
or other development services) or at a fixed rate per unit of performance or other benefit to be
received by Symetra (to the extent the Out-of-Scope Service consists of operational or other
ongoing services), in either case based upon the lower of the Service Rates or the best rates,
terms and conditions ACS is offering or has offered to other customers for services of a similar
nature and scope. Each such response shall be in writing and shall contain the following items and
be in conformance with the process set forth herein: (a) ACS’ response to Symetra’s description
and specifications for the Out-of-Scope Services, including all services to be performed,
categories of personnel (and number of personnel within each category) required to complete the
Out-of-Scope Services, and an implementation plan; (b) the amount, schedule, and method of
payment; (c) the timeframe for performance; (d) completion and acceptance criteria; and (e) any
proposed SLRs for new services that would result from the Out-of-Scope Services. If Symetra
selects ACS as its provider with respect to the Out-of-Scope Work Order, the obligations of ACS
with respect to the Out-of- Scope Services shall be deemed Other Services under this Agreement,
and the Out-of-Scope Services and the Out-of-Scope Work Order shall be governed by all the terms
and conditions of this Agreement.




          2.9.2 Potential Limitation on Future Contracts. If ACS, under the terms of this Agreement or
through the performance of tasks hereunder, develops specifications or statements of work, and such
specifications or statements of work are to be incorporated into a solicitation, at Symetra’s
option, ACS may be ineligible under Symetra’s standard procurement rules or, if such rules do not
exist, industry standard procurement rules, to bid on and perform the work described within that
solicitation as a prime contractor or subcontractor under a future Symetra contract. Except for the
foregoing, ACS shall have the ability to compete for future business with Symetra on an equal basis
with other Persons.




     2.10 Extraordinary Events or Circumstances. Symetra may, at any time, in a written notice
signed by the Symetra Project Executive, or his or her designee, and as a result of an
Extraordinary Event: (a) direct ACS, in accordance with Section 2.8, to perform Services in an
extraordinary manner (e.g., perform Services at service levels above or below the SLRs for a
limited duration); or (b) direct ACS to prepare and submit a proposed Out-of-Scope Work Order more
quickly than required under Section 2.9.1; (c) direct ACS to temporarily cease the performance of
certain Services; or (d) obtain a Third Party to perform certain Services for the duration of the
Extraordinary Event. If such Extraordinary Event results in ACS’ performance of Other Services, to
the extent incremental pricing for such Other Services is not set forth in this Agreement
(including, in particular, in Schedule 4), the Parties shall engage in good faith negotiations in
order to arrive at appropriate fees and expenses to be paid to ACS in consideration of its
performance of such Other Services. If such Extraordinary Event results in ACS’ performance of
additional or fewer Services, as the case may be: (e) provided: (i) the upper Pricing Band limit
or the lower Pricing Band limit, as applicable, for such Services as specified in Schedule 3 has
not been surpassed for more than ninety (90) calendar days, the applicable pricing set forth in
Schedule 3 shall apply; or (f) once the upper Pricing Band limit or the lower Pricing Band limit,
as applicable, for such Services as specified in Schedule 3 has been surpassed for more than
ninety (90) calendar days, the Parties shall engage in good faith negotiations in order to arrive
at new pricing for the affected Service Tower Services. The rights and obligations of the Parties
under this Section 2.10 shall be in addition to those under Sections 2.5.7, 9.2.3 and similar
provisions of this Agreement addressing Force Majeure Events.



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     2.11 Reports and Other Resource Materials.



          2.11.1 General. In addition to any reports that may be required to be furnished pursuant to
any Schedule 2, ACS shall furnish reports to Symetra in the manner, format, and frequency, and
containing contents, reasonably requested by Symetra from time to
time. In addition to SLR Reports
and reports relating to amounts invoiced to Symetra, ACS’ reports shall include, among other
things, annual security audit reporting, including reporting on unauthorized system access
incidents, and reports regarding cost-management, Subcontractor relationships, End-User
satisfaction, human resources matters and any other pertinent data requested by Symetra. ACS
promptly shall (but not later than two (2) calendar days after gaining knowledge thereof) inform
Symetra of any deficiencies, omissions or irregularities in Symetra’s requirements or in ACS’
performance of the Services that come to ACS’ attention. ACS shall furnish Symetra with all
existing and future research and development resources, such as published materials, and industry
studies conducted for or by ACS, that pertain to the Services and that might assist Symetra in
setting its IT policies or requirements. The ACS Project Executive also shall advise Symetra of all
other matters of a material nature that he or she believes would be helpful to Symetra in setting
or revising its IT policies or requirements.




          2.11.2 Media. ACS shall furnish to Symetra all reports in both hard copy and electronic form
per Symetra’s specifications in effect on the Effective Date, as the same may be reasonably
modified by Symetra from time-to-time thereafter.




     2.12
Critical Milestones.



          2.12.1
Designation of Critical Milestones. As of the Effective Date, the Parties have
designated certain milestones, activities, actions and/or projects under this Agreement as Critical Milestones, and have identified (in the Transition Plan or elsewhere in this Agreement) dates
for ACS to achieve such Critical Milestones. Following the Effective Date, the Parties may
designate additional milestones, activities, actions and/or projects under this Agreement as
Critical Milestones (such agreement not to be unreasonably withheld by either Party), and promptly
following such designation, the Parties shall work together cooperatively and in good faith to
agree upon appropriate dates for ACS to achieve such Critical Milestones.




          2.12.2 Failure to Timely Achieve a Critical Milestone. If ACS fails to achieve any Critical
Milestone by the corresponding date for achieving such Critical Milestone, without limiting any
other rights and remedies that may be available to Symetra, Symetra shall have the right to: (a) if
applicable to the Critical Milestone, reduce the Fees by an amount equal to the Fee Reduction
calculated as provided in 
Schedule 5; and/or (b) declare an Event of Default. Notwithstanding the
foregoing, the remedies described in Sections 2.12.2(a) and (b) shall not be available to Symetra
if and to the extent ACS’ failure to achieve any Critical Milestone by the corresponding date for
achieving such Critical Milestone is due to: (c) the occurrence of a Force Majeure Event; (d) a
delay by Symetra solely for its own convenience; or (e) Symetra’s material failure to perform any
of its responsibilities under this Agreement that were a pre-condition to ACS’ ability to perform
its obligations, provided that such failure previously was identified by ACS in writing.



     2.13 End-User Satisfaction and Communication. In addition to any End-User satisfaction
survey requirements set forth in Schedule 2, not less than once quarterly, ACS shall conduct
End-User satisfaction surveys in accordance with this Section. The proposed surveys (including the
underlying instrument(s), methodology and survey plan) shall be
subject to Symetra’s review, comments



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and approval and shall cover a representative sample of the End-Users including, as a
separate sample category, senior management of Symetra. Symetra shall provide reasonable assistance
to ACS to: (a) identify the appropriate sample of End-Users; (b) distribute the surveys; and (c)
encourage participation by such End-Users in order to obtain meaningful results. ACS shall report
the results of the surveys separately from each of the End-Users or groups of End-Users as may be
specified by Symetra, and the ACS Project Executive shall review the results of each survey with
Symetra within thirty (30) calendar days following the mutually agreed deadline for completion and
return of the survey. During each such review session, ACS shall submit an End-User communication
plan to Symetra for its review, comments and approval that shall include, at a minimum, updates to
the End-Users regarding the results of the satisfaction surveys. Not later than thirty (30)
calendar days following each review session, ACS shall provide to Symetra an action plan for
addressing any problem areas identified in the survey results.




     2.14 Cooperation with Symetra and Third Parties. ACS shall cooperate fully with Symetra and
all Third Parties designated by Symetra, and shall disclose such information to Symetra and such
Third Parties relating to ACS and its Subcontractors as may be reasonably required or necessary
for delivery of the Services as required herein. All such disclosures shall be subject to the
confidentiality provisions of Article 13.



     2.15 Movement of an ACS Facility. Except as otherwise agreed to by the Parties in writing, if
ACS moves, relocates, alters or changes any facility (including, without limitation, any ACS data
center), such movement, relocation, alteration or change shall not: (a) result in any charges to
Symetra; or (b) alter or excuse ACS’ obligation to perform all Services in accordance with the
SLRs.



ARTICLE 3

PERSONNEL




     3.1 ACS Personnel.



          3.1.1 ACS Key Personnel.





               (a) Designation of ACS Key Personnel. Each of the ACS Key Personnel is designated on,
and shall have the functions assigned to him or her as set forth in, Attachment E. This
Schedule may be modified from time-to-time in accordance with this Agreement and shall be
deemed modified upon any Symetra-approved replacement or substitution of a new person for
any ACS Key Personnel. Prior to the assignment, hiring or designation of any person to fill
the position or perform the duties provided by any ACS Key Personnel, Symetra shall have
the right to interview and participate in the selection of such person to fill the position
or perform the duties provided by the ACS Key Personnel to be replaced. ACS shall not hire,
assign or designate any new person to fill the position or perform the duties provided by
any ACS Key Personnel without Symetra’s prior written consent, which consent may be given
or withheld in Symetra’s sole discretion. In addition, Symetra shall not be obligated to
pay any Fees (or portion thereof) that are attributable to ACS Key Personnel until it
determines, in its reasonable discretion, that such ACS Key Personnel have sufficient
training, education and knowledge about Symetra’s then-current status and project needs.
ACS shall ensure that all ACS Key Personnel have at least one designated individual as his
or her core knowledge backup, ACS acknowledging that cross-sharing of knowledge is critical
to minimizing the potential impact to Symetra if any of the ACS Key Personnel become
unavailable for any reason. ACS Key Personnel shall treat Symetra as their most favored
customer



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and shall give Symetra priority over all of ACS’ other customers. All other ACS
employees who are assigned to Symetra shall treat Symetra as a priority customer.




               (b) Removal/Replacement of ACS Key Personnel by ACS. All ACS Key
Personnel shall be assigned to perform the Services on such basis (e.g., full time
assignment or otherwise) as needed to ensure that the Services contemplated hereunder are
provided in an efficient and timely manner. Except as otherwise permitted in Section
1.2.2(d), without Symetra’s prior written consent, ACS shall not: (i) undertake any action
with respect to any ACS Key Personnel that would result in the alteration or reduction of
time expended by such ACS Key Personnel in performance of ACS’ duties hereunder; or (ii)
transfer, reassign or otherwise re-deploy any ACS Key Personnel from performance of ACS’
duties under this Agreement, except in cases involving: (i) a voluntary or For Cause
termination; (ii) removal at Symetra’s request; or (iii) inability to work due to death,
disability or illness. If any one of the ACS Key Personnel comes unavailable to perform
his/her duties for any reason, subject to the terms of subsection (c) below, within
forty-eight (48) hours thereafter, ACS shall replace such person with another person
approved by Symetra that is at least as well qualified as the person being replaced. For
purposes of this Section, the movement of ACS Key Personnel from the employ of ACS to an
Affiliate or a Subcontractor of ACS shall be considered a reassignment requiring Symetra’s
consent and not a cessation of employment. If ACS removes or temporarily reassigns the ACS
Key Personnel in accordance with the terms of this Section, Symetra may withhold any and all
payments due or that become due to ACS until the ACS Key Personnel vacancy is filled by a
qualified replacement, as approved by Symetra.




               (c) Removal of ACS Personnel by Symetra. Notwithstanding anything contained herein to
the contrary, if Symetra believes that the performance or conduct of any Person employed or
retained by ACS to perform ACS’ obligations under this Agreement (including, without
limitation, ACS Key Personnel) is unsatisfactory for any reason or is not in compliance with
the requirements of this Agreement, Symetra shall so notify ACS in writing and ACS shall
promptly address the performance or conduct of such person, or, at Symetra’s request,
immediately replace such Person with another Person acceptable to Symetra and with
sufficient knowledge and expertise to perform the Services in accordance with this
Agreement. Symetra shall not be responsible for any relocation expenses associated with
ACS’ compliance with this Section or any other term or condition of this Agreement.




               (d) Transition. If: (i) ACS is obligated to replace an individual as provided in
subsection (c) above; or (ii) ACS wants to replace or reassign any of the ACS Key Personnel,
and either Symetra consents to such replacement or reassignment, or Symetra’s consent to
such replacement or reassignment is not required as provided in subsection (b) above, then:
(1) the terms of subsection (a) above with respect to Symetra’s right to select replacement
personnel for any ACS Key Personnel shall apply; (2) the proposed replacement personnel
shall be “qualified,” meaning that the proposed replacement personnel shall possess
comparable experience and training as the ACS personnel to be replaced; and (3) the replacement personnel shall work with the replaced personnel during a mutually agreed transition
period, the duration of which shall be determined based on the duties and
responsibilities of the person to be replaced, and all costs and expenses associated with
educating and training the replacement personnel shall be borne by ACS. Without limiting
the generality of the foregoing, the transition period for the ACS Project Executive shall
be at least one (1) month in length. In addition, provided the replaced personnel remains
employed by ACS, such individual



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 shall continue to be available by telephone to answer any Services or Other
Services-related questions.



          3.1.2 Additional Personnel Requirements. In addition to ACS Key Personnel, ACS shall provide
and make available such additional staff and personnel as ACS deems necessary to properly perform
all of ACS’ obligations under this Agreement, all of whom shall, prior to their assignment to
perform Services, be subject to security clearances by ACS consistent with any applicable policies
and/or practices as may be requested and/or approved by Symetra. All costs and expenses
associated with providing, equipping and retaining ACS staff and other personnel is included within
the Fees, including, without limitation, all wages (including overtime payments), benefits of
employment, applicable payroll taxes, and all associated staffing costs such as training and education, office supplies, PC refreshment, travel and lodging costs and recruiting and relocation
expenses. On the Effective Date and at the end of every six (6)-month period after the Effective
Date, ACS shall provide Symetra with a written list of all ACS and Subcontractor personnel whose
time is dedicated fifty percent (50%) or more to providing Services hereunder, and the contents of
such written list shall include, without limitation, the employees’ names, dates of placement,
assignment addresses, assigned duties and responsibilities, and the names of the person to whom
they are required to report.




          3.1.3 Minimum Proficiency Levels. ACS Key Personnel, and all other personnel assigned by ACS
or its Subcontractors to perform ACS’ obligations under this Agreement, shall have experience,
training and expertise sufficient to perform ACS’ obligations under this Agreement including,
without limitation, ACS’ obligations with respect to the SLRs. Whenever ACS and/or an ACS
Subcontractor indicates that a Person has a specific level of experience or expertise, such Person
shall in fact possess such experience and expertise. Symetra shall not be required to pay for Services provided by any Person who does not possess the promised levels of experience and expertise.




          3.1.4 Specialized Personnel. As part of its provision of Services, ACS shall ensure that all
ACS personnel (and the personnel of any ACS Subcontractors) performing Services in work areas
requiring specific health, regulatory (including, without limitation, HIPAA, the California Statute, GLB and other regulations identified by Symetra), security or safety-related expertise are
trained, qualified, and available to perform the Services in such areas as such training is commercially appropriate for the Services performed by such personnel. As reasonably requested by ACS,
Symetra shall make available to ACS personnel (and to the personnel of any ACS Subcontractor(s))
any regulatory training that Symetra makes available to its own personnel in such work areas, with
all costs and expenses associated with such training (if any) to be borne by ACS.




          3.1.5 Training. At its own cost and expense, ACS shall provide, and cause its Subcontractors
to provide, all such training to the employees of ACS and its Subcontractors as may be necessary
for them to perform all of ACS’ duties under this Agreement (including technical training as well
as training regarding applicable administrative matters such as training regarding Symetra-specific
policies and SOPs), and, in any event, levels of training equal to or greater than the average
levels of training given to other ACS and/or Subcontractor employees holding corresponding
positions.




          3.1.6 Supervision and Conduct of ACS Personnel. Except as expressly set forth herein, neither
ACS, its Subcontractors, nor the employees of any of them, are or shall be deemed to be employees
of Symetra. ACS or, with respect to Persons who work for an ACS Subcontractor, the applicable ACS
Subcontractor(s), shall be responsible for their own staff assigned to provide Services




-19-









 







under this Agreement, and, subject to this Article 3, ACS (directly or through ACS
Subcontractors) shall have the sole right to direct and control the management of such staff. ACS
and, in respect of Persons who work for ACS’ Subcontractors, ACS’ Subcontractors, shall: (a)
determine and pay all applicable wages and salaries, including applicable overtime and other
premium pay; (b) provide welfare and retirement benefits, as it deems necessary or desirable; (c)
comply with applicable tax laws, including income tax and employment tax withholding laws; (d)
comply with all applicable laws governing the relationship between ACS or ACS’ Subcontractors and
their respective employees, including laws relating to accommodation of disabilities, equal pay,
provision of leave (e.g., FMLA, jury duty, etc.), unlawful discrimination, as well as wage and
hour law requirements; (e) comply with all workers’ compensation insurance coverage laws; (f) file
all applicable reports with federal, state and local agencies and authorities as required by law;
(g) maintain all required employment records, including 1-9, personnel and medical files
consistent with applicable law and customary business practices; and (h) comply with all
applicable equal employment opportunity laws (including, without limitation, Executive Order 11246
as well as all other related laws and regulations). While at or on the premises of Symetra,
personnel of ACS and ACS’ Subcontractors shall: (i) conduct themselves in a businesslike manner;
and (j) comply with the requests and standard rules of Symetra regarding safety and health and
personal, professional and ethical conduct (including, without limitation, those contained in
Symetra’s employee manuals and other written policies and procedures) as may be required for such
locations.




     3.2 Symetra Personnel. The Symetra Project Executive shall act as the primary liaison between
Symetra and the ACS Project Executive and have overall responsibility for the day-to-day oversight
of ACS’ performance under this Agreement and coordination of Symetra’s retained authorities, as
well as the additional personnel described in Section 3.1, in order to perform Symetra’s responsibilities hereunder. If any one of such Symetra personnel is unable to perform the functions
or responsibilities assigned to him or her in connection with this Agreement, or if he or she is no
longer employed by Symetra, Symetra shall replace such person or reassign the functions or
responsibilities to another Person.



     3.3 Solicitation of Personnel. Except as provided in Section 10.3.6, during the Term and for
a period of twelve (12) months thereafter, neither Party shall, without the prior written consent
of the other Party, directly or indirectly solicit for employment any employee of the other who is
involved in the performance of this Agreement. Notwithstanding the
foregoing, a Party (the “Recruiting Party”) will not have violated the terms set forth in the preceding sentence if an
employee of the other Party: (a) responds to a general, non-targeted solicitation for employment
issued by the Recruiting Party, such as a newspaper advertisement; or (b) is contacted by a
recruiter for the Recruiting Party, where the recruiter has not been instructed by the Recruiting
Party to target the employees of the other Party.



     3.4 Personnel Restriction. With respect to any ACS Project Executive, provided such ACS
Project Executive remains employed by ACS or one of its Affiliates, for a period of twelve (12)
months following the date on which such ACS Project Executive last provided Services to Symetra
hereunder, ACS shall restrict such ACS Project Executive from directly or indirectly, through the
education of other persons or otherwise, providing services to any of the Symetra Competitors.



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ARTICLE 4

ASSETS AND THIRD-PARTY CONTRACTS




     4.1 Symetra Retained Equipment.



          4.1.1 General. Symetra will furnish to ACS, for ACS’ use at no charge, the equipment owned
by Symetra (the “Symetra-Owned Equipment” ), and the equipment leased by Symetra (the
“Symetra-Leased Equipment” ) that are listed in the applicable Schedule 2, but for each such item of
Symetra-Owned Equipment and Symetra-Leased Equipment, only for that portion of the Term occurring
prior to the date on which, in the case of Symetra-Owned Equipment, Symetra fully depreciates such
item of equipment and, in the case of Symetra-Leased Equipment, the lease expires for such item of
Symetra-Leased Equipment, after which time ACS shall de-install and replace such item of equipment
at ACS’ own cost and comply with Symetra’s reasonable directions regarding the disposal or other
disposition of such item of equipment. The Symetra-Owned Equipment and Symetra-Leased Equipment
will remain the property of Symetra and a Symetra-retained expense; however, ACS shall be
responsible for managing all such equipment. The applicable Schedule 2 shall be deemed to be
updated to include any additional Symetra-Owned equipment and/or Symetra- Leased equipment made
available by Symetra for ACS’ use in providing the Services. Notwithstanding the location of any
Symetra-Owned Equipment or Symetra Leased Equipment at an ACS or other non-Symetra facility, or the
failure to list any item of Symetra-Owned Equipment or Symetra-Leased Equipment on the applicable
Schedule 2, all right, title and interest in and to any Symetra-Owned Equipment and Symetra-Leased
Equipment will be and remain in Symetra, and ACS will have no title or ownership interest in such
Symetra-Owned Equipment and Symetra-Leased Equipment. ACS will provide Symetra with reasonable
access to all Symetra-Owned Equipment or Symetra-Leased Equipment located at an ACS or other
non-Symetra facility, and, notwithstanding any contrary terms that may be contained herein, will be
responsible for all costs and expenses associated with repair or replacement of any Symetra-Owned
Equipment or Symetra-Leased Equipment or any part thereof damaged (reasonable wear and tear
excepted) by the employees, agents or invitees of ACS, its Affiliates and/or its Subcontractors
(excluding Symetra).




          4.1.2 Third-Party Approvals. ACS and Symetra shall work together to identify, and Symetra
with ACS’ assistance thereafter will take all actions reasonably necessary to obtain, any consents,
approvals or authorizations from Third Parties as required for ACS to lawfully access, operate,
and use (at or from any location where Services are to be provided) the Symetra-Owned Equipment and
the Symetra-Leased Equipment. Symetra hereby appoints ACS to act as its single point of contact
for all matters pertaining to the Symetra-Owned Equipment and the Symetra-Leased Equipment, and
with Symetra’s approval, ACS promptly will notify all appropriate Third Parties of such
appointment. Symetra may at any time revoke such appointment and/or exercise control over ACS’
actions with respect to such Third Parties.




          4.1.3 Return of Symetra Equipment. Unless a later return date is requested by Symetra,
thirty (30) calendar days following any expiration or termination of this Agreement, ACS will
return each item of Symetra-Owned Equipment and Symetra-Leased Equipment to Symetra (excluding
those items of equipment that previously were replaced by ACS as described in Section 4.1.1) in
substantially the same condition it was in when initially provided to ACS, reasonable wear and tear
excepted.




     4.2 ACS Equipment. “ACS Equipment” means equipment owned, leased or otherwise held by ACS
that is dedicated solely to ACS providing the Services. Notwithstanding the location of



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ACS Equipment at a Symetra facility, all right, title and interest in and to any such ACS
Equipment will be and remain in ACS, and Symetra will not have any title or ownership interest in
the ACS Equipment.




          4.2.1 Use of ACS Equipment by ACS Employees. ACS may provide ACS Equipment for use by ACS
employees on behalf of Symetra, at no additional charge to Symetra.




          4.2.2 Provision of ACS Equipment to Symetra. ACS may, upon mutual agreement with Symetra as to
equipment and charges (if any), provide to Symetra certain ACS Equipment at mutually agreed
location(s), and on a mutually agreed delivery schedule. With the advice of ACS, Symetra will
prepare and maintain at Symetra’s cost and expense any Symetra facility in which ACS Equipment will
be installed in accordance with the manufacturers’ specifications and all applicable codes,
statutes, regulations and standards.




          4.2.3 Installation of ACS Equipment. ACS will arrange for, and will determine the mode of
transportation and installation of each item of ACS Equipment to such location(s) as may be
mutually agreed to by the Parties. If Symetra relocates any Symetra facility in which ACS Equipment
may be installed, Symetra will be responsible for the relocation costs of such ACS Equipment. If
ACS requests the relocation of any ACS Equipment, ACS shall be responsible for the associated
relocation costs.




          4.2.4 Maintenance of ACS Equipment. ACS will be responsible for maintaining all ACS Equipment
after installation at a Symetra location; provided, however, that Symetra will be responsible for
all costs and expenses of repair or replacement to correct any damage to ACS Equipment or any part
thereof (reasonable wear and tear excepted) caused by Symetra, or one of their employees, agents
or invitees (exclusive of the employees, agents and/or invitees of ACS, its Affiliates and/or its
Subcontractors).




     4.3 Software.



          4.3.1 ACS-Licensed Third Party Software.





               (a) Category 1 Software. Schedule L to this Agreement sets forth the software that is
owned by a Third Party and licensed by ACS and/or any of its Affiliates on an enterprise-wide
basis (meaning pursuant to a license that is not specific to Symetra) that Symetra agrees ACS may
use to provide the Services (together with all supporting documentation, media and related
materials, including all modifications, enhancements, updates, replacements and other Derivative
Works thereof, the “Category 1 Software”). ACS shall grant to Symetra, its Affiliates and their
employees and independent contractors the right to use, or receive the benefit of the use by ACS
of, the Category 1 Software during the Term and during the Disentanglement Period. If and as
requested by Symetra during the Disentanglement Period and at no additional charge to Symetra,
ACS shall assist Symetra, its Affiliates and/or the Replacement Provider in procuring a license,
and in securing maintenance and support, with respect to the Category 1 Software commencing on the
Expiration Date and continuing thereafter for as long as Symetra requires at competitive rates
(which license and maintenance and support fees shall be paid by Symetra). Except as provided in
the preceding sentence, all costs and expenses associated with the Category 1 Software including,
without limitation, license, maintenance and support, implementation and/or upgrade fees, shall be
deemed to be included in the Fees. All right, title and interest in
and to the Category 1 Software



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 (excluding Derivative Works that contain Work Product) shall remain with the
applicable Third Party.




               (b) Category 2 Software. Schedule L to this Agreement sets forth the software that is
owned by a Third Party and licensed by ACS and/or its Affiliates solely for use in
performing its obligations under this Agreement (meaning pursuant to a license that is
specific to Symetra) that Symetra agrees ACS may use to provide the Services (together with
all supporting documentation, media and related materials, including all modifications,
enhancements, updates, replacements and other Derivative Works thereof, the “Category 2
Software” ). ACS shall obtain for Symetra a non-exclusive, non-transferable, fully paid
license for Symetra, its Affiliates and their employees and independent contractors to use,
or receive the benefit of the use by ACS, of the Category 2 Software during the Term and
during the Disentanglement Period. If ACS is unable to procure such a license, ACS shall so
notify Symetra in writing and Symetra may: (i) waive all or any portion of the foregoing
license scope requirements in writing; or (ii) become directly involved in negotiations with
the Third Party. ACS shall also procure the advance consent of each Third Party software
vendor of Category 2 Software to an assignment to Symetra, its Affiliates and/or the
Replacement Provider, of the license agreement between such Third Party software vendor and
ACS during the Disentanglement Period. If such consent cannot be obtained from any Third
Party software vendor, ACS shall so notify Symetra in writing, and Symetra may: (iii) waive
this requirement in writing; or (iv) elect to license the applicable Category 2 Software
directly from the applicable Third Party software vendor. If Symetra licenses such Category
2 Software directly from the Third Party software vendor, the software shall be deemed
Category 3 Software for purposes of this Agreement. If and as requested by Symetra during
the Disentanglement Period and at no additional charge to Symetra, ACS shall assist Symetra,
its Affiliates and/or the Replacement Provider in procuring a license (if necessary) and
securing maintenance and support with respect to the Category 2 Software commencing on the
Expiration Date and continuing thereafter for as long as Symetra requires at competitive
rates (which license (if any) and maintenance and support fees shall be paid by Symetra).
All costs and expenses associated with the Category 2 Software including, without
limitation, license, maintenance and support, implementation and/or upgrade fees (but
excluding any assignment-related consent fees as described above), shall be deemed to be
included in the Fees. All right, title and interest in and to the Category 2 Software
(excluding Derivative Works that contain Work Product) shall remain with the applicable
Third Party.



          4.3.2 Symetra-Licensed Third Party Software.





               (a) Category 3 Software. Schedule L sets forth certain Third Party software licensed
by Symetra that ACS may access and/or use in providing the Services during the Term and
during the Disentanglement Period (“Category 3
Software” ). Symetra will attempt to secure
the appropriate consents and approvals required to enable ACS to access and/or use the
Category 3 Software, and if it is unable to do so, the terms of Section 4.3.2(c) shall
apply. ACS will pay all required license, maintenance and support, implementation and
upgrade fees with respect to the Category 3 Software (up to those amounts that ACS would
have been required to pay if such Software constituted Category 2 Software), and Symetra
shall pay all required costs and expenses (including, without limitation, license and
consent charges imposed by software vendors) required to permit usage by ACS of the
Category 3 Software under this Agreement. All right, title and interest in and to the
Category 3 Software



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(excluding Derivative Works that contain Work Product) shall remain with the
applicable Third Party.




               (b) Category 4 Software. Schedule L sets forth certain Third Party software licensed
by Symetra that ACS may access and/or use in providing the Services during the Term and
during the Disentanglement Period (“Category 4
Software” ). Symetra will attempt to secure
the appropriate consents and approvals required to enable ACS to access and/or use the
Category 4 Software, and if it is unable to do so, the terms of Section 4.3.2(c) shall
apply. Symetra will pay all required: (i) license and maintenance fees, including fees
associated with the purchase of any upgrades, with respect to the Category 4 Software; and
(ii) all costs and expenses (including, without limitation, license and consent charges
imposed by software vendors) required to permit usage by ACS of Category 4 Software under
this Agreement. All right, title and interest in and to the Category 4 Software (excluding
Derivative Works that contain Work Product) shall remain with the applicable Third Party.




               (c) Consents and Approvals. If any consents or approvals under this Section 4.3.2 are
required to be obtained but are not reasonably available, Symetra will not be required to
obtain them, and Symetra and ACS agree to negotiate in good faith as to the impact of the
lack of consent and to produce a reasonable alternative.



          4.3.3 Category 5 Software. Schedule L sets forth the software that is owned by ACS and/or
any of its Affiliates that Symetra agrees ACS may use to provide the Services (together with all
supporting documentation, media and related materials, including any and all modifications,
enhancements, updates, replacements and other Derivative Works
thereof, the “Category 5 Software” ). ACS shall grant to Symetra a non-exclusive, non-transferable (except in accordance with
Section 19.5), fully paid, license for Symetra, its Affiliates and their employees and
independent contractors to use, or receive the benefit of the use by ACS of, such Category 5
Software during the Term and during the Disentanglement Period. All costs and expenses associated
with the Category 5 Software including, without limitation, license, maintenance and support,
implementation and/or upgrade fees, shall be deemed to be included in the Fees. All right, title
and interest in and to the Category 5 Software (excluding Derivative Works that contain Work
Product) shall remain with ACS.




          4.3.4 Category 6 Software. Schedule L sets forth the software that is owned by Symetra
and/or any of its Affiliates that Symetra may instruct ACS to use in connection with the Services
(together with all supporting documentation, media and related materials, including any and all
modifications, enhancements, updates, replacements and other Derivative Works thereof, the
“Category 6 Software” ). All right, title and interest in and to the Category 6 Software shall
remain with Symetra and/or its Affiliates, and ACS will have no ownership interests or other rights
in the Category 6 Software, provided that Symetra grants to ACS the right to access and use the
Category 6 Software as necessary to provide the Services. The Category 6 Software will be made
available to ACS in such form and on such media as ACS may reasonably request, together with
existing documentation and other available materials. If ACS is authorized to make any changes to
any Category 6 Software, such changes will be authorized by the change management procedure to be
developed as part of the Standards and Procedures Manual. ACS will document any such changes, and
all such changes shall constitute Category 6 Software and shall be treated as Work Product for
purposes of this Agreement. Without Symetra’s prior written permission, ACS will not access or use
the Category 6 Software for any purpose other than the provision of Services hereunder.




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     4.4 Assigned Contracts. Attachment H sets forth the written support, maintenance and other
agreements that are expected to be assigned to ACS for use in providing the Services. If any
agreement inadvertently was omitted from such Schedule, at Symetra’s request, the Parties shall
work together in a cooperative manner to effectuate the assignment of such agreement to ACS. If
Symetra is unable to effectuate an assignment of any of such agreements, such agreements shall
become subject to the terms of Section 4.5.



     4.5 Managed Contracts. Attachment I sets forth the support, maintenance and other agreements
that will be managed by ACS as part of the Services (collectively,
the “Managed Contracts” ). If
any agreement inadvertently was omitted from such Schedule, at Symetra’s request, the Parties shall
add such agreement to Attachment I. Symetra will attempt to secure the appropriate consents and
approvals required to enable ACS to perform its obligations relating to the Managed Contracts. If
any such consents or approvals are not reasonably available, Symetra will not be required to
obtain them, and Symetra and ACS agree to negotiate in good faith as to the impact of the lack of
consent and to produce a reasonable alternative. Symetra hereby appoints ACS to act during the Term
as its single point of contact for all matters pertaining to the Managed Contracts, and with
Symetra’s approval, ACS promptly will notify all appropriate Third Parties of such appointment.
Symetra may at any time revoke such appointment and/or exercise reasonable control over ACS’ actions with respect to such Third Parties as it relates to the provision of Services.



     4.6 Further Assurances. Symetra and ACS agree to execute and deliver such other instruments
and documents as either Party reasonably requests to evidence or effect the transactions
contemplated by this Article 4.



     4.7 Use of Symetra Facilities. Symetra shall make reasonably necessary office space,
furnishings, and storage space (the “Symetra Facilities”) available to ACS’ on-site personnel performing Services at any Symetra Site throughout the Term and shall maintain Symetra Facilities in
areas and at a level similar to that which it maintains for its own employees performing similar
work. Office space, furnishings, storage space, and assets installed or operated on Symetra
premises, and supplies allocated, are provided “AS IS, WHERE IS,” and “WITH ALL FAULTS”. Symetra
shall provide ACS reasonably unencumbered access to such facilities as is reasonably required for
ACS to provide the Services. Any furnishings (other than basic office furnishings) and office
supplies for the use of ACS’ (and its Subcontractors’) personnel are the exclusive responsibility
of ACS. ACS shall be entitled to make improvements and/or structural, mechanical and/or electrical
changes to any space where ACS’ personnel are performing Services on-site at any Symetra Site,
provided that: (i) such improvements shall have been previously approved in writing by Symetra
(which approval may be withheld in Symetra’s sole discretion); (ii) such improvements shall be made
at no cost or expense to Symetra; (iii) any contractors used by ACS to perform such improvements
shall have been identified or otherwise approved in writing by Symetra; and (iv) Symetra shall be
granted, without further consideration, all rights of ownership in such improvements.



          4.7.1 Specific Hardware and Carrier Charges. ACS shall provide and be responsible for all
such telephone and modem lines, telephones, computers and peripheral devices, computer
connections, and network access, as may be necessary for ACS to provide the Services. ACS shall be
responsible for all usage-based carrier charges incurred by ACS personnel and all usage-based
carrier charges incurred to provide a telecommunications link between ACS and any Symetra Site.




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          4.7.2 Access to Personnel and Information. The Parties shall cooperate with each other in all
matters relating to ACS’ performance of the Services. With respect to Symetra, such cooperation
shall be limited to providing, as reasonably required by ACS for the performance of the Services,
access to Symetra’s administrative and technical personnel, other similar personnel, and network
management records and information.




          4.7.3 Other Facility-Related Obligations. Except as expressly provided in this Agreement,
ACS shall use Symetra Facilities for the sole and exclusive purpose of providing the Services to
Symetra. Use of such facilities by ACS does not constitute a leasehold interest in favor of ACS.
ACS shall use Symetra Facilities in a reasonably efficient manner. The employees and agents of
ACS, and its Subcontractors shall keep the Symetra Facilities in good order, shall not commit or
permit waste or damage to such facilities, and shall not use such facilities for any unlawful
purpose or act. ACS shall comply, and shall cause its employees and
the employees of its Subcontractors to comply, with all applicable laws and regulations, including all of Symetra’s standard
policies and procedures that are provided to ACS in writing regarding access to and use of Symetra
Facilities, including procedures for the physical security of the Symetra Facilities. When Symetra
Facilities are no longer required for performance of the Services, ACS shall return such
facilities to Symetra in substantially the same condition as when ACS began use of such facilities,
subject to reasonable wear and tear. ACS shall not cause the breach of any lease agreements
governing use of Symetra Facilities.




ARTICLE 5

RETAINED AUTHORITIES




     5.1 General. Symetra shall retain the exclusive right and authority to set Symetra’s IT
strategy and to determine, alter, and define any or all of Symetra’s requirements and operational
and/or business processes and procedures. Symetra shall have the right to approve or reject any or
all proposed decisions regarding infrastructure design, technical platform, architecture and
standards and, subject to the change management procedures that will be developed as part of the
Standards and Procedures Manual, will have the right and authority to cause ACS at any time to
change any or all of the foregoing. If ACS can demonstrate that a particular exercise of Symetra’s
rights and authorities as stated in this Section may interfere with or degrade ACS’ provision of
the Services or have a materially detrimental impact on ACS’ cost of providing the Services or time
for delivery of the Services, the Parties shall mutually agree to any proposed exercise of such
right or authority pursuant to the terms of change management procedures that will be developed as
part of the Standards and Procedures Manual prior to the implementation thereof. Symetra shall
consult with ACS to inform ACS of significant changes in Symetra’s IT strategy and changes in its
requirements and business processes relating to the Services. ACS shall actively participate in
any of the foregoing as Symetra requests and shall provide Symetra with advice, information and
assistance in identifying and defining IT projects and future IT requirements to meet Symetra’s
objectives.



     5.2 Specific Retained Authorities. Without limiting the generality of Section 5.1,
Symetra shall retain exclusive authority, discretion and rights of approval with respect to
the activities described in this Section 5.2, and ACS shall obtain Symetra’s prior written
approval before undertaking any such activities.



          5.2.1 Strategic and Operational Planning. Symetra shall retain exclusive authority,
discretion and rights of approval with respect to strategic and operational planning, which
includes the following:




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               (a) developing a series of comprehensive standards and planning guidelines pertaining
to the development, acquisition, implementation, and oversight and management of IT
systems;




               (b) identifying and implementing opportunities for reducing costs for IT systems
considering alternatives suggested by ACS;




               (c) approving or disapproving, in accordance with guidelines established by Symetra,
each proposed acquisition of hardware or software for an IT system;




               (d) approving or disapproving, in accordance with guidelines established by Symetra,
all requests or proposed contracts for consultants for IT systems;




               (e) defining and evaluating IT services, including service availability and minimum
acceptable service levels; service specifications and standards; selection of suppliers;
security requirements; scheduling, prioritization, and service conflict resolution among
End-Users; help desk rules; and general operational management guidelines; and




               (f) service-provider strategy, including selection of providers; specialized provider
relationships (e.g., telecommunications); and quality assurance standards.



          5.2.2 Service Design and Delivery. Symetra shall retain exclusive authority, discretion and
rights of approval with respect to service design and delivery, which includes the following:





               (a) selecting designs of specific technologies and services from alternatives
suggested by ACS;




               (b) selecting specific technologies, hardware and software from alternatives suggested
by ACS for implementation of such designs;




               (c) selecting providers of specific technologies, hardware and software from
alternatives suggested by ACS; and




               (d) selecting implementation schedules and activities from alternatives suggested by
ACS.



          5.2.3 Moves, Adds and Changes. Symetra shall retain exclusive authority, discretion and
rights of approval with respect to ordering move, add and change activities.




          5.2.4 Business Process Reengineering. Symetra shall retain exclusive authority, discretion
and rights of approval with respect to any business process reengineering opportunities identified
by ACS. The Parties shall ensure that performance metrics related to any business process
reengineering are accurately and appropriately developed. Notwithstanding anything contained in
this Section 5.2.4 or anywhere else in this Agreement to the contrary, Symetra shall retain sole
control over its business operations.




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          5.2.5 Contract Management. Symetra shall retain exclusive authority, discretion and rights of
approval with respect to managing this Agreement and Symetra’s relationship with ACS.




          5.2.6 Budget Management. Symetra shall retain exclusive authority, discretion and rights of
approval with respect to managing Symetra’s annual budget for all Symetra operations, utilizing
ACS’ estimates for Services included in the scope of this Agreement and for additional services
planned or anticipated throughout the Term.




          5.2.7 Validation and Verification. Symetra shall retain exclusive authority, discretion and
rights of approval with respect to performing validation and verification activities in relation to
key projects and operational processes.




          5.2.8 Review and Acceptance.





               (a) General. Symetra shall have the right to review and accept or reject all
components, deliverables and systems to be provided by ACS to Symetra under this Agreement,
pursuant to the methodology set forth in this Section.




               (b) Acceptance Testing. Following ACS’ notification to Symetra that ACS has completed
any component or deliverable identified in this Agreement, including In- Scope Service
Requests and Out-of-Scope Work Orders, at a mutually agreed scheduled time thereafter,
Symetra shall begin testing the component or deliverable to determine whether such component
or deliverable conforms to the applicable specifications and/or standards (collectively, the
“Acceptance Criteria”). After Symetra has completed such testing or upon expiration of the
agreed-upon testing period (the “Acceptance Testing Period”), Symetra shall notify ACS in
writing either that: (i) the component or deliverable meets the Acceptance Criteria and
that acceptance of such component or deliverable has occurred (“Acceptance”); or (ii) the
Acceptance Criteria have not been met and, in accordance with subsection (c) below, the
reasons therefor. If the component or deliverable is identified as being part of a larger,
integrated system being developed thereunder, then any Acceptance under the terms of this
subsection shall be understood as being conditional acceptance (“Conditional Acceptance”),
and such component or deliverable shall be subject to Final Acceptance in accordance with
subsection (d) below.




               (c) Cure. If Symetra determines that a component or deliverable does not conform to
the applicable Acceptance Criteria, Symetra promptly shall deliver to ACS an exception
report describing the nonconformity (the “Exception Report”). Within thirty (30) calendar
days following receipt of the Exception Report, ACS shall: (i) perform a Root- Cause
Analysis to identify the cause of the nonconformity; (ii) provide Symetra with a written
report detailing the cause of, and procedure for correcting, such nonconformity; (iii) provide Symetra with satisfactory evidence that such nonconformity will not recur; and (iv)
cure the nonconformity; provided, however, that if the nonconformity is incapable of cure
within such thirty (30) calendar day period then, within such thirty (30) calendar day
period, ACS shall present to Symetra a mutually agreeable plan to cure such nonconformity
within a reasonable amount of time. Upon ACS’ notice to Symetra that ACS has cured any such
nonconformity, Symetra shall re-test the defective component or deliverable for an
additional testing period of up to thirty (30) calendar days or such other period as the
Parties may mutually



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agree
upon in writing, at the end of which period the process described in
subsection (b) above shall be repeated.




               (d)
Final Acceptance. Upon achievement of Conditional Acceptance for all identified
components or deliverables, Symetra shall begin testing the system that is comprised of such
components or deliverables using the applicable test procedures and standards to determine
whether such system performs as an integrated whole in accordance with the Acceptance
Criteria. After Symetra has completed such testing or upon expiration of the testing period
(the “Final Acceptance Testing Period”), Symetra shall notify ACS in writing that: (i) the
system, and all components and deliverables that are a part thereof, meet the Acceptance
Criteria and that final acceptance of the system and such components and deliverables has
occurred (“Final Acceptance”); or (ii) that the Acceptance Criteria have not been met and,
in accordance with subsection (b) above, the reasons therefor. If Symetra determines that
the Acceptance Criteria have not been so met, the process described
in subsection (b) above
shall be initiated, with all references to “component or deliverable” being references to
the “system,” and all references to the “Acceptance Testing Period” being references to the
“Final Acceptance Testing Period.” Neither Conditional Acceptance, Acceptance, nor Final
Acceptance by Symetra shall constitute a waiver by Symetra of any right to assert claims
based upon defects not discernable through conduct of the applicable test procedures and
subsequently discovered in a component or deliverable or the system following Symetra’s
Final Acceptance thereof. Nothing else, including Symetra’s use of the system, or any
component thereof, shall constitute Final Acceptance, affect any rights and remedies that
may be available to Symetra and/or constitute or result in “acceptance” under general
contract law, any state uniform commercial code or any other law.



ARTICLE 6

FEES AND PAYMENT TERMS




     6.1 Fees.



          6.1.1 General. As the sole and entire financial consideration for all of the Services to be
performed by ACS hereunder and for all of the other tasks, services and obligations of ACS, Symetra
shall pay to ACS the amounts set forth in this Article 6. Except as otherwise expressly stated in
this Article 6, and as otherwise provided in this Agreement, Symetra shall not be obligated to pay
ACS any additional fees, assessments, reimbursements or labor and/or general business expenses
(including travel, meals and overhead expenses) for the Services and other obligations of ACS
hereunder.




          6.1.2 Transition Services. For and in consideration of ACS’ provision of the transition
Services pursuant to the terms of the Transition Plan, Symetra shall pay to ACS the Fees for
transition Services specified in Schedule 3 in accordance with the payment terms set forth therein.




          6.1.3
Annual Services Fees. The “Annual Services Fees” for the Services are set forth in
Schedule 3 and, subject to the terms of
Sections 2.3.3 and 6.3, shall be invoiced monthly in twelve
(12) equal payments commencing, for each of the Service Tower Services, on the applicable Handover
Date.




          6.1.4 Service Rates. Services not included in the Services or otherwise designated in this
Agreement as “other services” (collectively,
“Other Services”) that are available from ACS on





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a time-and-materials basis, will be provided at rates that do not exceed the hourly service
rates set forth in Schedule 4 (“Service Rates”). The Service Rates may be increased by ACS once
annually commencing on the first anniversary of the Effective Date; provided, however, that such
annual increases shall not exceed the lesser of: (a) the most recent increase in the CPI; and (b)
three percent (3%), in each case of the then-current Service Rates. ACS shall not increase the
billing rate for a particular individual who is assigned to a Symetra project as a result of a
promotion, change in job classification or otherwise without Symetra’s prior written consent, it
being the understanding of the Parties that Symetra does not expect any rate changes during the
course of a particular project. Additionally, ACS shall bill Symetra in increments of not more than
one (l)-hour for all Other Services provided, and shall in no event bill Symetra for travel time.




          6.1.5 Taxes.





               (a) ACS’ Taxes. The Fees to be paid by Symetra are inclusive of taxes legally imposed
on ACS, including: (i) all applicable sales, use, gross-receipts or value- added, excise,
personal property or other similar taxes based upon or measured by ACS’ cost in acquiring or
providing equipment, materials, supplies or third party services furnished to or used by ACS
in providing and performing the Services; (ii) all taxes payable by ACS with respect to its
net worth, net income or profits; and (iii) other taxes legally imposed on ACS such as
franchise taxes, ad valorem taxes on its owned or leased property, employment taxes with
respect to its employees, intangibles taxes on property it owns or licenses, and the
Washington business and occupation tax.




               (b) Symetra’s Taxes. Notwithstanding Section 6.1.5(a), if any sales, use, privilege,
value added, excise, gross receipts, services and/or similar tax that ACS is authorized by
law to collect from or otherwise pass through to Symetra is imposed on, based on, or
measured by any consideration for the provision of the Services by ACS to Symetra under this
Agreement, Symetra shall be responsible for and pay the amount of any such tax to ACS, or to
the appropriate tax authority as the law may otherwise require, in addition to the Fees.




               (c) Cooperation to Minimize Tax Liability. The Parties agree to reasonably cooperate
with each other in good faith to more accurately determine and reflect each Party’s tax
liability and to minimize such liability to the extent legally permissible. Each Party
shall provide and make available to the other any resale certificates, multi-state benefit
certificates, exemption certificates or other evidence of exemption from tax reasonably requested by either Party. The Parties will also work together to segregate the Fees and other
amounts payable hereunder into separate payment accounts charged under separate invoices, as
appropriate, for Services and the components of the Services (i.e., components that are
taxable and nontaxable, including those for which a sales, use or similar tax has already
been paid by ACS and for which ACS functions merely as a paying agent for Symetra in
receiving goods, supplies or services including licensing arrangements that otherwise are
nontaxable or have previously been subjected to tax, components that are capitalized, and
components that are expensed).



          6.1.6
Currency. Except as set forth herein, all pricing in
Schedule 3 and Schedule 4 shall be
expressed in United States Dollars. Any payments made in local currency other than United States
Dollars (a “Local Currency”) shall be converted into United States Dollars based on the official
exchange rate posted in the U.S. morning edition of the Wall Street Journal on the thirtieth
(30th) day of the month preceding the month in which the currency transaction occurs. By
way of




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example, if a transaction involving a conversion of Local Currency into United States
Dollars takes place on February 15, 2005, the Local Currency shall be converted into United States
Dollars at the exchange rate set forth in the US morning edition of the Wall Street Journal on
January 30,2005.




     6.2 Adjustments to Fees.



          6.2.1 Terminated Services. If, in accordance with the terms set forth in Sections 9.2
and/or 9.5, Symetra terminates or reduces all or any portion of the Services to be provided
here-under, then the Fees relating to such terminated Services shall be appropriately reduced, and
such reduction shall apply as of the applicable Termination Date(s).





               (b) 6.2.2
[***]



          6.2.3 Baselines and ARCs and RRCs. The initial Baselines for each of the Service Tower
Services are set forth in Schedule 3. Promptly following ACS’ completion of an initial asset
inventory as provided in Section 2.5.5, the Parties shall meet to review the accuracy of the
initial Baselines set forth in Schedule 3 and, if appropriate, agree upon any necessary adjustments
to such Baselines and associated pricing. Thereafter, on an annual basis commencing on the first
anniversary of the last Handover Date to occur under this Agreement, the Parties shall adjust all
such Baselines to be equal to Symetra’s actual average resource consumption for each such Baseline
over the prior twelve (12) month period, with an appropriate corresponding adjustment to the
then-current Annual Services Fees. Further, upon the addition or divestiture of a Symetra
Affiliate as described in Section 6.2.4, the Parties shall appropriately adjust all Baselines, and
the then-current Annual Services Fees, to reflect the new Symetra Services volumes associated with
such addition or divestiture. ARCs and RRCs that are applicable to each of the Service Tower
Services, and the methodology for applying such ARCs and RRCs, are set forth in Schedule 3.




          6.2.4 Addition or Divestiture of Affiliates and Business Ventures. ACS acknowledges that,
following the Effective Date, Symetra may want to add additional Affiliates and/or business
ventures of Symetra and/or its Affiliates (including adding new lines of business, adding new
services and products, and acquiring additional blocks of business from Third Parties that complement Symetra’s current businesses and services) to the scope of this Agreement and/or reduce the
number of Affiliates or existing business ventures included within the scope of this Agreement, in
each case as a result of Symetra’s and/or its Affiliates’ acquisition and divestiture activities.
If Symetra wants to add an additional Affiliate or an additional business venture of Symetra and/or
its Affiliates to the scope of this Agreement, provided such additional Affiliate or business
venture is not an ACS Competitor, the Parties shall work together cooperatively and in good faith
to incorporate such Affiliate or business venture within the scope of this Agreement including,
without limitation, by developing an appropriate transition plan; however:





               (a) if ACS will be providing Services to such new Affiliate and/or business venture
that are included within the scope of the Service Tower Services that are then being
provided to Symetra and/or its Affiliates hereunder and: (i) the addition of such Affiliate
and/or business venture will not result in ACS’ provision of a volume of any such Services
that surpasses the upper Pricing Band limit for such Services as specified in Schedule 3,
the pricing for Service Tower Services set forth in Schedule 3 shall apply; or (ii) the
addition of such Affiliate and/or business venture will result in the provision of a volume
of any such Services that surpasses the upper Pricing Band limit for such Services as
specified



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in
Schedule 3, the Parties shall engage in good faith negotiations in order to arrive at new
pricing for the affected Service Tower Services;




               (b) if ACS will be providing Services to such new Affiliate and/or business venture that are
not included within the scope of the Service Tower Services that are then being provided to Symetra
and/or its Affiliates hereunder, the Parties shall engage in good faith negotiations in order to
arrive at pricing for such new Service Tower Services; and




               (c) Symetra shall be responsible for mutually agreed, reasonable set-up costs and expenses
required to accommodate such addition including, without limitation, resource expenses, software
license and consent fees and other similar expenses incurred by ACS in effecting such request.


Symetra (and not its Affiliates) shall be responsible for paying all Fees to be paid to ACS
hereunder. Any SLRs that will be applicable to such new Affiliate and/or business venture shall
become effective not later than ninety (90) calendar days following conclusion of the applicable
transition period. If Symetra divests an Affiliate or exits an existing business venture and wants
to reduce the number of Affiliates or scope of Services included within the scope of this
Agreement, then: (d) Symetra shall so notify ACS and, at Symetra’s option, all or any portion of
the terms of Article 10 shall apply with respect to such divested Affiliate or business venture;
and (e) neither Symetra nor any of its Affiliates shall be obligated to pay a Termination Fee to
ACS as a result of any such scope reduction; however, if and to the extent the divestiture of such
Affiliate and/or business venture will result in ACS providing a volume of any Service Tower
Services that surpasses the lower Pricing Band limit for such
Services as specified in Schedule 3,
the Parties shall engage in good faith negotiations in order to arrive at new pricing for the
affected Service Tower Services.




          6.2.5 Set Off. Symetra may set off against any and all amounts otherwise payable to ACS
pursuant to any of the provisions hereof any and all amounts owed by ACS to it including, without
limitation, any Fee Reductions. Within twenty (20) calendar days following any such set off,
Symetra shall provide to ACS a written accounting of such set off and a written statement of the
reasons therefor.




     6.3 Invoices.



          6.3.1 Services. As of the Effective Date, ACS shall be required to submit monthly invoices to
Symetra for the Services provided hereunder. Invoices shall be in the format as set forth in
Attachment J, and any changes in the monthly invoice formats shall be approved by Symetra in
advance of such changes. All invoices will be subject to Symetra’s review and approval prior to
payment. ACS shall not submit invoices: (a) for Fixed Charges, prior to the first day of the month
in which the invoiced Services will be provided; and (b) for Variable Charges, prior to the last
day of the month in which the invoiced Services were provided. Invoices must provide detailed and
customized information as requested by Symetra. Such detailed and customized information may
include, without limitation, general fee visibility and billing requirements that are consistent
with Symetra’s specific financial requirements and practices. Invoices shall be accompanied by the
SLR Reports and other information and data that support the invoiced Fees, including ARCs and RRCs,
as well as any Fee Reductions. Unless subject to a dispute as provided in Section 6.4, invoices for
Fixed Charges are payable within thirty (30) calendar days after receipt of an invoice that
complies with the requirements of this Agreement, and invoices for Variable Charges are payable
within [***]




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after receipt of an invoice that complies with the requirements of this Agreement. Late
payments of undisputed and otherwise payable amounts will bear
interest at the Interest Rate.




          6.3.2 Other Services. The invoicing milestones for Other Services Fees will be determined by
the Parties on a case-by-case basis. ACS’ invoices for Other Services shall include documentation
that references Symetra’s authorizing documentation, Symetra’s account number, charges and
description. No invoice with respect to Other Services shall be paid unless such Other Services
were pre-authorized in writing by Symetra.




     6.4 Disputed Amounts. Symetra shall have the right to dispute any ACS invoice. Subject to and
in accordance with the provisions of this Section 6.4, Symetra may withhold payment of any ACS
invoice (or part thereof) for Variable Charges that it in good faith disputes as due or owing, but
absent any termination of this Agreement, shall not be entitled to withhold any payments due and
owing for Fixed Charges. In such case, Symetra shall pay any undisputed amounts and provide to ACS
a written explanation of the basis for the dispute. The failure of Symetra to pay a disputed
invoice for Variable Charges, or to pay the disputed part of an invoice for Variable Charges, shall
not constitute a breach or default by Symetra, so long as Symetra complies with the provisions of
this Section 6.4. Any dispute relating to amounts owed by a Party hereunder shall be considered a
Problem and resolved pursuant to Article 17. All of ACS’ obligations under this Agreement shall
continue unabated during the dispute resolution process.



ARTICLE 7

RECORDKEEPING AND AUDIT RIGHTS




     7.1 Recordkeeping. ACS shall maintain complete and accurate financial and accounting
records and books of account relating to its performance of Services under this Agreement,
including electronic copies of all such records and books, utilizing generally accepted accounting
principles (“GAAP”), consistently applied. Further, ACS shall maintain transaction-level
documentation, such as supporting invoices, purchase orders, bills of lading, tax returns,
exemption certificates and other relevant documents, in each case to the extent relating to its
performance of Services under this Agreement. Such records, books and documentation relating to
ACS’ performance of the Services under this Agreement, and the accounting controls related thereto,
shall constitute ACS Confidential Information and shall be sufficient to provide reasonable
assurances that:




               (a) transactions are recorded so as to permit ACS to prepare its financial statements in
accordance with GAAP and to maintain accountability for its assets; and




               (b) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.


Such records, books and documentation relating to ACS’ performance of Services under this Agreement
shall be maintained by ACS at a location(s) made known to Symetra upon Symetra’s request, and
Symetra (or its designees) shall have the right to examine and make extracts of information and
copy any part thereof at such times during normal business hours as ACS and Symetra shall mutually
agree, but in no event later than ten (10) business days after Symetra’s written request to ACS,
unless a shorter time frame is necessary to enable Symetra to comply with any regulatory
requirement. ACS shall retain and maintain accurate records, books and documentation relating to
its performance of Services under this Agreement until the latest of: (i) seven (7) years after the
final payment to ACS hereunder; (ii) one (1) year following the final resolution of all audits or
the conclusion of any




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litigation with respect to this Agreement; or (iii) such longer time period as may be required
by applicable federal, state, local and/or international laws or regulations, including tax laws.




     7.2 Operational Audits. Upon Symetra’s request, but no more often than once annually except:
(a) as necessary for Symetra to respond to any regulatory requirement or inquiry; or (b) as deemed
reasonably necessary by Symetra as a result of Symetra’s good faith belief that ACS has breached
any of its obligations hereunder and such breach has exposed, or in Symetra’s reasonable judgment,
is likely to expose, Symetra to financial or other liabilities in
excess of [***], ACS shall allow
Symetra and/or any independent Third Party selected by Symetra from among the firms listed on
Attachment Q, or any other firm that may then be agreed to by the Parties, to perform operational
and/or security audits with respect to ACS’ performance of its obligations hereunder. If a firm
listed on Attachment Q might otherwise be ineligible to act as Symetra’s auditor under this Section
due to a conflict of interest arising from a former or current representation of ACS, ACS and
Symetra agree that such conflict may be eliminated by the audit firm’s creation of an ethical wall
or other screening procedure satisfactory to both parties. ACS shall grant, and shall cause its
Subcontractors to grant, Symetra and its Third Party representatives full and complete access to
ACS’ and its Subcontractors’ facilities (including, without limitation, the Symetra-specific
network and systems environments so that vulnerability and penetration assessments can be
performed) and all books, records and other documents of ACS and its Subcontractors as they relate
to this Agreement, or as they may be required in order for Symetra to ascertain any facts
relative to ACS’ performance hereunder. ACS shall provide Symetra, or its authorized Third Party
representatives, such information and assistance as requested in order to perform such audits;
provided, however, that the Parties shall endeavor to arrange such assistance in such a way that it
does not interfere with ACS’ performance of the Services. If any audit reveals a material
inadequacy or deficiency in ACS’ performance, the cost of such
audit, up to a cap of [***], shall
be borne by ACS. ACS shall incorporate this paragraph verbatim into any Agreement into which it
enters with any Subcontractor providing Services under this Agreement.



     7.3 Financial Audits. Upon Symetra’s request, but no more often than once annually except:
(a) as necessary for Symetra to respond to any regulatory requirement or inquiry; or (b) as deemed
reasonably necessary by Symetra as a result of Symetra’s good faith belief that a billing error has
occurred involving an amount in excess of [***], ACS shall allow Symetra and/or any independent
Third Party selected by Symetra from among the firms listed on Attachment Q, or any other firm that
may then be agreed to by the Parties, to fully audit ACS’ and/or its Subcontractors’ books and
records to the extent necessary to verify any amounts paid or payable hereunder. If a firm listed
on Attachment Q might otherwise be ineligible to act as Symetra’s auditor under this Section due to
a conflict of interest arising from a former or current representation of ACS, ACS and Symetra
agree that such conflict may be eliminated by the audit firm’s creation of an ethical wall or other
screening procedure satisfactory to both parties. Such auditors shall be provided with full access
to such information, books and records as may be necessary to confirm the accuracy of ACS’
invoices, documents, and other information supporting such invoices, and any pricing adjustment
computations. All such audits shall be conducted during business hours, with reasonable advance
notice, and shall include access to all proprietary and confidential information of ACS and its
Subcontractors to the extent necessary to comply with the provisions of this Section 7.3. If any
such audit reveals that ACS has overcharged Symetra five percent (5%) or more during the period to
which the audit relates (as determined prior to the commencement of the audit), then ACS promptly
shall refund such overcharges to Symetra together with interest thereon retroactive to the date of
the overcharge(s) at the Interest Rate, and the cost of such audit
(up to a cap of [***]), shall be
borne by ACS. Similarly, if any such audit reveals that ACS has undercharged Symetra during the
period to which the audit



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relates (as determined prior to the commencement of the audit), then Symetra shall pay such
undercharge(s) to ACS, together with interest thereon retroactive to the date of the undercharge(s)
at the Interest Rate, up to an aggregate cap for all such undercharges (plus applicable interest)
of [***]. ACS shall incorporate the auditing requirements set forth in this paragraph verbatim into
any agreement into which it enters with any Subcontractor providing Services under this Agreement.




     7.4 Sarbanes-Oxley Compliance.



          7.4.1 General. ACS acknowledges that: (a) Symetra’s management is now and/or in the future may
be required under the SOX Laws to, among other things, assess the effectiveness of its internal
controls over financial reporting and state in its annual report whether such internal controls
are effective; (b) Symetra’s independent auditor is now and/or in the future may be required to
evaluate the process used by management to reach the assessment conclusions described in subsection
(a) above to determine whether that process provides an appropriate basis for management’s
conclusions; and (c) because Symetra has outsourced certain functions to ACS as described in this
Agreement, the controls used by ACS (including, without limitation, controls that restrict
unauthorized access to systems, data and programs) are relevant to Symetra’s evaluation of its
internal controls. Having acknowledged the foregoing, ACS agrees to cooperate with Symetra and its
independent auditor as reasonably necessary to facilitate Symetra’s ability to comply with its
obligations under the SOX Laws including, without limiting the generality of the foregoing, by
complying with the further terms of this Section 7.4.




          7.4.2 SAS 70 Type II Audits.




                    7.4.2.1 ACS Audits. At its sole cost and expense, ACS shall cause a reputable independent
auditor to conduct SAS 70 Type II Audits, and to prepare and deliver to Symetra full and complete
copies of written reports prepared following such audits, in July of each year during the Term
(covering January through June of that year), and in January of each year during the Term (covering
July through December of the prior year). All SAS 70 Type II Audits conducted by ACS pursuant to
this Section 7.4.2.1 shall include a review of all of ACS’ internal controls as they relate to ACS’
customers generally. If requested by Symetra, ACS shall cause its independent auditor to timely
prepare and submit to Symetra for its review and approval a detailed description of the scope of
the first SAS 70 Type II Audit to be conducted by ACS hereunder that specifically identifies
therein, among other things, any limitations on the scope of the audit. Once approved by Symetra,
and unless otherwise agreed to by the Parties in writing, such scope description shall be used for
all SAS 70 Type II Audits to be conducted by ACS hereunder.



                    7.4.2.2
Symetra Audits. At its sole cost and expense and upon reasonable
prior written notice to ACS, but no more frequently than twice annually (unless additional audits
are necessary for Symetra and/or its Affiliates to address a SOX Laws requirement), Symetra shall
have the right (either through its internal audit staff or through a reputable independent auditor)
to conduct audits including, without limitation, SAS 70 Type II Audits, of ACS’ internal controls
as they affect Symetra and/or its Affiliates. In order to facilitate such audits, ACS shall collect
and maintain appropriate books and records documenting ACS’ internal controls (both for ACS’
customers generally and as they affect Symetra and/or its Affiliates) (for purposes of this
Section, collectively, “Records”). Further, with respect to such audits, Symetra and/or its
independent auditors shall have the right to: (a) examine and audit the Records; and (b) question
and interview any ACS personnel, in each case as reasonably necessary or desirable to facilitate
Symetra’s and/or its Affiliates’ ability to comply with the SOX Laws. ACS shall obtain Symetra’s
prior written consent before modifying any of its internal



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controls as they affect Symetra and/or the Records if such modification will, or is likely to,
affect Symetra’s and/or its Affiliates’ compliance under the SOX Laws.




          7.4.3 Results of Inquiries and Corrective Plan. If any SAS 70 Type II Audit report and/or
Symetra’s (or its independent auditor’s) inquiries pursuant to Section 7.4.2.2 reveal any
deficiencies and/or exceptions (including, without limitation, if it is determined that ACS’
internal controls, in whole or in part, fail to constitute effective controls over financial
reporting), ACS shall prepare and deliver to Symetra a detailed plan that is reasonably acceptable
to Symetra for promptly correcting all such deficiencies and exceptions (“Corrective Plan”). ACS
shall deliver such Corrective Plan to Symetra and its independent auditor within ten (10)
calendar days following: (a) ACS’ delivery to Symetra of the SAS 70 Type II Audit report
containing the deficiencies and/or exceptions, if the deficiencies and/or exceptions were
identified in a SAS 70 Type II Audit report prepared pursuant to Section 7.4.2.1; and/or (b) ACS’
receipt of written notice from Symetra that contains a description of such deficiencies and/or
exceptions, if the deficiencies and/or exceptions were identified by Symetra (or its independent
auditor) through the exercise of the rights described in Section 7.4.2.2. ACS shall bear all costs
and expenses associated with correcting all deficiencies and exceptions identified in the
Corrective Plan if such deficiencies and/or exceptions affect ACS’ customers generally. If the
deficiencies and/or exceptions do not affect ACS’ customers generally, but rather are unique to
Symetra, ACS may activate the change management procedures developed by the Parties pursuant to
Section 2.6.2 with respect to the correction of such deficiencies and exceptions.




          7.4.4 Subcontractors. To the extent any ACS Subcontractor will perform any function that
affects Symetra’s financial reporting (irrespective of whether Symetra’s consent to such
subcontract arrangement is required as provided in Section 18.1), the agreement entered into by ACS
and the Subcontractor shall include: (a) substantially the same terms as those appearing in this
Section 7.4 (with any substantive deviations being preapproved in writing by Symetra); and (b) a
provision identifying Symetra as a direct and intended third-party beneficiary of the agreement
between ACS and the Subcontractor.




          7.4.5 Confidential Information. Notwithstanding anything that may be contained herein to the
contrary, Symetra shall have the right to: (a) disclose all ACS Confidential Information received
by Symetra and its independent auditor pursuant to the terms of this Section 7.4 to its employees, independent auditors, attorneys and other Persons with a reasonable need to know; and (b)
use such information as necessary or desirable to facilitate its ability to comply with the SOX
Laws.




ARTICLE 8

REPRESENTATIONS, WARRANTIES AND COVENANTS




     8.1 ACS Representations, Warranties and Covenants.



          8.1.1 Performance of the Services. ACS represents and warrants to Symetra that it has the
skills, resources and expertise to provide, and shall provide, all Services in accordance with the
terms of this Agreement. Without limiting the generality of the foregoing, ACS represents and
warrants to Symetra that all Services and Other Services provided under this Agreement shall be
provided in a timely, professional and workmanlike manner consistent with the highest industry
standards of quality and integrity provided, however, that where this Agreement specifies a
particular standard or criteria for performance, including, without limitation, applicable SLRs,
this warranty is not intended to and does not diminish that standard or criteria for performance.




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          8.1.2 Viruses and Disabling Devices. ACS shall implement and use industry best practices to
identify, screen, and prevent, and shall not introduce, any Disabling Device in hardware, software
or other resources utilized by ACS, Symetra or any Third Party in connection with the Services. A
“Disabling Device” is any virus, timer, clock, counter, time lock, time bomb, Trojan horse, worms,
file infectors, boot sector infectors or other limiting design, instruction or routine and surveil
lance software or routines or data gathering or collecting software or devices that could, if
triggered, erase data or programming, have an adverse impact on the Services, cause the hardware,
software or other resources to become inoperable or otherwise incapable of being used in the full
manner for which such hardware, software or other resources were intended to be used, or that
collect data or information. Without limiting any other rights and remedies that may then be
available to Symetra, at no cost or expense to Symetra and without adversely impacting the Services
or any Other Services, ACS shall reduce and/or eliminate the effects of any Disabling Device
including, without limitation, by restoring and/or bearing the cost to re-create any lost data
and/or software programming.




          8.1.3 Conflicts of Interest.





               (a) No Financial Interest. ACS represents and warrants to Symetra that neither ACS nor any of
its Affiliates has, shall have, or shall acquire, any contractual, financial, business or other
interest or advantage, direct or indirect, that would: (a) materially conflict with, in a manner
that would materially, adversely impact, ACS’ performance of its duties and responsibilities to
Symetra under this Agreement; or (b) result in a breach of ACS’ performance of its duties and
responsibilities to Symetra under this Agreement. ACS promptly shall inform Symetra of any such
improper interest or advantage that may be incompatible with the interests of Symetra.




               (b) No Abuse of Authority for Financial Gain. ACS represents and warrants to Symetra that
neither ACS nor any of its Affiliates has used or shall use the authority provided or to be
provided under this Agreement to improperly obtain financial gain, advantage or benefit for ACS
and/or any of its Affiliates.




               (c) No Use of Information for Financial Gain. ACS represents and warrants to Symetra that
neither ACS nor any of its Affiliates has used or shall use any Symetra Confidential Information
acquired in connection with this Agreement to improperly obtain financial gain, advantage or
benefit for ACS and/or any of its Affiliates.




               (d) Independent Judgment. ACS represents and warrants to Symetra that neither ACS nor any of
its Affiliates has accepted or shall accept another Symetra contract to perform auditing or other
services as described in Section 2.9.2 that would impair the independent judgment of ACS in the
performance of this Agreement.




               (e) No Influence. ACS represents and warrants to Symetra that neither ACS nor any of its
Affiliates: (a) has accepted or shall accept, in a manner that is inconsistent with Symetra’s
standard procurement policies or, if such policies do not exist, industry standard procurement
policies, anything of value, or an inducement that would provide a financial gain, advantage or
benefit, based on an understanding that the actions of ACS or any such Affiliates on behalf of
Symetra would be influenced thereby; and (b) shall attempt to influence, in a manner that is
inconsistent with Symetra’s standard procurement policies or, if such policies do not exist,
industry standard procurement policies, any Symetra employee by the direct or indirect offer of
anything of value.



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               (f) No Payment Tied to Award. ACS represents and warrants to Symetra that neither ACS nor any
of its Affiliates has paid or agreed to pay any Person, other than bona fide employees working
solely for ACS or such Affiliates or any of ACS’ Subcontractors, any fee, commission, percentage,
brokerage fee, gift or any other consideration in a manner that is inconsistent with Symetra’s
standard procurement policies or, if such policies do not exist, industry standard procurement
policies.




               (g) No Collusion. ACS represents and warrants to Symetra that the prices presented in the
ACS Bid were arrived at independently, without consultation, communication or agreement with any
other proposer for the purpose of restricting competition; the prices quoted were not knowingly
disclosed by ACS to any other proposer; and no attempt was made by ACS to induce any other Person
to submit or not to submit a proposal for the purpose of restricting competition.




               (h) Training. ACS represents and warrants to Symetra that it regularly provides ethics
training to its employees on matters such as those covered by this Section 8.1.3.



          8.1.4 Financial Condition and Information.





               (a) Financial Condition. ACS represents and warrants to Symetra that it now possesses, and
covenants that it shall maintain throughout the Term, sufficient financial resources to comply with
the requirements of this Agreement. If ACS experiences a change in its financial condition that may
adversely affect its ability to perform under this Agreement, then it immediately shall notify
Symetra of such change.




               (b) Accuracy of Information. ACS represents and warrants to Symetra that all financial
statements, reports, and other information furnished by ACS to Symetra as part of the ACS Bid or
otherwise in connection with the award of this Agreement fairly and accurately represent the
business, properties, financial condition and results of operations of ACS as of the respective
dates, or for the respective periods, covered by such financial statements, reports or other
information. Since the respective dates or periods covered by such financial statements, reports
or other information, there has been no material adverse change in the business, properties,
financial condition or results of operations of ACS.



          8.1.5 Litigation and Service of Process. ACS represents and warrants to Symetra that as of the
Effective Date there is no pending or anticipated claim, suit or proceeding that involves ACS or
any of its Affiliates or Subcontractors that might adversely affect ACS’ ability to perform its
obligations under this Agreement including, without limitation, actions pertaining to the
proprietary rights described in Section 8.1.6. ACS shall notify Symetra, within fifteen (15)
calendar days of ACS’ knowledge of any such actual or anticipated claim, suit or proceeding.
Without limiting the further terms of Section 13.4, ACS shall notify Symetra, within forty-eight
(48) hours, if process is served on ACS in connection with this Agreement, including any subpoena
for ACS’ records, and shall send a written notice of the service together with a copy of the same
to Symetra within seventy- two (72) hours of such service.




          8.1.6 Proprietary Rights Infringement. ACS represents and warrants to Symetra that: (a) it
owns, or has the right to use, on its own behalf or on Symetra’s behalf, as applicable, any




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and all services, techniques or products provided or used by ACS to provide the Services; and
(b) such services, techniques and products provided or used by ACS to provide the Services do not
and shall not knowingly infringe upon any Third Parry’s patent, and do not and shall not infringe
upon any Third Party’s trademark, copyright or other intellectual-property rights, nor make use of
any misappropriated trade secrets.




          8.1.7 Legal and Corporate Authority. ACS represents and warrants to Symetra that: (a) it
is a Nevada corporation and is qualified and registered to transact business in all locations where
the performance of its obligations hereunder would require such qualification; (b) it has all
necessary rights, powers and authority to enter into and perform this
Agreement and to bind its organization with respect to the same, and the execution, delivery, and performance of this Agreement
by ACS have been duly authorized by all necessary corporate action; (c) the execution and performance of this Agreement by ACS shall not violate any law, statute or regulation and shall not breach
any agreement, covenant, court order, judgment or decree to which ACS is a party or by which it is
bound; (d) it has, and promises that it shall maintain in effect, all governmental licenses and
permits necessary for it to provide the Services contemplated by this Agreement; (e) it owns or
leases and promises that it shall own or lease, free and clear of all liens and encumbrances, other
than lessors’ interests, or security interests of ACS’ lenders, all right, title, and interest in
and to the tangible property and technology and the like that ACS intends to use or uses to
provide the Services, and in and to the related patent, copyright, trademark, and other proprietary
rights, or has received appropriate licenses, leases or other rights from Third Parties to permit
such use; and (f) this Agreement constitutes a valid, binding, and enforceable obligation of ACS.




          8.1.8 Violations. ACS represents and warrants to Symetra that it: (a) is not, and covenants
that it shall not be, in violation of any laws, ordinances, statutes, rules, regulations or orders
of governmental or regulatory authorities to which it is subject as an operator of its business or
in performing its obligations under the Agreement; and (b) has not failed, and shall not fail, to
obtain any licenses, permits, franchises or other governmental authorizations necessary for the
ownership of its properties or the conduct of its business, which violation(s) under the foregoing
subsection (a) or failure(s) under the foregoing subsection (b), either individually or in the
aggregate, might substantially adversely affect ACS’ ability to consummate the transactions
contemplated by this Agreement, or to perform its obligations hereunder.




          8.1.9 Information Furnished to Symetra. ACS represents and warrants to Symetra that all
written information furnished to Symetra prior to the Effective Date by or on behalf of ACS in
connection with this Agreement, including in the ACS Bid, and all the information made a part of
this Agreement is true, accurate, and complete, and contains no untrue statement of a material fact
or omits any material fact necessary to make such information not misleading.




          8.1.10 Previous Contracts. ACS represents and warrants to Symetra that neither it, nor any of
its Affiliates or Subcontractors, is in default or breach of any other contract or agreement
related to information systems facilities, equipment or services that it or they may have with
Symetra or any of its Affiliates. ACS further represents and warrants that neither it, nor any of
its Affiliates or Subcontractors, has been a party to any contract for information system
facilities, equipment or services with Symetra or any of its Affiliates that was finally
terminated within the previous five (5) years for the reason that ACS or such Person failed to
perform or otherwise breached an obligation of such contract.




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          8.1.11 Completeness of Due Diligence Activities. ACS acknowledges that it has been
provided with sufficient access to Symetra facilities, information and personnel, and has had
sufficient time in which to conduct and perform a thorough due diligence of Symetra’s operations
and business requirements and those assets currently used to provide the services. In light of the
foregoing, ACS will not seek any adjustment in the Fees based on any incorrect assumptions made by
ACS in arriving at the Fees.




     8.2 Symetra’s Representations, Warranties and Covenants.



          8.2.1 Legal Authority. Symetra represents and warrants to ACS that it has all necessary rights, powers and authority to enter into and perform this Agreement and that the
execution, delivery and performance of this Agreement by Symetra has been duly authorized by all
necessary corporate action.




          8.2.2 Warranty Disclaimer. Symetra does not make any representation or warranty, express
or implied, with respect to the Services or any component thereof. All hardware, software,
networks, and other assets made available or conveyed by Symetra to ACS under this Agreement are
made available or conveyed to ACS “AS IS, WHERE IS AND WITH ALL FAULTS,” and there are no
representations or warranties of any kind with respect to the condition, capabilities or other
attributes of such items.




          8.2.3 Proprietary Rights Infringement. Symetra represents and warrants to ACS that: (a) it
owns the Category 6 Software; and (b) the Category 6 Software does not and shall not knowingly
infringe upon any Third Party’s patent, and does not and shall not infringe upon any Third Party’s
trademark, copyright or other intellectual-property rights, nor make
use of any misappropriated
trade secrets.




     8.3 General Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY EXPRESS WARRANTIES TO THE OTHER, AND THERE ARE NO IMPLIED WARRANTIES OR
CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.



     8.4
Material Misstatements or Omissions. No representation or warranty by ACS that is
contained in this Agreement or that may be contained in any Schedule, Attachment, or other document that may comprise this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements and facts contained herein or therein not
materially misleading.



ARTICLE 9

TERM AND TERMINATION




     9.1 Term.



          9.1.1 Initial Term. The period during which ACS shall be obligated to provide the
Services hereunder shall commence as provided in Section 2.1.1 and, unless extended as provided in
Section 9.1.2 or terminated earlier in accordance with the terms of this Agreement, shall end at
12:01 am, local time, on the date of the fifth (5th) anniversary of the last Handover
Date to occur under this Agreement (the “Initial Term”).




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          9.1.2 Renewal Terms. Symetra shall have the right to extend the Initial Term for up to two
(2) successive renewal periods of twelve (12) months each (each, a “Renewal Term”) by providing
written notice to ACS in accordance with the terms of Section 19.6 at least three (3) months before
the end of the Initial Term or the then-current Renewal Term, as applicable. At Symetra’s
request, the Parties shall meet within sixty (60) calendar days of ACS’ receipt of Symetra’s notice
to proceed with a Renewal Term to negotiate modifications to the terms of this Agreement. If: (a)
such negotiations are not requested by Symetra; or (b) the negotiations do not result in an agreement on different terms and Symetra elects not to withdraw its
renewal notice, the then-existing terms and conditions of this Agreement shall remain unchanged and in full force and effect during
each such Renewal Term.




          9.1.3 Symetra-Initiated Annual Renegotiation. At Symetra’s request, Symetra and ACS shall meet
at least thirty (30) days prior to each anniversary of the Effective Date of this Agreement to
review the status of the performance of the Agreement and, if requested by Symetra, to negotiate
modifications to the terms hereof. If such modifications are not requested by Symetra, or if the
negotiations with respect to such modifications do not result in an agreement on different terms,
the then-existing terms and conditions of this Agreement shall remain unchanged and in full force
and effect during the following Contract Year.




     9.2 Early Termination.



          9.2.1 For Convenience. Symetra shall have the right to terminate for its convenience
all of the Services in one (1) or more countries, terminate for its convenience one (1) or more
Service Towers in one (1) or more countries and/or to end the Term of this Agreement for its
convenience, in each case by delivering to ACS a Termination Notice at least ninety (90) calendar
days before the Termination Date. If Symetra terminates all or any portion of the Services and/or
terminates this Agreement in its entirety as provided in this Section 9.2.1, upon completion of
ACS’ Disentanglement obligations with respect to the terminated Services, Symetra shall pay to
ACS an amount determined in accordance with Schedule 6 (the “Termination Fee”). Notwithstanding the
foregoing, Symetra shall be obligated to pay to ACS only fifty percent (50%) of the otherwise
applicable Termination Fee if any one (1) or more of the following events (each, a “Triggering
Event”) occurred on or prior to the date of Symetra’s Termination Notice provided that, in the case
of a subsection (a) Triggering Event, Symetra gives ACS a Termination Notice within six (6) months
following the occurrence of such Triggering Event:





               (a) ACS failed to achieve any Critical Milestone on or before the mutually agreed date for
achieving such Critical Milestone; or




               (b) ACS failed to provide the Services in accordance with the SLRs such that any of the
circumstances described in Section 9.3(a) had occurred.



          9.2.2 Change in Control of ACS. Without in any way limiting Symetra’s rights under Section
9.2.1, Symetra shall have the right to terminate all of the Services in one (1) or more countries,
terminate one (1) or more Service Towers in one (1) or more countries and/or to end the Term of
this Agreement, in each case by delivering to ACS a Termination Notice at least ninety (90)
calendar days prior to the Termination Date, in the event of a Change in Control of ACS involving
an entity (the “Acquiring Entity”): (a) that is a Symetra Competitor; or (b) with respect to
which one (1) or more of Symetra’s Third Party vendors fails or refuses to promptly consent to
having the 




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Acquiring Entity act as Symetra’s outsourcing services provider (excluding, if paid by ACS
and/or the Acquiring Entity, those Third Party vendors that will provide such consent upon payment
of an approval or consent fee), provided that in either of the foregoing cases, Symetra gives ACS
written notice of such termination within one (1) year following receipt of written notice from ACS
of the occurrence of such Change in Control event. If Symetra terminates all or any portion of the
Services in one (1) or more countries, terminates one (1) or more Service Towers in one (1) or more
countries and/or ends the Term of this Agreement pursuant to this Section, ACS shall perform its
Disentanglement obligations hereunder until they are fulfilled. Any termination pursuant to this
Section shall not constitute a termination for convenience and: (c) Symetra shall in no event be
required to pay a Termination Fee to ACS with respect to any such termination; and (d) except for
those terms that survive any expiration or termination of this Agreement, Symetra shall have no
further liability or obligation to ACS under this Agreement.




          9.2.3 Termination for Force Majeure Event.





               (a) Symetra Force Majeure Events. If: (i) a Force Majeure Event occurs with respect to
Symetra; (ii) such Force Majeure Event substantially prevents, inhibits and/or frustrates Symetra’s
ability to receive the Services from ACS under circumstances when ACS is otherwise able to provide
the Services to Symetra; and (iii) such Force Majeure Event continues for seven (7) consecutive
calendar days or more, or for ten (10) consecutive or non-consecutive calendar days or more during
any thirty (30) calendar day period, then Symetra shall have the right to terminate the Services
affected by the Force Majeure Event by delivering to ACS a Termination Notice specifying the
Termination Date; provided, however, that ACS shall remain obligated to perform its
Disentanglement obligations hereunder until such obligations have been fulfilled. During such
period, Symetra shall remain obligated to pay the Annual Services Fees and other fees to ACS in
accordance with the terms of this Agreement until such Services are terminated in accordance with
this Section. Any termination pursuant to this Section shall not constitute a termination for
convenience or for cause, and Symetra shall in no event be required to pay a Termination Fee to ACS
with respect to any such termination.




               (b) ACS Force Majeure Events. If a Force Majeure Event substantially prevents, hinders, or
delays ACS’ performance of all or any portion of the Services for seven (7) consecutive calendar
days or more, or for ten (10) consecutive or non-consecutive calendar days or more during any
thirty (30) calendar day period, thereby causing an adverse impact on Symetra’s business
operations, then:




                    (i) with Symetra’s reasonable cooperation, ACS at its sole cost and expense immediately
shall procure the affected Services from an alternate provider, and thereafter provide such
Services to Symetra through the use of the alternate provider until ACS is able to resume
performance of the affected Services in accordance with the terms of this Agreement, provided that
ACS’ obligations under this subsection (i) shall continue for a period that shall not exceed
one-hundred eighty (180) calendar days plus the length of any Disentanglement Period, and during
such period Symetra shall remain obligated to pay the Annual Services Fees and other fees to ACS in
accordance with the terms of this Agreement; and



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                    (ii) once the affected Services have been stabilized with the alternate provider, ACS
shall be obligated to provide such Services to Symetra in accordance with the SLRs and other terms
of this Agreement; and




                    (iii) notwithstanding the foregoing, if ACS is unable to provide the Services through an
alternate provider within seven (7) calendar days following commencement of the Force Majeure
Event, or the one-hundred eighty (180) calendar day time period described in subsection (i) above
expires without ACS having resumed performance of the affected Services in accordance with the
terms of this Agreement, then Symetra shall have the right to terminate all of the Services in one
(1) or more countries, terminate one (1) or more Service Towers in one (1) or more countries and/or
to end the Term, in each case by delivering to ACS a Termination Notice specifying the Termination
Date; provided, however, that ACS shall remain obligated to perform its Disentanglement obligations
hereunder until such obligations have been fulfilled.


Any termination pursuant to this Section shall not constitute a termination for convenience nor
cause, and Symetra shall in no event be required to pay a Termination Fee to ACS with respect to
any such termination.




          9.2.4 HIPAA. ACS acknowledges that the HIPAA terms set forth in Attachment K (and the HIPAA
terms set forth in any separate HIPAA agreement as contemplated under Section 14.4.1), as
applicable, include the right under the circumstances described therein for Symetra (and/or the
applicable Symetra Affiliate) to terminate this Agreement. Having acknowledged the foregoing, ACS
agrees that Symetra shall have the right to terminate this Agreement for cause upon the occurrence
of such circumstances, all in accordance with the terms set forth in Attachment K and/or the
applicable separate HIPAA agreement, as applicable. Symetra shall in no event be required to pay a
Termination Fee to ACS with respect to any such termination.




     9.3 Events of Default. The following events shall constitute “Events of Default,” and
the occurrence of any one (1) or more of such Events of Default by or with respect to a Party shall
constitute a material breach of this Agreement that shall afford the non-breaching Party, as
applicable, the rights and remedies set forth in this Article 9:




               (a) In the case of ACS, ACS: (i) fails to achieve any SLR in a manner that constitutes an
Event of Default as specified in the applicable Schedule; (ii) fails to achieve any particular SLA
that adversely impacts Symetra’s business operations for: (A) four (4) or more hours on two (2)
consecutive calendar days or more; or (B) four (4) or more hours on five (5) non-consecutive
calendar days or more during any thirty (30) calendar day period; (iii) has incurred Fee Reductions
equal to thirty-five percent (35%) or more of the Annual At-Risk Amount within: (A) in the case
of the first Contract Year, the period between the Effective Date and the first six (6) months
following the last to occur of the Hand-over Dates; and (B) in the case of all other Contract
Years, the first six (6) months of any such Contract Year; (iv) has incurred Fee Reductions equal
to the Annual At-Risk Amount at any time during any Contract Year; or (v) fails to comply with any
SLA, and such failure causes a material adverse effect on Symetra’s business;




               (b) In the case of ACS, ACS fails to achieve any Critical Milestone on or before the mutually
agreed date for achieving such Critical Milestone, provided that such



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failure is not due to: (i) the occurrence of a Force Majeure Event; (ii) a delay by Symetra
solely for its own convenience; or (iii) Symetra’s material failure to perform any of its
responsibilities under this Agreement that were a pre-condition to ACS’ ability to perform its
obligations, provided that such failure previously was identified by ACS in writing;




               (c) In the case of ACS, ACS’ material breach of any warranty that, if curable, is not cured
within the time frames, if any, specified in this Agreement for curing any such breach, or if none
is specified elsewhere in this Agreement, then within thirty (30) calendar days, in each case
following ACS’ receipt of written notice of such breach from Symetra;




               (d) In the case of ACS, ACS’ failure to maintain insurance coverage as specified in Article
16, provided that such failure is not cured within thirty (30) calendar days following ACS’ receipt
of written notice of such failure from Symetra;




               (e) In the case of ACS, the institution of bankruptcy, receivership, insolvency,
reorganization or other similar proceedings by or against ACS under any section or chapter of the
United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United
States (or any state thereof), if such proceedings have not been dismissed or discharged within
thirty (30) calendar days after they are instituted; the insolvency or making of an assignment
for the benefit of creditors or the admittance by ACS of any involuntary debts as they mature; the
institution of any reorganization arrangement or other readjustment of debt plan of ACS not
involving the United States Bankruptcy Code; or any corporate action taken by the Board of
Directors of ACS in furtherance of any of the above actions;




               (f) In the case of ACS, ACS makes an assignment of all or substantially all of its assets for
the benefit of creditors, or ACS’ Board of Directors takes any corporate action in furtherance of
the above action;




               (g) In the case of Symetra, Symetra fails to timely make any undisputed payment in accordance
with the terms of Section 6.3, provided Symetra fails to cure such failure within thirty (30)
calendar days after Symetra has received written notice of such failure from ACS;




               (h) In the case of either Party, that Party’s failure to comply with the provisions of Article
13, provided that such failure is not cured, or substantial progress is not made towards a cure,
within seven (7) calendar days following that Party’s receipt of written notice of such failure
from the other Party; or




               (i) In the case of either Party, that Party’s material breach of any of its other obligations
under this Agreement that is not cured within thirty (30) calendar days following its receipt of
written notice of such breach from the other Party.



     9.4 Rights and Remedies of ACS Upon Default of Symetra. Upon the occurrence of an Event of
Default by or with respect to Symetra, subject to Section 9.6, ACS shall be entitled to the
following remedies:




               (a) subject to Symetra’s rights as set forth below in this Section, terminate all of the
Services, terminate one (1) or more Service Towers and/or end the Term; and/or



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               (b) subject to the terms of Section 11.1, seek to recover damages from Symetra; and/or




               (c) if applicable, obtain the additional rights and remedies set forth in Section 17.4;
and/or




               (d) any additional remedies that may be set forth in this Agreement or in any Schedule,
Attachment or Addendum.


Upon the occurrence of a Symetra Event of Default with respect to which ACS exercises a termination
remedy as described in Section 9.4(a), ACS shall effectuate such termination by delivering to
Symetra a Termination Notice specifying the Termination Date, whereupon the terms set forth in
Section 10.2 shall apply; provided, however, that ACS shall remain obligated to perform its
Disentanglement obligations hereunder until they are fulfilled, subject, upon ACS’ request, and
only if such termination is a result of a Section 9.3(g) Symetra Event of Default, to Symetra’s
payment of all: (e) invoices for Fixed Charges monthly in advance; (f) undisputed amounts then due
and owing; and (g) invoices for Variable Charges including, if applicable, Disentanglement
Services, as incurred. Any termination pursuant to this Section shall not constitute a termination
for convenience, and Symetra shall in no event be required to pay a Termination Fee to ACS with
respect to any such termination.




     9.5 Rights and Remedies of Symetra Upon Default of ACS. Upon the occurrence of an Event of
Default by or with respect to ACS, subject to Section 9.6, Symetra shall be entitled to:




               (a) subject to Symetra’s rights as set forth below in this Section, terminate all of the
Services, terminate one (1) or more Service Towers and/or end the Term; and/or




               (b) subject to the terms of Section 11.2, seek to recover damages from ACS; and/or




               (c) if applicable, obtain the additional rights and remedies set forth in Section 17.4;
and/or




               (d) any additional remedies that may be set forth in this Agreement or in any Schedule,
Attachment or Addendum.


Upon the occurrence of an ACS Event of Default with respect to which Symetra exercises a
termination remedy as described in Section 9.5(a), Symetra shall effectuate such termination by
delivering to ACS a Termination Notice specifying the Termination Date; provided, however, that ACS
shall remain obligated to perform its Disentanglement obligations hereunder until they are
fulfilled. Any termination pursuant to this Section shall not constitute a termination for
convenience, and Symetra shall in no event be required to pay a Termination Fee to ACS with respect
to any such termination.




     9.6 Non-Exclusive Remedies. The remedies provided in Sections 9.4 and 9.5 and else where in
this Agreement are neither exclusive nor mutually exclusive, and the Parties shall be entitled to
any and all such remedies, and any and all other remedies that may be available to the Parties at
law or in equity, by statute or otherwise, individually or in any combination thereof.



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     9.7 Survival. The provisions of Articles 10, 11, 15, 16, 18 and 19 and Sections 1.1, 1.3,
1.4, 3.3, 3.4, 4.1.3, 6.1, 6.4, 7.1, 9.2-9.7, 12.1.3, 12.5, 13.2-13.6, 14.4 and any other Sections,
Schedules, Attachments, Addenda or Appendices to this Agreement that, by their nature, may
reasonably be presumed to survive any termination or expiration of this Agreement, shall so
survive.



ARTICLE 10

DISENTANGLEMENT




     10.1 General Obligations. Upon any termination or expiration of this Agreement,
ACS shall provide the Disentanglement (as defined herein) services as set forth in this Article.
ACS shall accomplish a complete transition of any terminated Services from ACS and its
Subcontractors to Symetra, its Affiliates and/or to any replacement provider(s) designated by
Symetra (collectively, the “Replacement Provider”), without causing any unnecessary interruption
of, or causing any unnecessary adverse impact on, the Services, any Other Services and/or
services provided by Third Parties (the “Disentanglement”). Without limiting the generality of the
foregoing, ACS shall: (a) cooperate with Symetra, its Affiliates and/or the Replacement Provider,
including by promptly taking all steps required to assist Symetra in effecting a complete
Disentanglement; (b) provide to Symetra, its Affiliates and/or the Replacement Provider all
information regarding the Services as needed for Disentanglement including, without limitation,
data conversions, interface specifications and related professional services; (c) provide for
the prompt and orderly conclusion of all work, as Symetra may direct, including completion or
partial completion of Other Services and/or Out-of-Scope Services, documentation of work in
process, and other measures to provide an orderly transition to Symetra, its Affiliates and/or the
Replacement Provider; and (d) accomplish the other specific obligations de scribed in this Article
10. ACS and Symetra shall discuss in good faith a plan for determining the nature and extent of
ACS’ Disentanglement obligations and for the transfer of Services in process; provided, however,
that ACS’ obligation under this Agreement to provide all Services necessary for Disentanglement
shall not be lessened in any respect. ACS’ obligation to provide the Services shall not cease until
a Disentanglement that is satisfactory to Symetra has been completed, including the performance by
ACS of all asset transfers, if any, and other obligations of ACS set forth in this Article 10.



     10.2 Disentanglement Period. The process to effectuate the Disentanglement shall begin on any
of the following dates: (a) the date designated by Symetra in connection with expiration of the
Term, which date shall not be earlier than one hundred eighty (180) calendar days prior to the end
of the Term; or (b) the Termination Date specified in any Termination Notice delivered by Symetra
to ACS, if Symetra elects to terminate any or all of the Services pursuant to Sections 9.2 or 9.5
(unless ACS in good faith disputes such termination); or (c) the Termination Date specified in any
Termination Notice delivered by ACS to Symetra pursuant to Section 9.4 (unless Symetra in good
faith disputes such termination), and shall continue: (d) in the case of subsection (a), until
expiration of the Term; or (e) in all other cases, for a period of up to twelve (12) months
thereafter, at Symetra’s option (with the applicable date under subsection (d) or subsection (e)
above on which ACS’ obligation to perform the Services expires being referred to as the
“Expiration Date”). If requested by Symetra, ACS shall perform its Disentanglement obligations on
an expedited basis if Symetra terminates this Agreement pursuant to Sections 9.2.4 or 9.5.



     10.3 Specific Obligations. Disentanglement shall include, without limitation, the performance
of the specific obligations described in this Section and those described in Section 4.3. In connection with Sections 10.3.3 and 10.3.4 below, ACS shall as soon as reasonably possible following
its issuance or receipt of a Termination Notice, but in no event longer than ten (10) Business Days



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thereafter, provide to Symetra a complete and accurate list of all items that will be subject
to conveyance or re-conveyance to Symetra as provided in such Sections. ACS agrees that its
agreements with all Third Parties relating to this Agreement, including Subcontractors, shall not
include any terms that would prohibit or otherwise restrict such Third Parties, including
Subcontractors, from entering into agreements with Symetra, its Affiliates and/or the Replacement
Provider (whether directly or through an assignment) as provided herein.




          10.3.1 Full Cooperation, Information and Knowledge Transfer. During Disentanglement, the
Parties shall cooperate fully with one another to facilitate a smooth transition of the terminated Services from ACS and its Subcontractors to Symetra, its Affiliates and/or the Replacement
Provider. ACS shall provide such cooperation both before and after the Expiration Date, and such
cooperation shall include, without limitation, provision of full, complete, detailed, and
sufficient information (including all information then being utilized by ACS with respect to
programs, tools, utilities and other resources used to provide the Services, as well as the
information and assistance required pursuant to
Section 2.5.6, if applicable) and knowledge
transfer with respect to all such information in order to enable Symetra’s, its Affiliates’ and/or
the Replacement Provider’s personnel (or that of Third Parties) to fully assume, become
self-reliant with respect to, and continue without interruption, the provision of the Services.
ACS shall cooperate with Symetra and all of Symetra’s other service providers to provide a smooth
transition at the time of Disentanglement, with no unnecessary interruption of Services, no
unnecessary adverse impact on the provision of Services or Symetra’s activities and no unnecessary
interruption of, or unnecessary adverse impact on, any services provided by Third Parties.




          10.3.2 Third-Party Authorizations. Without limiting the obligations of ACS pursuant to
Section 12.2 and subject to the terms of any Third Party contracts, if requested by Symetra as part
of the Disentanglement, ACS shall procure at no charge to Symetra any Third Party authorizations
necessary to grant Symetra the use and benefit of any Third Party contracts between ACS and Third
Party contractors used to provide the Services, pending their assignment to Symetra pursuant to
Section 10.3.4.




          10.3.3 Transfer of Assets. If and as requested by Symetra as part of the Disentanglement,
ACS shall convey to Symetra, its Affiliates and/or the Replacement Provider from among those assets
used by ACS to provide the Services (including ACS Equipment), such assets (other than software
assets otherwise covered by the terms of Section 4.3) as Symetra might select from the list
provided by ACS pursuant to Section 10.3 at a price for each such asset that is the lesser of: (a)
the net book value as reflected on ACS’ books and records; and (b) a fair market value price determined by a mutually agreed Third Party, or the then-remaining lease value; provided, however, that
to the extent Symetra has paid all or any portion of the purchase price for any such assets, ACS
shall convey such assets to Symetra at a price equal to the original purchase price less the
applicable amounts paid by Symetra. At mutually agreed times during Disentanglement, ACS shall
remove from Symetra’s premises any ACS assets (including ACS Equipment) that Symetra, its
Affiliates and/or the Replacement Provider elect not to purchase. In addition, although Symetra
acknowledges that ACS does not control Third-Party equipment vendors (if any), if requested by
Symetra, ACS shall assist Symetra, its Affiliates, and/or the Replacement Provider in securing
maintenance (including all enhancements and upgrades) and support with respect to any such
assets for so long as Symetra requires at competitive rates.




          10.3.4 Assignment of Contracts. If and as requested by Symetra as part of the Disentanglement, ACS shall assign to Symetra, its Affiliates and/or the Replacement Provider from




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among those leases, maintenance, support and other contracts used by ACS, Symetra or any other
Person in connection with the Services, such contracts as Symetra might select from the list
provided by ACS pursuant to Section 10.3. ACS’ obligation under this Section 10.3.4 shall include
ACS’ performance of all obligations under such leases, maintenance, support and other contracts to
be performed by it with respect to periods prior to the date of assignment, and ACS shall reimburse
Symetra for any Losses resulting from any claim that ACS did not perform any such obligations.




          10.3.5 Delivery of Documentation and Data. If and as requested by Symetra, ACS shall deliver
to Symetra, its Affiliates, and/or the Replacement Provider all documentation and data related to
ACS’ provision of the Services, including the Symetra Data, all results of ACS’ processing
activities and use of Symetra’s Data, as well as all procedures, standards and operating schedules
(including the Standards and Procedures Manual), held by ACS. Notwithstanding the foregoing, ACS
may retain one (1) copy of such documentation and data, excluding Symetra Data, for archival purposes or warranty support. ACS shall delete all data storage media used in its processing
activities following completion of its Disentanglement obligations. All test and data processing
material shall be destroyed or turned over to Symetra without undue delay.




          10.3.6 Hiring of Employees. ACS shall as soon as reasonably possible following its issuance or
receipt of a Termination Notice, but in no event later than ten (10) Business Days thereafter,
provide to Symetra a complete and accurate list of all Substantially Dedicated Resources who were
involved in providing the Services during the six (6) month period preceding ACS’ issuance or
receipt of such Termination Notice. ACS shall cooperate with and assist (and shall cause its Subcontractors to cooperate with and assist) Symetra, its Affiliates and/or the Replacement Provider in
offering employment, at the sole discretion of Symetra, to any or all of such employees, whether
such offers are made at the time of, after or in anticipation of the Expiration Date. ACS shall be
solely responsible for and shall pay to any such employees of ACS who are hired by Symetra, its
Affiliates, and/or the Replacement Provider, all severance and related payments, if any are payable
pursuant to ACS’ standard policies, and shall cause relevant Subcontractors to pay severance and
related payments to any such employee of a Subcontractor who is hired by Symetra or its designee,
if any are payable pursuant to such Subcontractors’ standard policies. ACS shall release (and
shall cause its Subcontractors to release) from any restrictive covenants including, without
limitation, non-compete agreements, any of the employees hired by Symetra, its Affiliates and/ by
the Replacement Provider. Notwithstanding any agreements that ACS may have with its employees, ACS
shall not take or fail to take any actions that would interfere with or prevent Symetra, its
Affiliates and/or the Replacement Provider from hiring any or all of such Substantially Dedicated
Resources. ACS shall not (and shall ensure that its Subcontractors do not) in any manner
communicate disparaging information about Symetra, its Affiliates, and/or the Replacement Provider,
or any of their employees, to transitioning employees or existing employees of Symetra, its
Affiliates and/or the Replacement Provider.




     10.4 Preparation for Disentanglement.



          10.4.1 Complete Documentation. In addition to and/or as part of the Standards and Procedures
Manual, at all times during the Term, ACS shall provide to Symetra complete information, including
complete documentation, in accordance with the standards and methodologies to be implemented by
ACS, for all software (including applications developed as part of the Services) and hardware, that
is sufficient to enable Symetra, its Affiliates, and/or the Replacement Provider, to fully assume
the provision of the Services to Symetra.




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          10.4.2 Maintenance of Assets. ACS shall maintain all of the hardware, software, systems,
networks, technologies, and other assets utilized in providing Services to Symetra (including
leased and licensed assets) in good condition and in such locations and configurations as to be
readily identifiable and transferable to Symetra or its designees in accordance with the provisions
of this Agreement; in addition, ACS shall insure such assets in accordance with the requirements of
Article 16.




          10.4.3 Advance Written Consents. At all times during the Term, ACS shall seek to obtain
advance written consents from all licensors (in accordance with Section 4.3), lessors and other
contract parties to the conveyance or assignment of licenses, leases and other contracts to
Symetra, its Affiliates, and/or the Replacement Provider upon Disentanglement. If any such consent
cannot be obtained, ACS shall so notify Symetra in writing, and Symetra may: (a) as to the
affected contract(s), waive this requirement in writing; or (b) elect to enter into the applicable
license, lease or other contract directly with the applicable Third Party. ACS also shall obtain
for Symetra the right, upon Disentanglement, to obtain maintenance (including all enhancements and
upgrades) and support with respect to the assets that are the subject of such leases, licenses and
other contracts at the price at which, and for so long as, such maintenance and support is made
commercially available to other customers of such Third Parties.




          10.4.4 All Necessary Cooperation and Actions. ACS shall provide all cooperation, take such
additional actions, and perform such additional tasks, as may be necessary to ensure a timely
Disentanglement in compliance with the provisions of this Article 10.




          10.4.5 Payment for Disentanglement Services. Symetra shall be required to pay (at the Service
Rates, unless other rates are then agreed to by the Parties) for any Disentanglement Services that
are both outside the scope of the Services and cannot be accomplished by the Substantially
Dedicated Resources without adversely impacting ACS’ ability to comply with the SLRs. Notwithstanding the foregoing: (a) the ACS Key Personnel shall exercise all commercially reasonable efforts to minimize the costs and expenses associated with such Disentanglement services; and/or (b)
Symetra may require ACS to re-focus the work efforts of the Substantially Dedicated Resources toward Disentanglement activities and waive any resulting failure of ACS to comply with the SLRs. ACS
shall not: (y) in anticipation of sending or receiving a Termination Notice or the expiration of
the Term, reduce the number of Substantially Dedicated Resources, nor change the identities of the
Substantially Dedicated Resources; or (z) without Symetra’s prior written consent, reduce the number, or change the identities, of the Substantially Dedicated Resources during the Disentanglement
Period. For purposes of this Agreement, “Substantially Dedicated Resources” means those employees,
agents and/or contractors of ACS and/or its Subcontractors that dedicate fifty percent (50%) or
more of their work time to providing Services to Symetra and/or the Affiliates of Symetra, all of
whom shall be identified periodically by ACS pursuant to the requirements set forth in Section
3.1.2.




ARTICLE 11

LIMITATIONS ON LIABILITY



Subject to the further terms of this Article 11, a breaching Party shall be liable to the
other Party for all damages incurred by such Party as a result of the
breaching Party’s failure to
perform its obligations under this Agreement.




     11.1 Cap On Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 11.4 AND 11.5, THE
AGGREGATE CUMULATIVE MONETARY LIABILITY OF EITHER



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PARTY (INCLUDING THE AFFILIATES OF EACH PARTY) FOR ALL CLAIMS ARISING UNDER OR RELATING TO
THIS AGREEMENT AND/OR ANY COUNTRY AGREEMENTS, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS
BROUGHT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED IN THE AGGREGATE TO THE TOTAL
FEES PAID AND/OR PAYABLE UNDER THIS AGREEMENT AND/OR ANY COUNTRY AGREEMENTS DURING THE TWELVE (12)
MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM AROSE (IT BEING THE UNDERSTANDING OF THE
PARTIES THAT IDENTIFYING THE “FIRST” CLAIM WILL ESTABLISH THE BEGINNING POINT FOR ANY TIME PERIOD
DESCRIBED IN THIS SECTION 11.1), EXCEPT THAT IF SUCH EVENT ARISES AT ANY TIME FOLLOWING EXPIRATION
OR TERMINATION OF THIS AGREEMENT, THEN SUCH AMOUNT SHALL BE EQUAL TO THE FEES PAID BY SYMETRA UNDER
THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING SUCH EXPIRATION OR
TERMINATION DATE (THE “CAP”).



NOTWITHSTANDING ANYTHING THAT MAY BE CONTAINED HEREIN TO THE CONTRARY, FEE REDUCTIONS PAID OR
PAYABLE TO SYMETRA SHALL NOT COUNT TOWARD SATISFACTION OF THE CAP.




     11.2 Recoverable Damages. WITHOUT LIMITING THE GENERALITY OF SECTION 11.1, AND NOTWITHSTANDING
ANY CONTRARY TERMS IN SECTION 11.3, ACS AGREES THAT THE FOLLOWING TYPES OF DAMAGES (BY WAY OF
EXAMPLE AND NOT OF LIMITATION) SHALL BE INTERPRETED AND CONSTRUED TO CONSTITUTE DIRECT DAMAGES
RECOVERABLE BY SYMETRA PURSUANT TO SECTION 11.1, AND ACS SHALL NOT CLAIM OTHERWISE:




     A. COSTS AND EXPENSES INCURRED TO SELECT, PROCURE, MIGRATE TO AND IMPLEMENT SUBSTANTIALLY
EQUIVALENT REPLACEMENT SERVICES (FROM AN IN-HOUSE OR REPLACEMENT PROVIDER) INCLUDING, WITHOUT
LIMITATION, COSTS AND EXPENSES INCURRED: (i) FOR EMPLOYEES (WAGES AND SALARIES, BOTH STRAIGHT TIME
AND OVERTIME, AND RELATED EXPENSES, INCLUDING OVERHEAD ALLOCATIONS), CONTRACTORS, TRAVEL
EXPENSES, TELECOMMUNICATIONS CHARGES AND OTHER SIMILAR CHARGES; AND (ii) TO RE-CREATE, RELOAD
AND/OR CONVERT ANY OF SYMETRA’S DATA, AND TO CREATE AND TEST INTERFACES;




     B. REGULATORY FINES AND/OR PENALTIES INCLUDING, WITHOUT LIMITATION, THOSE ASSOCIATED WITH
DELAYS IN ELECTRONIC TRANSFERS OR FAILURES TO COMPLY WITH REGULATORY DEADLINES; AND




     C. IN THE EVENT OF AN ACS CHANGE IN CONTROL PERMITTING SYMETRA TO TERMINATE THIS AGREEMENT
UNDER SECTION 9.2.2(b): (I) IF SYMETRA ELECTS NOT TO EXERCISE ITS RIGHT OF TERMINATION UNDER
SUCH SECTION, ALL COSTS AND EXPENSES INCURRED AS A RESULT OF ANY SUCH CHANGE OF CONTROL INCLUDING,
IF APPLICABLE UNDER THE CIRCUMSTANCES, THE COSTS AND EXPENSES ASSOCIATED WITH SELECTING,
PROCURING, MIGRATING TO AND IMPLEMENTING SUBSTAN-



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TIALLY EQUIVALENT REPLACEMENT THIRD PARTY APPLICATION SYSTEMS IF ONE OR MORE OF SYMETRA’S
APPLICATION VENDORS WILL NOT CONSENT TO HAVING AN ACQUIRING ENTITY ACT AS SYMETRA’S OUTSOURCING
PROVIDER PLUS ANY APPROVAL AND/OR CONSENT FEES NOT PAID UNDER THE TERMS OF SECTION 9.2.2 (THE
“CHANGE IN CONTROL EXPENSES”); AND (II) IF SYMETRA ELECTS TO EXERCISE ITS RIGHT OF TERMINATION
UNDER SUCH SECTION, ALL CHANGE IN CONTROL EXPENSES LESS ANY COSTS AND EXPENSES AVOIDED BY SYMETRA
AS A RESULT OF ITS TERMINATION OF ONE OR MORE CONTRACTS WITH THOSE APPLICATION VENDORS THAT FAIL TO
CONSENT TO HAVING AN ACQUIRING ENTITY ACT AS SYMETRA’S OUTSOURCING PROVIDER.



     11.3 Non-Direct Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 11.4 AND 11.5,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY CLAIMING BY OR THROUGH THE
OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WITH
RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM IN WHICH ANY ACTION IS BROUGHT.



     11.4 Symetra Exceptions from the Limitations on Liability. THE LIMITATION ON SYMETRA’S
LIABILITY SET FORTH IN SECTIONS 11.1 AND 11.3 SHALL NOT APPLY TO LOSSES ARISING OUT OF OR RELATING
TO: (A) SYMETRA’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 15.2 (INDEMNIFICATION BY SYMETRA);
(B) SYMETRA’S FAILURE TO COMPLY WITH THE PROVISIONS OF ARTICLE 13 (SECURITY AND CONFIDENTIALITY);
(C) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SYMETRA OR ANY ENTITY TO WHICH SYMETRA HAS
SUBCONTRACTED ITS OBLIGATIONS UNDER THIS AGREEMENT; OR (D) SYMETRA’S FAILURE TO COMPLY WITH
THE PROVISIONS OF ARTICLE 12 (PROPRIETARY RIGHTS). FURTHER, THE LIMITATION ON SYMETRA’S
LIABILITY SET FORTH IN SECTION 11.1 SHALL NOT APPLY TO LOSSES ARISING OUT OF OR RELATING TO
SYMETRA’S OBLIGATION TO MAKE ANY PAYMENTS THEN DUE AND OWING.



     11.5 ACS Exceptions from the Limitations on Liability. THE LIMITATION ON ACS’ LIABILITY SET
FORTH IN SECTIONS 11.1 AND 11.3 SHALL NOT APPLY TO LOSSES ARISING OUT OF OR RELATING TO: (A) ACS’
INDEMNIFICATION OBLIGATIONS UNDER SECTION 15.1 (INDEMNIFICATION BY ACS), EXCLUDING ACS’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 15.1.8 (NON-PERFORMANCE); (B) ACS’ FAILURE TO COMPLY WITH THE
PROVISIONS OF ARTICLE 13 (SECURITY AND CONFIDENTIALITY); (C) ACS’ REPUDIATION OF, OR UNEXCUSED
REFUSAL TO PERFORM, THE SERVICES IN VIOLATION OF SECTION 17.2 (CONTINUED PERFORMANCE; NO TOLLING
OF CURE PERIODS); (D) THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ACS AND/OR ITS SUBCONTRACTORS;
(E) ACS’ FAILURE TO COMPLY WITH THE PROVISIONS OF ARTICLE 12 (PROPRIETARY
RIGHTS); OR (F) ACS’ INDEMNIFICATION OBLIGATIONS UNDER ATTACHMENT K FOR A VIOLATION OF THE
NON-DISCLOSURE AND/OR USE OBLIGATIONS RELATING TO SYMETRA PHI. FURTHER, THE LIMITATION ON ACS’
LIABILITY SET FORTH IN SECTION 11.3 SHALL NOT APPLY TO ACS’ INDEMNIFICATION OBLIGATIONS UNDER
ATTACHMENT K FOR A VIOLATION OF ANY OBLIGATIONS



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THEREUNDER EXCEPT FOR THOSE DESCRIBED IN THE FOREGOING SUBSECTION (F), BUT ONLY UNTIL SUCH
TIME AS THE DOLLAR VALUE OF THE CAP HAS BEEN ACHIEVED.




     11.6 Costs of Cure. To the extent a Party elects to cure any failure by it to comply with
its obligations under the Agreement, all costs and expenses associated with such cure shall be
borne solely by the curing party and shall in no event count toward satisfaction of the CAP.



     11.7 Attorneys’ Fees. If a Party brings an action, suit or proceeding (including, without
limitation, any arbitration proceeding under Section 19.13) against the other Party to this
Agreement arising out of or relating to this Agreement, or pertaining to a declaration of rights
under this Agreement, the trier of fact may, in the exercise of its discretion, award the Party
it finds to be the prevailing party in such action, suit or proceeding that portion or all of its
attorneys’ fees, costs and expenses that it deems to be appropriate under the facts and
circumstances.



ARTICLE 12

PROPRIETARY RIGHTS




     12.1 Work Product.



          12.1.1 Symetra Sole Owner. Symetra shall be the sole and exclusive owner of all Work
Product, and of all copyright, patent, trademark, trade secret and other proprietary rights in and
to the Work Product. Ownership of the Work Product shall inure to the benefit of Symetra from the
date of conception, creation or fixation of the Work Product in a tangible medium of expression
(whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a
“work-made-for-hire” within the meaning of the Copyright Act of 1976, as amended. If and to the
extent such Work Product, or any part thereof, is not considered a “work-made-for-hire” within the
meaning of the Copyright Act of 1976, as amended, ACS hereby expressly assigns to Symetra all
exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and
to the copyright, patent, trademark, trade secret, and all other proprietary rights therein,
whether in the United States or any other country, territory or jurisdiction, that ACS may have or
obtain, without further consideration, free from any claim, lien for balance due, or rights of
retention thereto on the part of ACS. ACS shall obtain similar written undertakings from all
Subcontractors, employees and consultants who will perform any Services, so as to ensure Symetra’s
ownership of the Work Product as provided herein, and shall not commence the deployment of any such
Subcontractor, employee or consultant until such a written undertaking has been obtained from such
Subcontractor, employee or consultant and delivered to ACS. ACS acknowledges that the Parties do
not intend ACS to be a joint author of the Work Product within the meaning of the Copyright Act of
1976, as amended, and that ACS shall in no event be deemed the joint author of any Work Product.
Symetra shall have unrestricted access to all ACS materials, premises and computer files
containing the Work Product. The Parties will cooperate with each other and execute such other
documents as may be appropriate to achieve the objectives in this Section.




          12.1.2
ACS License to Use. Symetra hereby grants to ACS a non-transferable, non-exclusive,
royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the
Services to Symetra and/or its Affiliates. Except as provided in this Section, neither ACS nor any
Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Symetra, which consent may be
withheld or given in Symetra’s sole discretion.




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          12.1.3 Intellectual Property. ACS promptly and fully shall disclose in writing and deliver to
Symetra all Work Product, which delivery, in the case of computer programs, shall include both
source code and object code and all available user manuals and other documentation, including any
documentation specifically requested by Symetra. ACS shall execute and deliver any and all
patent, copyright or other applications, assignments, and other documents that Symetra requests for
protecting the Work Product, whether in the United States or any other country, territory or
jurisdiction. Symetra shall have the full and sole power to prosecute such applications and to
take all other action concerning the Work Product, and ACS shall cooperate, at Symetra’s expense,
in the preparation and prosecution of all such applications and in any legal actions and
proceedings concerning the Work Product. ACS shall provide to Symetra’s Office of the General
Counsel, on a quarterly basis, a written report with appropriate information to enable Symetra to
pursue all intellectual property registrations or other protections for Symetra’s interests in the
Work Product.




          12.1.4 ACS Underlying and Derivative Works. Notwithstanding anything to the contrary
contained in this Agreement, including in this Section 12.1, ACS shall be the sole and exclusive
owner of all ACS Underlying Works and all Derivative Works thereof that do not contain Work Product
(“ACS Derivative Works”).




          12.1.5 Third-Party Underlying and Derivative Works. Notwithstanding anything to the contrary
contained in this Agreement, including this Section 12.1, the sole and exclusive owner of any Third
Party’s Underlying Works and of all Derivative Works thereof that are created, invented, conceived,
and fixed in a tangible medium of expression by such Third Party (such Derivative Works,
collectively with the Third Party’s Underlying Works, the “Third-Party Works”) shall be the
applicable Third Party; provided, however, that ACS shall not implement or utilize any Third-Party
Works in the provision of any Services unless the Third-Party Works are commercially available or
ACS shall have used commercially reasonable efforts to cause such Third Party to agree to grant to
Symetra (at Symetra’s cost and expense) a perpetual, irrevocable, non-exclusive, fully-paid license
to use, copy, modify, and sublicense the Third-Party Works in connection with the conduct of
Symetra’s business.




     12.2 Rights and Licenses. ACS shall obtain from Third Parties all rights and licenses required to perform the Services.



     12.3 Symetra Data. Symetra shall permit ACS to have access to Symetra Data solely to the
extent ACS requires access to such data to provide the Services in accordance with the terms of
this Agreement. ACS may only access and process Symetra Data in connection herewith or as directed by Symetra in writing and may not otherwise modify Symetra Data, merge it with other data,
commercially exploit it or engage in any other practice or activity that may in any manner
adversely affect the integrity, security or confidentiality of such data, other than as
specifically permitted herein or as directed by Symetra in writing. ACS understands and agrees that
Symetra owns all right, title, and interest in and to the Symetra Data and in and to any
modification, compilation or Derivative Works therefrom
(collectively, “Data and Modified Data”),
and also owns all copyright, trademark, trade secrets, and other proprietary rights in and to the
Data and Modified Data.



     12.4 Infringement. Each of the Parties shall perform its responsibilities under this
Agreement in a manner that does not infringe, or constitute an infringement or misappropriation of,
any patent, trade secret, copyright or other proprietary right of any Third Party, or a violation
of the



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other Party’s software license agreements or intellectual property rights disclosed to or
known by such Party.




     12.5 Cooperation. If at any time Symetra brings, or investigates the possibility of bringing,
any claim against any Person for infringement of any patent, trademark, copyright or similar
proprietary right of Symetra, including misappropriation of trade secrets and misuse of
confidential information, then ACS, upon the request and at the expense of Symetra, shall cooperate
with and assist Symetra in the investigation or pursuit of such claim, and provide Symetra with any
information in the possession of ACS that may be of use to Symetra in the investigation or pursuit
of such claim.



ARTICLE 13

SECURITY AND CONFIDENTIALITY




     13.1 Security.



          13.1.1 General. ACS shall provide all Services utilizing security technologies and
techniques in accordance with industry best practices and Symetra’s security policies, procedures
and requirements, including those relating to the prevention and detection of fraud or other
inappropriate use or access of systems and networks. Without limiting the generality of the
foregoing, ACS shall implement and/or use network management and maintenance applications and tools
and appropriate fraud prevention and detection and encryption technologies. In no event shall ACS’
actions or inaction result in any situation that is less secure than: (a) the security provided
to Symetra as of the Effective Date; or (b) the security ACS then provides for its own systems and
data, whichever is greater.




          13.1.2 Information Access. Prior to performing any Services, ACS and its employees, agents
and Subcontractors who may access Symetra Data and software shall execute the Parties’ agreements
and forms concerning access protection and data/software security consistent with the terms and
conditions of this Agreement. ACS and its employees, agents and Subcontractors shall comply with
all policies and procedures of Symetra and its Affiliates regarding data access, privacy and
security, including those prohibiting or restricting remote access to Symetra systems and data.
Symetra shall authorize, and ACS shall issue, any necessary information-access mechanisms, including access IDs and passwords, and ACS agrees that the same shall be used only by the personnel to
whom they are issued. ACS shall provide to such personnel only such level of access as is minimally
necessary to perform the tasks and functions for which such personnel are responsible. ACS shall
from time-to-time, upon request from Symetra but in the absence of any request from Symetra at
least quarterly, provide Symetra with an updated list of those ACS personnel having access to
Symetra’s and/or its Affiliate’s systems, software, and data, and the level of such access.
Computer data and software, including Symetra Data, provided by Symetra or accessed (or accessible)
by ACS personnel or ACS’ Subcontractor personnel, shall be used by such personnel only in
connection with the obligations provided hereunder, and shall not be commercially exploited by ACS
or its Subcontractors in any manner whatsoever. Without limiting the terms of Section 9.6,
failure of ACS or ACS’ Subcontractors to comply with the provisions of this Article 13 may result
in Symetra restricting offending personnel from access to Symetra computer systems or Symetra
Data. It shall be ACS’ obligation to maintain and ensure the confidentiality and security of
Symetra Data.




          13.1.3 Background Checks. If ACS assigns Persons (whether employees, contractors (including
Subcontractors) and/or agents) to perform work at any Symetra Site, ACS shall conduct a background
check on all such Persons and review the results of the background check of each




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Person to verify that the Person meets ACS’ standards for employment before presenting the
results of the background check to Symetra and requesting that Symetra grant access to any such
Person to any Symetra Site. No Person shall have access to any Symetra Site prior to delivery of
the written background check to Symetra and Symetra’s approval of such Person. Symetra shall be
permitted, at its sole option, to refuse access of any Person to any Symetra Site. Such background
check shall be in the form generally used by ACS in its initial hiring of employees or contracting
for contractors (including Subcontractors and/or agents) or, as applicable, during the
employment-screening process but, at a minimum, must have been performed within the preceding
twelve (12) month period and detail the individual’s arrest record, credit history and employment
history. ACS shall obtain all releases, waivers or permissions required for the release of such
information to Symetra. Prior to presenting any Person to Symetra, with verification on an annual
basis, ACS’ human resources manager for this Agreement shall certify that the background check
required by this Section 13.1.3 has been conducted with respect to all Persons assigned by ACS to
perform work at any Symetra Site.




          13.1.4 Other Policies. ACS shall, and shall cause its employees, contractors (including
Subcontractors) and agents to, abide by all policies and procedures of Symetra and its Affiliates
that may be established from time-to-time, and which are provided to ACS in writing including,
without limitation, rules and requirements for the protection of premises, materials, equipment and
personnel. Without limiting the terms of Section 9.6, any violations or disregard of these rules
shall be cause for denial of access by such personnel to properties of Symetra and/or its
Affiliates. The operation of ACS vehicles or private vehicles of ACS personnel on Symetra’s
property shall conform to posted regulations and safe driving practices. Vehicular accidents on
Symetra’s and/or its Affiliates property and involving ACS personnel shall be reported promptly to
the appropriate Symetra security personnel.




     13.2 Confidential Information.



          13.2.1 Non-Disclosure.





               (a) All Confidential Information disclosed by the Disclosing Party to the Receiving Party
shall be deemed the sole property of the Disclosing Party and/or its Affiliates and shall be used
solely by the Receiving Party and its employees, contractors (including Subcontractors) and agents
for purposes of performing the Receiving Party’s obligations and/or exercising the Receiving
Party’s rights under this Agreement, and, except as permitted under Sections 13.2.3 and 13.3, shall
not be published, transmitted, released or disclosed by the Receiving Party or its employees,
contractors (including Subcontractors) or agents to any other Person without the prior written
consent of the Disclosing Party, which consent shall not be unreasonably withheld.




               (b) The Receiving Party shall implement and maintain appropriate policies and procedures to
safeguard the confidentiality of the Disclosing Party’s Confidential Information in accordance
with subsection (a) above. The Receiving Party shall require as a condition of any subcontract
that the Subcontractor expressly acknowledges and agrees to be bound by confidentiality
requirements that are no less restrictive than the requirements to which the Receiving Party is
bound under this Agreement.



          13.2.2 Disclosure Requests. Except to the extent Confidential Information is permitted to be
disclosed pursuant to Sections 13.2.3 or 13.3, any and all requests, from whatever




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source, for copies of, access to, or disclosure of the Disclosing Party’s Confidential
Information shall be promptly submitted to the Disclosing Party for disposition.




          13.2.3 Permitted Disclosures. The Disclosing Party shall require each of its contractors
(including Subcontractors) and agents providing Services hereunder or otherwise having access, in
whatever form or function, to the Disclosing Party’s Confidential Information, to execute, prior to
any such activity or access, a confidentiality agreement, the terms of which shall be no less
stringent than the confidentiality requirements to which the Receiving Party is bound under this
Agreement and under which such contractors (including Subcontractors) and agents agree to protect
and maintain as confidential all of the Disclosing Party’s Confidential Information (including,
without limitation, following any termination of the Disclosing Party’s relationship with any such
contractor (including Subcontractors) and/or agents). The Receiving Party may disclose the
Disclosing Party’s Confidential Information only to those of such employees, contractors (including
Subcontractors) and agents who have a need to know the Disclosing Party’s Confidential Information
in order to perform their duties and/or exercise their rights under this Agreement, as determined
by an appropriate official of the Disclosing Party, and only to the extent minimally necessary.
Regardless of the form of any agreement executed with Receiving Party’s contractors (including
Subcontractors) and agents, ACS shall retain liability for all breaches of this Agreement and for
the acts or omissions of its officers, employees (including former employees), contractors
(including Subcontractors), agents and the like, including the unauthorized use or disclosure of
the Disclosing Party’s Confidential Information, by its officers, employees (including former
employees), contractors (including Subcontractors), agents and the like. Notwithstanding any
contrary terms that may be contained herein, the Receiving Party shall have the right to disclose
the Disclosing Party’s Confidential Information to the Receiving Party’s accountants, attorneys,
financial advisors, banks and other financing sources and other similar advisors who have a need to
know such Confidential Information, and Symetra shall have the right to disclose ACS’ Confidential
Information to a Replacement Provider to the extent strictly necessary.




     13.3 Legally Required Disclosures. The Receiving Party may disclose the Confidential
Information of the Disclosing Party to the extent disclosure is based on the good faith written
opinion of the Receiving Party’s legal counsel that disclosure is required by law or by order of a
court or governmental agency or in order to comply with applicable Securities and Exchange
Commission (“SEC”) requirements; provided, however, that the Receiving Party shall give advance
notice of such requested disclosure and legal opinion to the Disclosing Party prior to any such
disclosure (except in the case of SEC-required disclosures or when a judicial or other binding
governmental order or decree or binding written instruction of a governmental regulator may
prevent such notice) and shall use all commercially reasonable efforts to obtain a protective order
or otherwise protect the confidentiality of the Disclosing Party’s Confidential Information.
Notwithstanding the foregoing, the Dis-closing Party reserves the right to obtain a protective
order or otherwise protect the confidentiality of such Confidential Information. For purposes of
this Section, the Office of General Counsel of each Party may act as that Parry’s legal counsel.



     13.4 Notification and Mitigation. In the event of any impermissible disclosure, loss or
destruction of Confidential Information, the Receiving Party shall immediately notify the
Disclosing Party and take all reasonable steps to mitigate any potential harm or further
disclosure, loss or destruction of such Confidential Information.



     13.5 Return of Confidential Information. Upon the expiration or termination of the Term, and
at any other time upon written request by the Disclosing Party, the Receiving Party



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promptly shall return to the Disclosing Party all Confidential Information (and all copies
thereof) of the Disclosing Party then in its possession or control, in whatever form, or, in the
case of a written request by the Disclosing Party, the Confidential Information specified in such
request as then in the Receiving Party’s possession or control, in whatever form. In addition,
unless the Disclosing Party otherwise consents in writing, the Receiving Party also shall deliver
to the Disclosing Party or, if requested by the Disclosing Party, shall delete or destroy, any
copies, duplicates, summaries, abstracts or other representations of any such Confidential
Information or any part thereof, in whatever form, then in the possession or control of the
Receiving Party. Notwithstanding the foregoing: (a) ACS may retain one (1) copy of documentation
and data, excluding Symetra Data, for archival purposes or warranty support; provided, however,
that any subsequent disclosure of such archived data shall comply with this Article 13; and (b)
Symetra may retain ACS’ Confidential Information (excluding any Category 5 Software) to the extent
required by law or regulation, to the extent otherwise permitted under this Agreement and for legal
archival purposes.




     13.6 Injunctive Relief. If the Receiving Party or anyone acting on its behalf or operating
under its control, including employees, Subcontractors and other Third Parties, publishes,
transmits, releases, discloses or uses any Confidential Information of the Disclosing Party in
violation of this Article 13, or if the Disclosing Party anticipates that the Receiving Party may
violate or continue to violate any restriction set forth in this Article 13, then the Disclosing
Party shall have the right to have the provisions of this Article 13 specifically enforced by any
court having equity jurisdiction, without being required to post bond or other security and without
having to prove the inadequacy of available remedies at law, it being acknowledged and agreed that
any such violation shall cause irreparable injury to the Disclosing Party and that monetary damages
shall not provide an adequate remedy.



ARTICLE 14

LEGAL COMPLIANCE




     14.1 Compliance with All Laws and Regulations. ACS shall perform its obligations
hereunder in compliance with all laws and regulations throughout the world that are applicable to
it as an operator of its business and/or in connection with performance of its obligations
hereunder, including, without limitation, all laws and regulations relating to the collection,
dissemination, transfer and use of data, specifically including, without limitation, the privacy
and security of confidential, personal, sensitive or other protected data. ACS acknowledges and
agrees that it may be required to modify the manner in which it provides the Services to Symetra in
order to be compliant with policies and procedures developed by Symetra that are designed to
assure compliance with HIPAA, the California Statute, GLB and all other applicable laws and
regulations. Without limiting the generality of the foregoing, such policies and procedures may
require ACS to cause its employees and those of its Subcontractors with access to the Symetra Data
to execute confidentiality and non-disclosure agreements. Any such change required under this
Section 14.1 shall be effected through the applicable change management process, and Symetra shall
be responsible for any additional costs or expense resulting from such change, provided that ACS
use all commercially reasonable efforts to mitigate any such additional costs and expenses. No
provision of this Agreement, including any InScope Service Request, shall have any force or
effect if it would cause a violation of any law or regulation, or would require any consent or
approval to prevent any such violation.



     14.2 ACS Permits, Licenses and Assistance. ACS shall obtain and maintain, and shall cause
its Subcontractors to obtain and maintain, at no cost to Symetra, all approvals, permissions,
permits, licenses, and other forms of documentation required in order to comply with all foreign or



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domestic statutes, ordinances, and regulations or other laws that may be or become applicable
to performance of Services hereunder. Symetra reserves the right to reasonably request and review
all such applications, permits, and licenses prior to the commencement of any Services hereunder.
If requested, Symetra shall cooperate with ACS, at ACS’ cost and expense, to obtain any such
approvals, permits and licenses. Similarly, and without additional charge or fee, ACS shall provide
relevant assistance to Symetra in its attempt to fully comply with any domestic or foreign laws
concerning data protection, including any obligation to certify or respond to any data protection
authority regarding such matters.




     14.3 Hazardous Materials. In providing the Services, ACS shall be responsible for compliance
with all Environmental Laws and all other laws, rules, regulations, and requirements regarding
Hazardous Materials, health and safety, notices and training. ACS shall not store any Hazardous
Materials at any Symetra Site. ACS agrees to take, at its expense, all actions necessary to
protect Third Parties including, without limitation, employees and agents of Symetra, from any
exposure to Hazardous Materials generated or utilized in its performance under this Agreement. ACS
agrees to report to the appropriate governmental agencies all discharges, releases, and spills of
Hazardous Materials that are required to be reported by any Environmental Law and to immediately
notify Symetra of same. ACS shall not be liable to Symetra for Symetra’s failure to comply with, or
violation of, any Environmental Law.



     14.4 HIPAA.



          14.4.1 General. In order to address certain requirements that are now or will become
applicable to Symetra and/or one (1) or more of its Affiliates pursuant to regulations issued
pursuant to the Health Insurance Portability and Accountability Act of 1996 (as the same may have
been and/or may be amended from time-to-time, “HIPAA”), ACS shall comply with the requirements set
forth in Attachment K and shall, if and as requested by Symetra, execute with any such Affiliate a
separate agreement that contains terms and conditions that are substantially the same as those set
forth in Attachment K. Notwithstanding anything contained herein to the contrary, ACS agrees that
Attachment K (and any separate agreements that may be entered into by ACS and any Symetra
Affiliate) shall be modified appropriately if Symetra determines that such modifications are
necessary for Symetra and/or its Affiliates to comply with any and all modifications to HIPAA
and/or its implementing regulations.




          14.4.2 Security Requirements. ACS acknowledges that certain Security and Electronic
Signature Standards have been issued by the Secretary (as the same may have been and/or may be
modified from time-to-time, the “Security Standards”) and that such Security Standards will affect
the manner in which ACS provides the Services to Symetra hereunder. Having acknowledged the
foregoing, ACS agrees that it will cooperatively work with Symetra and, as part of the Services,
take all actions that may be necessary to ensure Symetra’s and/or it Affiliates’ ability to comply
with the Security Standards. ACS agrees that this provision shall equally apply with any other
security or privacy standards as may be promulgated under domestic or foreign law concerning such
matters.




     14.5 California Personal Information Statute. ACS acknowledges that Symetra Confidential
Information may include personal information pertaining to California residents. ACS shall ensure
that the system and/or the network complies with the requirements of California Civil Code §1798.82
et. seq.; or any similar federal or state statute that may enacted (the “California Statute”),
including the encryption of all personally-identifiable Symetra Confidential Information. If ACS believes that personally-identifiable Symetra Confidential Information has been subject to
unauthorized



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access, ACS shall provide written notice to Symetra within twenty-four (24) hours. If Symetra
determines that actions must be taken to comply with the California Statute, ACS shall fully
cooperate with Symetra to achieve such compliance and all such compliance-related activities by
both Symetra and ACS shall be performed at ACS’ cost. Nothing contained herein shall be deemed to
release ACS from its indemnification obligations as set forth in Section 15.1.




     14.6 Data Protection. The terms of this Section shall be applicable in European Union
countries where this Agreement may be performed, and shall be “localized”, as necessary, to address
local requirements and considerations.




               (a) General Compliance. ACS shall during the Term comply with all applicable laws,
regulations, regulatory requirements and codes of practice in connection with all processing of
personal data by ACS pursuant to its obligations under this Agreement, including, without
limitation, by complying with all the provisions of the applicable country’s data protection act
and its amendments if any (the “Act”) and any regulations or instruments thereunder, and of
Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals
with Regard to the Processing of Personal Data and on the Free Movement of Such Data and any
relevant recommendation issued by Article 29 working group and/or the data protection authority in
the applicable country (together with the Act, the “Data Protection Laws”), and shall not do, or
cause or permit to be done, anything which may cause or otherwise result in a breach by Symetra of
the same. ACS will oblige its employees and Subcontractors (if any) to comply with applicable
Data Protection Laws and to undertake in writing only to collect, process or use any personal data
received from Symetra for purposes of providing the Services and not to make personal data received
from Symetra available to any Third Parties.




               (b) Security. ACS warrants and undertakes that, as part of the Services provided to Symetra,
it shall take, implement and maintain all such technical and organizational security procedures
and measures necessary or appropriate to preserve the security and confidentiality of personal data
processed by it and protect such personal data against unauthorized or unlawful disclosure, access
or processing, accidental loss, destruction or damage, including any technical and organizational
security procedures and measures as may be required or directed by Symetra from time to time.
Having regard to the state of the art and the cost of their implementation, ACS shall ensure that
such measures will provide a level of security appropriate to the risks represented by the Services
to the processing and in consideration of the nature of the data to be protected. In addition, and
without limiting the foregoing, ACS agrees, at Symetra’s request, to provide relevant assistance to
Symetra to devise appropriate technical and organization measures. By executing this Agreement,
Symetra appoints ACS as a data processor of Symetra Data. As a processor of such data, ACS will
process Symetra Data as specified in this Agreement. ACS may perform such processing as it
reasonably considers necessary or appropriate to perform the Services. Upon expiration or
termination of this Agreement and, if necessary, Symetra will give the data protection authority
prompt notice of the termination of the appointment of ACS as Symetra’s data processor.




               (c) Trans-border Data Flows. ACS will not transfer any Symetra Data across a country border
unless ACS reasonably considers such transfer necessary for ACS’ performance of the Services and
obtains Symetra’s prior written consent.



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               (d) ACS as a Data Processor. ACS understands and acknowledges that, to the extent that
performance of its obligations hereunder involves or necessitates the processing of personal data,
it shall act only on instructions and directions from Symetra. ACS shall comply promptly with all
such instructions and directions received by ACS from Symetra from time to time. ACS undertakes to
keep the Symetra Data confidential and not to disclose personal data to any Third Party in any
circumstances other than at Symetra’s specific written request or in compliance with legal
obligation. If ACS subcontracts any of its obligations under this Agreement, it shall ensure
contractually that the provisions agreed hereunder also apply towards the subcontractor before any
Symetra Data is transmitted to the subcontractor. ACS undertakes to monitor its subcontractors’
compliance with such provisions as often as it deems necessary.




               (e) Transfer Outside of the European Union or Outside of a Country Considered as Providing an
Adequate Level of Protection Pursuant to Article 25 of the EU Directive 95/46 of 24 October 1995.
As part of the Services provided to Symetra under this Agreement, ACS undertakes to transfer
Symetra’s personal data to its Affiliates, which may be located in countries considered as not
providing an adequate level of protection only if necessary for the performance of the Services.
With respect to trans-border data flows mentioned under Section 14.6(c) above, ACS also undertakes
to execute, as part of the Services provided to Symetra, any documents, including any data transfer
agreement, that may be required for Symetra to comply with the Data Protection Laws.




               (f) Data Subject Right of Access and Rectification. If Symetra is required to provide
information to a data subject regarding that individual’s personal data, ACS will reasonably
cooperate with Symetra in providing such information to the full extent necessary to comply with
Data Protection Laws, and where a request by a data subject is made directly to ACS, it shall as
soon as reasonably practicable notify Symetra upon receipt of a request (whether oral or in
writing) from such an individual providing sufficient details and information as are required by
Symetra to comply with its obligations under the Data Protection Laws. If further to this request
the personal data must be rectified, ACS undertakes to amend the personal data as instructed by
Symetra.



ARTICLE 15

INDEMNIFICATION




     15.1 By ACS.



          15.1.1 Intellectual Property. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay all settlements, judgments, awards, fines, penalties,
interest, liabilities, losses, costs, damages and expenses, including attorneys’ fees and
disbursements and court costs (collectively, “Losses”), sustained or incurred by any of the Symetra
Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third Party
against any of them for actual or alleged infringement of any patent, trademark, copyright or other
proprietary right, including misappropriation of trade secrets, arising out of or relating to
technology (excluding the Category 6 Software) and/or methods or processes used by ACS to provide
the Services (an “Infringement Claim”). If Symetra’s right to use any such technology or enjoy
continued use of any method or process is enjoined or appears likely to be enjoined, at its sole
cost and expense, ACS shall either procure a license to enable Symetra to continue such use or
replace or modify the technology,




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method or process so that it no longer is subject to any such claim, suit or proceeding while
maintaining equivalent or better functionality and performance capabilities in a form acceptable to
Symetra.




          15.1.2 Personal Injury, Property and Other Damage. ACS shall indemnify, defend, and hold
harmless the Symetra Indemnitees from and against, and shall pay any and all Losses sustained or
incurred by any of the Symetra Indemnitees, based upon or relating to any claim, suit or proceeding
brought by any Third Party, ACS employee or Symetra employee against any of the Symetra Indemnitees
for actual or alleged bodily injury or death, damage to tangible personal or real property
including computer data, data loss or any other damage, notwithstanding the form in which any such
action is brought (e.g., contract, tort or otherwise), to the extent such injuries or damages arise
directly or indirectly from acts, errors or omissions that constitute negligence, willful misconduct or violations of law, by ACS and/or its employees, agents and/or Subcontractors.




          15.1.3 Third-Party Contracts. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
Symetra Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third
Party against any of the Symetra Indemnitees for: (a) actual or alleged breach by ACS of any
agreement with any Third Party; and (b) actual or alleged breach by Symetra of any agreement with
any Third Party, to the extent the claim, suit or proceeding arises out of, relates to or is a
result of ACS’: (i) failure to fulfill its obligations under this Agreement; and/or (ii) breach
of any term or condition of this Agreement.




          15.1.4 ACS Employees. ACS shall indemnify, defend and hold harmless the Symetra Indemnitees
from and against, and shall pay any and all Losses sustained or incurred by any of the Symetra
Indemnitees, based upon or relating to any claim, suit or proceeding brought by any ACS employee
against any of the Symetra Indemnitees based upon any act by ACS, its employees, agents and/or its
Subcontractors on or after the Effective Date (or in connection with services provided by ACS
prior to the Effective Date) including, without limitation, any claim relating to the non-hire of
employees by ACS, claims for wages, benefits, discrimination or harassment of any kind, wrongful
termination and/or denial of severance or termination payments upon leaving ACS’ employ. In
connection therewith, ACS shall retain for an appropriate length of time in light of applicable
statutes of limitation and make available to Symetra upon request any and all employment records
relating to any such claim, suit or proceeding.




          15.1.5 Hazardous Material. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
Symetra Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third
Party against any of the Symetra Indemnitees as a result of: (a) ACS’ failure to comply with any
applicable Environmental Laws; or (b) the presence of any Hazardous Material upon, above or beneath
ACS’ facilities or locations.




          15.1.6 Information Disclosure. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
Symetra Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third
Party against any of the Symetra Indemnitees as a result of any failure by ACS, its employees,
agents and/or Subcontractors to comply with the obligations set forth in this Agreement relating to
Symetra Confidential Information or the protection of the security or privacy of data.




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          15.1.7 Security Breaches. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
Symetra Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third
Party against any of the Symetra Indemnitees as a result of any failure by ACS, its employees,
agents and/or Subcontractors to comply with the security obligations set forth in this Agreement relating to protection against fraudulent or other inappropriate or unauthorized use of or access to
the systems and/or networks described herein.




          15.1.8 Non-Performance. ACS shall indemnify, defend and hold harmless the Symetra
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
Symetra Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third
Party against any of the Symetra Indemnitees as a result of ACS’ breach or default of any term of
this Agreement.



          15.1.9 Taxes. ACS shall indemnify, defend and hold harmless the Symetra Indemnitees from and
against, and shall pay any and all Losses sustained or incurred by any of the Symetra Indemnitees,
based upon or relating to any claim, suit or proceeding brought by any Third Party against any of
the Symetra Indemnitees as a result of ACS’ failure to pay applicable taxes including, without
limitation, payroll and other employment-related taxes.



          15.2 By Symetra.



          15.2.1 Intellectual Property. Symetra shall indemnify, defend and hold harmless the ACS
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by any of the
ACS Indemnitees, arising out of any claim, suit or proceeding brought by any Third Party against
any of them for actual or alleged infringement of any patent, trademark, copyright or similar
proprietary right, including misappropriation of trade secrets, arising out of or relating to the
Category 6 Software. If ACS’ right to use such software is enjoined, Symetra may, in its
reasonable discretion and at Symetra’s sole expense, either procure a license to enable ACS to
continue use of such software or develop or obtain a non-infringing replacement. Symetra shall
have no obligation with respect to any claim or action to the extent it is based solely upon: (a)
modification of the software by ACS or any of its Affiliates or Subcontractors; or (b) ACS’
combination, operation or use of such software with other apparatus, data or programs; provided,
however, that this sentence and therefore this exception shall not be applicable to any such
combination, modification, operation or use required or specified in writing by Symetra.




          15.2.2 Managed and Assigned Contracts. Symetra shall indemnify, defend, and hold harmless
the ACS Indemnitees from and against, and shall pay any and all Losses sustained or incurred by the
ACS Indemnitees, based upon or relating to any claim, suit or proceeding brought by any Third Party
against any of the ACS Indemnitees as a result of an actual or alleged breach by Symetra of: (a)
any Managed Contract (to the extent not caused by ACS); or (b) any Assigned Contract (to the
extent not caused by ACS) occurring prior to the date the Assigned Contract was assigned to ACS.




          15.2.3 Hazardous Materials. Symetra shall indemnify, defend, and hold harmless the ACS
Indemnitees from and against, and shall pay any and all Losses sustained or incurred by the ACS
Indemnitees upon or relating to any claim, suit or proceeding brought by any Third Party against
any of the ACS Indemnitees as a result of: (a) Symetra’s failure to comply in all material respects with any applicable Environmental Laws; or (b) the presence of any Hazardous Material upon,




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above or beneath Symetra’s facilities or locations, provided such Hazardous Material was not
introduced to such facilities or locations by ACS or any of its Subcontractors or released into the
environment by ACS or any of its Subcontractors.




     15.3 Indemnification Procedures.



          15.3.1 General. If any legal action governed by this Article 15 is commenced against an
Indemnified Party, such Indemnified Party shall give written notice thereof to the Indemnifying
Party promptly after such legal action is commenced; provided, however, that failure to give prompt
notice shall not reduce the Indemnifying Party’s obligations under this Article 15, except to the
extent the Indemnifying Party is prejudiced thereby. After such notice, if the Indemnifying Party
acknowledges in writing to the Indemnified Party that the right of indemnification under this Agreement applies with respect to such claim, then the Indemnifying Party shall be entitled, if it so
elects in a written notice delivered to the Indemnified Party not fewer than ten (10) Business Days
prior to the date on which a response to such claim is due, to take control of the defense and
investigation of such claim and to employ and engage attorneys of its choice, that are reasonably
satisfactory to the Indemnified Party, to handle and defend same, at the Indemnifying Party’s
expense. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying
Party and its attorneys, at the Indemnifying Party’s expense, in the investigation, trial, and
defense of such claim and any appeal arising therefrom; provided, however, that the Indemnified
Party may participate, at its own expense, through its attorneys or otherwise, in such
investigation, trial, and defense of such claim and any appeal arising therefrom. If a court of
competent jurisdiction later determines, without right of further appeal, that a claim, suit or
proceeding for which the Indemnifying Party assumed defense was not eligible for indemnification
under this Article 15, within thirty (30) calendar days following such determination, the
Indemnified Party shall reimburse the Indemnifying Party in full for all judgments, settlements,
costs and expenses (including attorneys’ fees) incurred in connection with such claim, suit or
proceeding.




          15.3.2 Settlement of Claims. No settlement of a claim that involves a remedy other than the
payment of money by the Indemnifying Party along with standard settlement terms, specifically
including a dismissal of all claims with prejudice as well as a non-admission of liability or other
wrongdoing, shall be entered into by the Indemnifying Party without the prior written consent of
the Indemnified Party, which consent may be withheld in the Indemnified Party’s sole discretion.
In no event shall an adverse judgment be entered against the Indemnified Party as part of a
settlement without its express written consent.




          15.3.3 Defense Declined. If the Indemnifying Party declines to assume defense of a claim as
provided in this Section: (a) the Indemnified Party may assume such defense and, if such defense
is assumed, unless the Parties otherwise agree in writing, the Indemnifying Party thereafter shall
be barred from assuming such defense at a later time; and (b) if it is later determined by a court
of competent jurisdiction, without right of further appeal, that such claim was eligible for
indemnification by the Indemnifying Party under this Article 15, within thirty (30) calendar days
following such determination, the Indemnifying Party shall reimburse the Indemnified Party in full
for all settlements, judgments, costs and expenses (including attorneys’ fees) incurred by the
Indemnified Party in connection with such claim.




          15.3.4 Defense Accepted. Notwithstanding anything contained herein to the contrary, if the
Indemnifying Party accepts defense of a claim as provided in this Section, the Indemnified Party
shall have the right to engage independent counsel to monitor and participate in the




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defense of the matter as such counsel or the Indemnified Party deems fit to protect its
interests. The Indemnifying Party and its counsel must reasonably cooperate with the Indemnified
Party’s counsel to enable such counsel to adequately represent the interests of the Indemnified
Party.




ARTICLE 16

INSURANCE




     16.1 Required Insurance Coverages. During the Term and for such other periods as may be
required herein, at its sole expense, ACS shall provide and maintain insurance consistent with acceptable and prudent business practices including, at a minimum, the types of insurance and the
amounts described in Attachment N. The fact that ACS has obtained the insurance required in this
Article 16 shall in no manner lessen nor otherwise affect ACS’ other obligations or liabilities set
forth in this Agreement including, without limitation, its obligations under Article 15. If ACS
retains any Subcontractors, ACS shall require all such Subcontractors to carry the same coverages
at the same limits set forth herein.



     16.2 General Provisions.



          16.2.1 Evidence of Insurance. On or before the Effective Date and thereafter at Symetra’s
request, ACS shall deliver to Symetra certificates of insurance evidencing the insurance required
hereunder, together with appropriate separate endorsements. In addition, upon reasonable notice,
ACS grants Symetra the right to examine its underlying policies solely for the purpose of confirming ACS’ compliance with the terms of this Article 16.




          16.2.2 Claims-Made Coverage. If any coverage is written on a “claims-made” basis, the
certificate of insurance shall clearly so state. In addition to the coverage requirements
specified above, ACS will make all commercially reasonable efforts with respect to any such
policies to provide that:





               (a) the policy’s retroactive date shall coincide with or precede ACS’ commencement of
performance of Services (including subsequent policies purchased as renewals or replacements);




               (b) similar insurance is maintained during the required extended period of coverage following
expiration of the Agreement for a minimum of two (2) years;




               (c) if insurance is terminated for any reason, ACS shall purchase a replacement claims-made
policy with the same or an earlier retroactive date or shall purchase an extended reporting
provision to report claims arising in connection with this Agreement for a minimum of two (2) years
following termination or completion of the Services; and




               (d) all claims-made policies shall allow the reporting of circumstances or incidents that
might give rise to future claims.



          16.2.3 Notice of Cancellation or Change of Coverage. All certificates of insurance provided by
ACS must evidence that the insurance ACS will give Symetra forty-five (45) calendar days’ written
notice in advance of any cancellation, lapse, reduction or other adverse change in respect of such
insurance.




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          16.2.4 Qualifying Insurers. All policies of insurance required hereby shall be issued by
companies that have been approved to do business in the State of Washington, unless prior written
approval is obtained from Symetra’s risk manager. All providers of insurance shall have an AM Best
rating of A- and Financial Size Category VI or better.




          16.2.5 Waiver of Subrogation. All policies of insurance required hereby shall include a
waiver of subrogation in favor of Symetra and its Affiliates, a copy of which shall be provided to
Symetra upon request. ACS does hereby exercise its waiver of subrogation in favor of Symetra and
its Affiliates for any insurance proceeds payable under any policies of insurance required hereby.




ARTICLE 17

PROBLEM RESOLUTION




     17.1 Problem Resolution Process.



          17.1.1 Administrative-Level Performance Review. If a Problem arises between the Parties, the
Symetra Project Executive and the ACS Project Executive shall meet and attempt to resolve the
Problem. Written minutes of such meetings shall be kept. If the Parties are unable to resolve
the Problem within ten (10) calendar days after the initial request for a meeting, then the Parties
shall seek to resolve the Problem through the IT Outsourcing Committee Performance Review as
provided in Section 17.1.2.




          17.1.2 IT Outsourcing Committee Performance Review. Upon receipt of a written Problem referral
from the Parties’ representatives as provided in Section 17.1.1, the IT Outsourcing Committee shall
meet within five (5) Business Days thereafter in an effort to resolve the Problem. If the IT
Outsourcing Committee is unable to resolve the Problem within ten (10) calendar days after the
Problem was referred to it or fifteen (15) calendar days have passed since the Problem resolution
process was begun, then the IT Outsourcing Committee shall forward the written Problem referral to
the Parties’ executives as provided in Section 17.1.3 along with a statement of any actions taken
or recommendation made by the respective members of the IT Outsourcing Committee.




          17.1.3 Executive-Level Performance Review. For Problems that are not resolved as described in
Section 17.1.2, negotiations shall be conducted by the Chief Information Officer or higher-level
officer of Symetra and the Western Region Vice President or higher-level officer of ACS. If such
representatives are unable to resolve the Problem within five (5) Business Days after the Parties
have commenced negotiations, or fifteen (15) calendar days have passed since the initial request
for negotiations at this level, then the Parties shall be entitled to discontinue negotiations, to
seek to resolve the Problem through mediation as hereinafter provided or, if the Parties do not
agree to submit the Problem to mediation, to seek any and all rights and remedies that may be
available to them as provided in this Agreement.




          17.1.4 Voluntary, Non-Binding Mediation. If executive-level performance review is not
successful in resolving the Problem, the Parties may, but shall not be obligated to, mutually agree
in writing to submit the Problem to non-binding mediation. Mediation must occur within five (5)
Business Days after the Parties agree to submit the Problem to mediation. The Parties mutually
shall select an independent mediator experienced in IT systems, and each shall designate a representative(s) to meet with the mediator in good faith in an effort to resolve the Problem. The
specific format for the mediation shall be left to the discretion of the mediator and the
designated Party representatives





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 and may include the preparation of agreed-upon statements of fact or written
statements of position furnished to the other Party.




     17.2 Continued Performance; No Tolling of Cure Periods. The Parties agree to continue
performing their obligations under this Agreement while the Problem is being resolved as provided
in this Article 17, unless and until the Problem is resolved or until this Agreement is terminated.
The time frame for a Party to cure any breach of the terms of this Agreement shall not be tolled by
the pendency of any Problem resolution procedures.



     17.3 De Minimis Problems. Notwithstanding anything to the contrary in this Article 17 or
elsewhere in this Agreement, if: (a) Symetra requests services, products and/or resources from
ACS and the Parties disagree as to whether any such request is within the scope of the Services;
and (b) the financial impact on ACS of satisfying such request
is less than [***], then the
disagreement shall not be deemed a Problem, but absent mutual agreement of the Parties through the
IT Outsourcing Committee, shall be deemed resolved in Symetra’s favor. The maximum financial
impact on ACS pursuant to this Section shall not exceed [***] in the aggregate during any Contract
Year.



     17.4 Equitable Relief. Notwithstanding anything contained in this Agreement to the contrary,
the Parties shall be entitled to seek injunctive or other equitable relief whenever the facts or
circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction.



ARTICLE 18

USE OF SUBCONTRACTORS




     18.1 Approval; Key Subcontractors. Except as hereinafter provided in this Section, ACS
shall not perform or provide the Services through Subcontractors, including providers of hardware
and software, without the prior written consent of the Symetra Project Executive as to the
selection of the Subcontractor, which consent may be withheld by Symetra in its sole discretion.
Any such consent, or ACS’ subcontracting to the wholly owned subsidiaries of Affiliated Computer
Services, Inc. (which shall not require Symetra’s prior consent) shall be contingent on ACS’
compliance with the terms of Section 7.4.4 (when applicable) and Section 13.2.3 before the
Subcontractor (including any wholly owned subsidiary) begins providing any Services to ACS or
Symetra. Symetra consents to the Subcontractors identified in Attachment O, provided that ACS
complies with the terms of Section 7.4.4 (when applicable) and Section 13.2.3 before the
Subcontractor begins providing any Services to ACS or Symetra. ACS shall ensure that each
Subcontractor has obtained and maintains all licenses required in connection with the Services for
which such Subcontractor is responsible. ACS agrees that it shall continue throughout the Term to
retain the Subcontractors identified as “Key Sub contractors”  in Attachment O and that such Persons
shall continue to provide the Services initially provided, unless ACS has obtained Symetra’s prior
written consent to any changes, which consent may be withheld in Symetra’s sole discretion.



     18.2 Subcontractor Agreements. ACS will provide to Symetra copies of all agreements between
ACS and its Subcontractors related to the performance of this Agreement within thirty (30) calendar
days after such contracts are executed by ACS and its Subcontractors. Such subcontracts will
contain materially the same terms and conditions as this Agreement, to the extent such terms and
conditions are relevant to the Services to be provided by the Subcontractor (including, without
limitation, a restriction on the subcontractor’s right to further subcontract its obligations
without Symetra’s prior written consent), and shall identify Symetra as a direct and intended
third-party beneficiary



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thereof. ACS represents and warrants that the copies of Subcontractor agreements required to
be provided to Symetra hereunder will be true and complete copies thereof.




     18.3 Liability and Replacement. In no event shall ACS be relieved of its obligations under
this Agreement as a result of its use of any Subcontractors. ACS shall supervise the activities and
performance of each Subcontractor and shall be jointly and severally liable with each such Subcontractor for any act or failure to act by such Subcontractor. If Symetra determines that the
performance or conduct of any Subcontractor is unsatisfactory, Symetra may notify ACS of its
determination in writing, indicating the reasons therefor, in which event ACS promptly shall take
all necessary actions to remedy the performance or conduct of such Subcontractor or, subject to the
terms of Section 18.1, replace such Subcontractor by another Third Party or by ACS personnel.



     18.4 Direct Agreements. Upon expiration or termination of the Term for any reason, Symetra
shall have the right to enter into direct agreements with any Subcontractors. ACS represents,
warrants, and covenants to Symetra that its arrangements with such Subcontractors shall not
prohibit or restrict such Subcontractors from entering into direct agreements with Symetra.



ARTICLE 19

MISCELLANEOUS




     19.1 Defined Terms. Capitalized terms used in this Agreement (including in any
Schedules, Attachments, Addenda and other documents attached to this Agreement), shall have the
meanings ascribed to them in Attachment P. Other capitalized terms used in this Agreement are
defined in the context in which they are used and shall have the meanings ascribed to them therein.
The terms defined in Attachment P include the plural as well as the singular.



     19.2 Third-Party Beneficiaries. The applicable agreements are agreements between the
applicable Parties and, except for the Symetra Indemnitees and the ACS Indemnitees, confer no
rights upon any of such Parties’ employees, agents, or contractors, or upon any other Person.



     19.3 Use of Symetra Name. Except as necessary to deliver the Services in accordance with
this Agreement, ACS shall have no right to use, and shall not use, the name of Symetra and/or any
of its officials or employees, or logos or trademarks in any manner without the prior written consent of Symetra, which consent may be withheld in Symetra’s sole discretion.



     19.4 Captions; References; Terminology. Captions and titles to Schedules, Exhibits, Appendices, Attachments and/or Addenda are used herein for convenience of reference only and shall
not be used in the construction or interpretation of this Agreement. Any reference herein to a
particular Section number (e.g., “Section 2”), shall be deemed a reference to all Sections of this
Agreement that bear sub-numbers to the number of the referenced Section (e.g., Sections 2.1,
2.1.1, etc.). As used herein, the word “including” shall mean “including, without limitation.”



     19.5 Assignment. Except for: (a) subcontracting permitted under the terms of Article 18; (b)
any initial public offering by Symetra; and (c) Symetra’s assignment, transfer or delegation to a
Symetra Affiliate, neither Party shall assign, transfer or delegate its duties under this
Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written
consent of the other Party, which shall not be unreasonably withheld. Any assignment in
contravention of this Section (e.g., without the consent of the other Party, where such consent is
required) shall be voidable by the non-assigning Party. Without limiting the generality of the
foregoing, the phrase “by operation of



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law” shall include a Change in Control. Subject to all other provisions herein contained, this
Agreement shall be binding on the Parties and their successors and permitted assigns.
Notwithstanding the foregoing, the assigning party shall remain liable for the performance of the
assigned or delegated obligations hereunder.




     19.6 Notices. Any written notice, request, consent, approval or other communication required
or permitted to be given pursuant to this Agreement shall be in writing and shall be deemed to have
been given: (a) upon delivery if delivered personally; (b) upon transmission if sent viafacsimile
(with the original sent by recognized overnight courier); or (c) one (1) business day after deposit
with a national overnight courier, in each case addressed to the following addresses/telecopier numbers, or to such other addresses/telecopier numbers as may be specified by a Party upon written notice to the other in accordance with the terms of this Section:



     If to Symetra:


Symetra Life Insurance Company

5069 154th Place NE

Redmond, WA 98052-9669

Attention: Chief Information Officer

Telecopier No.: (425) 376-6080




     with a copy to:


Symetra Life Insurance Company

5069 154th Place NE

Redmond, WA 98052-9669

Attention: Legal Counsel

Telecopier No.: (425) 376-6080




     If to ACS:


ACS Commercial Solutions, Inc.

3935 NW Aloclek Place

Suite A-100

Hillsboro, OR 97124

Attention: Symetra SBU Manager

Telecopier No.: (503) 466-6774




     with a copy to:


ACS Commercial Solutions, Inc.

2828 N. Haskell Avenue, Bldg 1, 9th Floor

Dallas, Texas 75204

Attention: Group Counsel for Commercial Solutions

Telecopier No.: (214) 584-5525




     19.7 Amendments; Waivers. This Agreement may be modified only pursuant to a writing executed
by Symetra and ACS. ACS expressly agrees that all amendments to this Agreement executed by the
Parties after the Effective Date must be signed by a Vice President or higher-level



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officer of Symetra in order to be effective. The Parties expressly disclaim the right to claim the
enforce-ability or effectiveness of: (a) any amendments to this Agreement that are not executed by
a Vice President or higher-level officer of Symetra; (b) any oral modifications to this Agreement;
and (c) any other amendments, based on course of dealing, waiver, reliance, estoppel or other
similar legal theory. The Parties expressly disclaim the right to enforce any rule of Washington
law that is contrary to the terms of this Section.




     19.8 Relationship Between the Parties. Neither Party (nor any employee, subcontractor or
agent thereof) shall be deemed or otherwise considered a representative, agent, employee, partner
or joint venturer of the other. Further, neither Party (nor any employee, subcontractor or agent
thereof) shall have the authority to enter into any agreement, nor to assume any liability, on
behalf of the other Party, nor to bind or commit the other Party in any manner, except as expressly
provided in this Agreement.



     19.9 Access to Personnel and Information. If reasonably required by ACS for the performance
of the Services, Symetra shall provide ACS with reasonable access to Symetra’s administrative,
technical and other similar personnel and network management records and information.



     19.10 Severability. If any provision of this Agreement is determined to be invalid or
unenforceable, that provision shall be deemed stricken and the remainder of this Agreement shall
continue in full force and effect insofar as it remains a workable instrument to accomplish the
original intent and purposes of the Parties, and, if possible, the Parties shall replace the
severed provision with a provision that reflects the intention of the Parties with respect to the
severed provision but that will be valid and enforceable.



     19.11 Counterparts; Faxed Signatures. This Agreement may be executed in duplicate counterparts, each of
which shall be deemed an original and both of which together shall constitute but one and the same
instrument. Counterparts may be executed in either original or faxed form, and the Parties hereby
adopt as original any signatures received via facsimile.



     19.12 Governing Law and Venue. This Agreement shall in all respects be interpreted under, and
governed by, the internal laws of the State of Washington, U.S.A., including, without limitation,
as to validity, interpretation and effect, without giving effect to its conflicts of laws
principles. Except as provided in Section 17.1.4, Section 19.13 and hereafter in this Section, ANY
LEGAL ACTION, SUIT OR PROCEEDING BROUGHT BY A PARTY IN ANY WAY ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE BROUGHT SOLELY AND EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN KING
COUNTY, STATE OF WASHINGTON, U.S.A., AND EACH PARTY IRREVOCABLY ACCEPTS AND SUBMITS TO THE SOLE AND
EXCLUSIVE PERSONAL JURISDICTION OF SUCH COURTS IN PERSONAM, GENERALLY AND UNCONDITIONALLY WITH
RESPECT TO ANY ACTION, SUIT OR PROCEEDING BROUGHT BY OR AGAINST IT BY THE OTHER PARTY. EXCEPT AS
PROVIDED IN SECTION 17.1.4, SECTION 19.13 AND HEREAFTER IN THIS SECTION, NEITHER PARTY SHALL BRING
ANY LEGAL ACTION, SUIT OR PROCEEDING IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY OTHER COURT OR IN ANY OTHER JURISDICTION AND SHALL NOT ASSERT ANY CLAIM, WHETHER AS AN ORIGINAL
ACTION OR AS A COUNTERCLAIM OR OTHERWISE, AGAINST THE OTHER IN ANY OTHER COURT OR JURISDICTION.
Each Party irrevocably waives and agrees not to assert, by way of motion, as a defense or
otherwise, any objection that it may now or hereafter have to the venue of any of the



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aforesaid actions, suits or proceedings in the courts referred to above, and further waives
and agrees not to plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that this Agreement or the subject matter hereof or thereof may not be
enforced in or by such court. As the only exceptions to any of the above, if a Party is entitled to
seek injunctive or other equitable relief which is not available in the venue specified in this
Section, this Section shall not be deemed to be a bar to the Party seeking such relief if such
relief is wholly non-monetary injunctive or other equitable relief.




     19.13 Arbitration. At Symetra’s sole and absolute discretion and election, a dispute that
arises from or relates to this Agreement may be submitted for resolution to binding arbitration,
and if Symetra makes such an election, such dispute shall be decided exclusively by binding
arbitration in King County in the State of Washington, U.S.A., under the Commercial Arbitration
Rules of the American Arbitration Association (the “Rules”), before a sole arbitrator, who shall be
a retired or former judge or attorney with at least twenty (20) years of experience and mutually
acceptable to the parties. Each party will bear one half of the arbitrator’s fees and other
administrative fees of the arbitration; provided, however, that the arbitrator may award recovery
of such fees to the party whom the arbitrator reasonably believes is the prevailing party, if the
arbitrator reasonably believes that an award of such fees is appropriate. The parties agree that
the arbitrator’s award shall be final, and may be filed with and enforced as a final judgment by
any court of competent jurisdiction. The arbitrator shall have no power to: (a) award damages
(including any attorney’s fees) in excess of the amount or other than the types allowed by Article
11; or (b) alter any of the provisions of this Agreement. The parties consent and agree to the
jurisdiction of the tribunals mentioned in this paragraph, and waive any and all objections to such
forums, including but not limited to objections based on improper venue or inconvenient forum.



     19.14 Expenses. Each Party shall bear all expenses paid or incurred by it in connection with
the planning, negotiation and consummation of this Agreement.



     19.15 Import/Export. The computer hardware, software and technical data which are the subject
of this Agreement are acknowledged to be subject to any then-applicable United States laws,
regulations, orders or other restrictions regarding export of computer hardware, software,
technical data or Derivative Works thereof. Neither Party shall, in violation of any applicable
laws, regulations, orders or other restrictions, directly or indirectly export (or re-export) any
computer hardware, software, technical data or Derivative Works thereof, or permit the shipment of
same: (a) into (or to a national or resident of) Cuba, North Korea, Iran, Iraq, Libya, Syria or any
other country to which the United States has embargoed goods; or (b) to anyone on the United States
Treasury Department’s List of Specially Designated Nationals, List of Specially Designated
Terrorists and List of Specially Designated Narcotics Traffickers or the United States Commerce
Department’s Denied Parties List; or (c) to any country or destination for which the United States
government or a United States governmental agency requires export license or other approvals for
export without first having obtained such license or other approval. This obligation shall survive
the expiration or early termination of this Agreement.



     19.16 Waiver of UCITA. THE PARTIES AGREE THAT THE UNIFORM COMPUTER INFORMATION
TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE IN ANY FORM (“UCITA”),
SHALL NOT APPLY TO THIS AGREEMENT AND, TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES



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AGREE TO OPT-OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S)
CONTAINED THEREIN.




     19.17 Benefits of Agreement. All rights and benefits granted hereunder to Symetra may be
exercised and enjoyed by any Symetra Affiliate, provided that Symetra shall be and remain
responsible for the compliance of the terms and conditions of this Agreement with respect to such
Symetra Affiliate and will be such Symetra Affiliate’s agent for all purposes of this Agreement and
any claims or actions arising from such Symetra Affiliate shall be pursued solely by Symetra.
Further, for purposes of calculating discounts (if any) available under this Agreement that are
based on volume, quantity or other measurement factor, the total volume of all Symetra Affiliates
shall be counted to determine whether the applicable volume, quantity or other measurement factor
has been achieved.



     19.18 Entire Agreement. This Agreement and all Schedules, Attachments, Exhibits and Addenda
hereto are incorporated herein by this reference and are an integral part of the Agreement and
shall be read and interpreted together with the Agreement as a single document. This Agreement,
consisting of all of the pages of this instrument, together with all Schedules, Attachments, Exhibits and Addenda hereto sets forth the entire, final and exclusive agreement between the Parties
and supersedes all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, between the Parties related to the subject matter herein.



     IN WITNESS WHEREOF, the Parties have executed this Information Technology Services Agreement
as of the Effective Date.



	 	 	 	 	 	 	 	 	 	 	 
	SYMETRA LIFE INSURANCE COMPANY	 	 	 	ACS COMMERCIAL SOLUTIONS,
INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 





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AFFILIATED COMPUTER SERVICES, INC. GUARANTY



For value received, Affiliated Computer Services, Inc. (“Parent”), a Delaware corporation with
a place of business at 2828 N. Haskell, Dallas, Texas 75204, absolutely and unconditionally
guarantees the obligations and performance of its wholly-owned subsidiary, ACS Commercial
Solutions, Inc. (“ACS”), under that certain Information Technology Services Agreement by and
between ACS and Symetra Life Insurance Company (“Symetra”) dated October 28, 2004 (inclusive of all
Exhibits, Schedules, Attachments, Addenda, Appendices and any country agreements executed
thereunder (whether in effect on the effective date of such agreement or in effect in the future),
as the same may hereafter be amended, modified, renewed or extended from time to time (the
“Guaranteed Obligations”). If ACS fails to perform the Guaranteed Obligations, Parent shall perform
such obligations. This Guaranty shall continue in force until all Guaranteed Obligations have been
performed and/or satisfied. Parent shall not be discharged from liability under this Guaranty so
long as any claim by Symetra, or any of its Affiliates (as defined in the above-described
ACS/Symetra agreement), against ACS remains outstanding. This Guaranty shall be binding on Parent
and on its successors and assigns.



Notwithstanding anything in this Guaranty to the contrary, the obligations of Parent under
this Guaranty shall be subject to the rights, privileges and defenses otherwise available to ACS
under the above-described ACS/Symetra agreement with respect to the Guaranteed Obligations. Nothing
in this Guaranty shall be deemed to expand or otherwise extend the Guaranteed Obligations or limit
any defenses available to ACS (or to Parent by virtue of this Guaranty) under the Agreement. This
Guaranty shall be expressly subject to the conditions that: (a) Symetra may resort to Parent for
performance of the Guaranteed Obligations only if in Symetra’s reasonable judgment efforts to
obtain performance of the Guaranteed Obligations against ACS are not likely to result in the full
and timely performance of such Guaranteed Obligations; and (b) Parent may satisfy its performance
obligations under this Guaranty either directly or indirectly by causing one of its Affiliates to
perform such obligations.



IN WITNESS WHEREOF, Affiliated Computer Services, Inc. has, by a duly authorized officer,
executed this Guaranty as of the 28th day of October 2004.




	 	 	 	 	 
	 

	 	AFFILIATED COMPUTER SERVICES, INC.