IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

SUNGARD RECOVERY SERVICES L.P., : 

a limited partnership, formerly known as : 

SunGard Recovery Services Inc. 

1285 Drummers Lane 

Wayne, Pennsylvania 19087, 

Plaintiff, 

Civil Action No. 02-CV-4445 (MK) 

V. 

DELTANET, INC. 

a California Corporation, 

100 First Street, Suite 2100 

San Francisco, California 94105, 

Defendant. 

FIRST AMENDED COMPLAINT 

Plaintiff SunGard Recovery Services LP, formerly known as SunGard Recovery 

Services Inc., by and through its undersigned counsel, frles this Complaint against Defendant 

Deltanet, Inc., and in support thereof avers as follows: 

THE PARTIES 

1. Plaintiff SunGard Recovery Services LP, formerly known as SunGard 

Recovery Services Inc. (“SunGard” or “Plaintiff ’), is a ltmited partnershp with its principal 

place of business located at 1285 Drummers Lane, Wayne, Pennsylvania 19087. The 

members of SunGard are SunGard Computer Services Inc., a Pennsylvania corporation with 

its principal place of business in Voorhees, New Jersey, and SunGard Partner L.L.C., a 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 1 of 32
hted liability company. 

Computer Services Inc. 

The sole member of SunGard Partner L.L.C. is SunGard 

2. Defendant Deltanet, Inc. (“Deltanet”) is a California corporation with its 

principal place of business at 100 First Street, San Francisco, California 94105. Deltanet is 

registered to do business in the Commonwealth of Pennsylvania and has offices located in 

Mechanicsburg, Pennsylvania. 

VENUE 

3. This Court has jurisdction over &IS action pursuant to 28 U.S.C. $ 1332 in 

that it is between citizens of drfferent States and the matter in controversy exceeds the sum 

or value of $75,000.OOy exclusive of interest and costs. 

4. Venue is proper in this district pursuant to 28 U.S.C. $$ 1391(a)(2) and 

139 1 (c). 

FACTUAL BACKGROUND 

A. 

5. 

The Recovery Services kreement and Its Addenda. 

SunGard specializes in providrng computer-related dlsaster recovery services. 

Such services enable a computer-dependent company to prepare for and maintain its 

operations during times of emergency, such as fire, flood or power loss. SunGard provides 

backup computer systems and establishes backup communications networks through which 

the customer can access the backup computer facility from various sites. 

6. Deltanet is a privately held company and a subsidiary of Delta Dental Plan of 

Deltanet describes itself as “the dominant information technology partner of 

Its primary business is to provide administrative systems for the 

California. 

Delta Dental Plans.” 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 2 of 32
processing of claims for Delta Dental Plans which cover approximately 39 don 

subscribers throughout the United States. 

7. Deltanet provides such services to, among others, Delta Dental of 

Pennsylvania, whch provides dental insurance for approximately 1.9 don insureds in 

Pennsylvania, includmg (among others) hundreds of SunGard employees in ths district, as 

well as state and local government employees in this district. As a regular part of its business 

Deltanet provides processing and data services for claims submitted by and on behalf of 

insureds and dental care providers in this &strict. 

8. Effective May 15, 1999, SunGard, then known as SunGard Recovery Services 

Inc., and Deltanet entered into a Recovery Services Agreement, a “Schedule A” and 

Addenda thereto (collectively, the “Agreement”) that identified the services selected by 

Deltanet for its facilities in Rancho Cordova, California the initial monthly fees, and the 

initial term of the Schedule commencing on May 15, 1999 and lasting 63 months. A true 

and accurate copy of the Agreement is attached hereto as Exhibit A. 

9. On or about January 1, 2001, through a statutory merger and consolidation, 

the Agreement was transferred by operation of law from SunGard Recovery Services Inc. to 

SunGard Recovery Services LP. 

10. Among the services SunGard agreed to provide Deltanet in the event that it 

was rendered unable to use its own data processing equipment were the following: 

Assistance of SunGard’s Support Staff consisting of systems 

software, telecommunications, operations and customer support 

personnel on an as needed basis whenever a Disaster is declared 

(- id. at $ A(4)); 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 3 of 32
0 Assistance during a dsaster in obtaining and installing additional 

and/or replacement hardware (d.); and 

0 Access to SunGard’s facilities for testing its disaster recovery 

capabdity (id. at A(5)). 

11. In exchange for these services, Deltanet agreed to pay SunGard Monthly Fees 

for the duration of the Agreement. 

12. The Agreement further provided for termination upon notice at the end of an 

Agreed Term: 

Contract Term. This Agreement shall continue in effect for so long 

as there is a Schedule in effect. The term of a Schedule, and 

Subscriber’s rights to use the Recovery Services selected on that 

Schedule, shall begin on the Commencement Date and continue in 

effect for the Agreed Term stated in that Schedule. Thereafter, that 

Schedule shall automatically renew for successive one-year renewal 

terrns at the then current one-year rate, unless either party gives written 

notice of termination to the other at least ninety (90) days before the 

end of the then current term. 

Acreement at $ D(l) and “Addendum to Recovery Services Agreement Dated May 

15,1999, executed on June 8 and June 10,1999, at 7 1. 

13. The Agreement further provided for future increases in the Monthly Fees: 

. . . Begmning one year after the Commencement Date of a Schedule, 

SunGard may increase all fees chargeable under that Schedule by up to 

8% per contract year, by giving Subscriber at least 90 days prior written 

notice. 

- Id. at $ D(2). 

14. The Agreement further contained a force majeure clause: 

Neither party shall be liable for, nor shall either party be considered in 

breach of this Agreement due to, any failure to perform its oblgiations 

under ths Agreement as a result of a cause beyond its control, 

including any natural calamity, act of God or a public enemy, act of any 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 4 of 32
mhtary, civil or regulatory authority, change in any law or regulation, 

disruption or outage of communications, power or other utthty, failure 

to perform by any supplier or other thtrd party, or other cause which 

could not have been prevented with reasonable care. If, due to any 

such cause, SunGard is unable to provide to Subscriber a material part 

of the Recovery Services described in a Schedule and hs inability 

continues for a period of more than 30 days, then the Monthly Fees for 

those Recovery Services for that period shall be waived and the term of 

that Schedule shall be extended by an equal period. If this inabhty 

continues for more than three (3) days after Subscriber has declared a 

Disaster, then Subscriber may terminate that Schedule, without penalty, 

by giving written notice of termination to SunGard at any time before 

the inability ends. 

- Id. at $ D(5) and “Addendum to Recovery Services Agreement Dated May 15, 1999, 

executed on June 8 and June 10,1999, at 7 2. 

15. The Agreement also provided for termination for cause: 

If either party breaches any of its obligations under this Agreement in 

any material respect and the breach is not substantially cured withm the 

cure period specified below, then the other party may terminate hs 

Agreement or any Schedule(s), without penalty, by giving written notice 

to the breaching party at any time before the breach is substantially 

cured. With respect to a breach of SunGard’s obligation to provide the 

Recovery Services to Subscriber during a Disaster, the cure period shall 

be five days. With respect to Subscriber’s payment obligations, the 

cure period shall be ten days after receipt of SunGard’s written notice 

of non-payment. With respect to all other obligations under this 

Agreement, the cure period shall be 30 days after receipt of written 

notice describing the breach, provided that, if a longer period is 

reasonably required to cure the breach and the cure is promptly begun, 

such cure period shall be extended for as long as the cure is being 

diligently prosecuted to completion. 

- Id. at D(6). 

16. The Agreement further set forth the manner in which the parties were 

required to provide written notice to each other: 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 5 of 32
NOTICE. All notices, consents and other communications under this 

Agreement shall be in writing and shall be deemed to have been 

received on the earlier of the date of actual receipt or the third business 

day after being sent by frrst class mail. Any notice may be given by 

facslrnile, and Disaster declaration notice may be given orally, provided 

that, in either case, a signed written confirmation is received within 24 

hours thereafter. Subscriber’s address for notice is stated in each 

Schedule. SunGard’s address for notice is 1285 Drummers Lane, 

Wayne, Pennsylvania 19087, Attention: Contract Administration. 

- Id. at $ D(7). 

17. The parties further agreed that the Agreement “shall be governed by 

substantive Pennsylvania law.” Id. at $ D(10). 

18. The Agreement further provided that “[iln any action relating to this 

Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and 

court costs from the other party.” Id. 

B. Activities in this District in Connection With the kreement. 

19. On or about July 15, 1999, Beth Lynn Rich, Vice President of SunGard’s 

Contract Administration department in Wayne, Pennsylvania, wrote to Deltanet to provide 

clarification about the contract documentation, and asked Deltanet to counter-sign the letter 

and return it to her office to acknowledge receipt of the clarification. 

20. By letter dated September 13, 1999, Bill Thomas, Vice President of Deltanet’s 

Computer Services department, wrote to Denise MacLeod - SunGard’s Director of Contract 

Administration in Wayne, Pennsylvania - to provide certifications “required under 

SunGard’s disaster declaration policy” relating to Deltanet’s preparation for any “Y2K” 

failures. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 6 of 32
21. On three separate occasions, Deltanet conducted tests of the disaster 

recovery services by remote access of, and communications with personnel located at, 

SunGard’s facdities in Philadelpha, Pennsylvania. Prior to each such test, Deltanet 

personnel engaged in lengthy communications and pre-test planning with SunGard 

personnel in Philadelphia, including the exchange of written correspondence and email. 

Further, SunGard personnel from Philadelphia participated in a number of planning 

meetings with Deltanet personnel, and Deltanet completed test plans, prior to each such test, 

that were provided to SunGard’s Philadelphia staff. At all times, Deltanet was aware that the 

equipment to be used during its tests was located in and utihzed at SunGard’s test facilities in 

Philadelphia, Pennsylvania, and SunGard provided its test services to Deltanet in 

Philadelpha. 

22. By letter dated May 30, 2000, Deltanet informed SunGard’s Contract 

Administration office in Wayne, Pennsylvania, that it believed the Agreement was terminated 

for cause effective July 31, 2000. A true and accurate copy of the May 30, 2000 Letter is 

attached hereto as Exhibit B. On information and belief, the date stated on the face of the 

letter as May 30, 1999 is a typographical error. 

23. Among the reasons stated for the termination were purported problems 

associated with the tests conducted between California and SunGard’s facdities in 

Philadelphia, Pennsylvania, includmg but not limited to connection failures caused by a 

third-party provider which made it difficult for Deltanet to access services and hardware in 

Phrladelpha, and purported inadequacies in the hardware and services provided by SunGard 

in Philadelpha. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 7 of 32
24. Prior to the May 30, 2000 letter, Deltanet had given no written notice of 

material breach or opportunity to cure in accordance with $$ D(6)-(7) of the Agreement. 

25. Further, the May 30, 2000 letter Id not extend an opportunity to cure to 

SunGard. Id. 

26. By letter June 26, 2000, SunGard, from its Wayne, Pennsylvania offices, 

informed Deltanet that its purported cancellation was not in compliance with the terms of 

the Agreement and that Deltanet remained liable for Monthly Fees through the end of the 

current Term of the Agreement, which is scheduled to end August 14, 2004. A true and 

accurate copy of the June 26,2000 Letter is attached hereto as Exhibit C. 

27. By letter dated October 26, 2000 and addressed to SunGard’s Wayne, 

Pennsylvania offices, Deltanet responded to the June 26,2000 Letter. 

28. Subsequently, SunGard’s in-house counsel in Wayne, Pennsylvania, and 

Deltanet’s in-house in San Francisco continued to exchange correspondence regarding 

Deltanet’s attempts to terminate the Agreement and its failure to pay the invoices issued 

from SunGard’s Wayne, Pennsylvania offices. 

C. 

29. 

Deltanet’s Failure to Pay SunGard’s Monthlv Fees. 

Deltanet was not entitled to terminate the Agreement under $ D(l) except by 

three-months written notice effective upon the expiration of the Agreed Term in effect at 

the time. 

30. Deltanet was not entitled to terminate the Agreement under any other 

provision thereunder. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 8 of 32
31. Under the terms of the Agreement, Deltanet is required to pay SunGard 

Time Period 

Monthly Fees for services through August 14, 2004. Despite repeated demands from 

Rate L No of Total 

Months 

SunGard, Deltanet has made no payments on its Monthly Fees since September 26, 2000. 

11/01/00 - 07/31/01 

08/01/01 - 07/31/02 

08/01/02 - 07/31/03 

08/01/03 - 08/15/04 

These fees are calculated as follows: 

2,000.00 9 18,000.00 

1 1,400.00 12 136,800.00 

11,970.00 12 143,640.00 

12,570.00 12.5 156,938.00 

Total: $455,378.00 

COUNT I - BREACH OF CONTRACT 

32. 

33. 

SunGard incorporates paragraphs 1 through 31 of the Complaint. 

As described herein, there is a valid and bindmg contract between SunGard 

and Deltanet. 

34. SunGard has fulfilled and is ready, &ng and able to continue to fulfill its 

obligations to Deltanet under the Agreement. 

35. Deltanet has breached the Agreement by failing to make prompt payment of 

its Monthly Fees as they accrue and refusing to pay future Monthly Fees as they become due 

and owing. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 9 of 32
36. SunGard has suffered damages as a duect result of Deltanet’s breach of the 

contract in an amount exceeding $455,378.00, plus interest, costs and attorney’s fees. 

WHEREFORE, SunGard Recovery Services LP, formerly known as SunGard 

Recovery Services Inc., requests that ths Court enter judgment on Count I in its favor and 

against Deltanet, Inc., in the amount of $455,378.00, interest, costs, attorney’s fees under the 

Agreement, and such other and further relief as may be just and proper. 

COUNT I1 - UNJUST ENRICHMENT 

37. 

38. 

SunGard incorporates paragraphs 1 through 31 of the Complaint. 

At all relevant times, SunGard provided and continues to provide backup 

capabilities and other services for Deltanet that were set forth in the Agreement. 

39. Deltanet received and continues to receive the benefit of SunGard’s services 

throughout the course of the parties’ dealings, and it is unconscionable for Deltanet to reap 

these benefits without paying SunGard. 

40. By virtue of its conduct, Deltanet has been and continues to be unjustly 

enriched at SunGard’s expense in an amount exceeding $455,378.00, plus interest, costs and 

attorney’s fees. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 10 of 32
WHEREFORE, SunGard Recovery Services LP, formerly known as SunGard 

Recovery Services Inc. requests that this Court enter judgment on Count I1 in its favor and 

against Deltanet, Inc., in the amount of $455,378.00, plus interest, costs, attorney’s fees 

under the Agreement, and such other and further relief as may be just and proper. 

Dated: September k, 2002 BLANK ROME LLP 

Laurence s. Shtasel, Esq. 

Rebecca D. Ward, Esq. 

One Logan Square 

Philadelphia, PA 19103 

Telephone: (21 5) 569-5500 

Facsimile: (215) 569-5694 

Attorneys for Plaintiff SunGard Recovery Services LP, 

formerly known as SunGard Recovery Services Inc. 

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Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 11 of 32
CERTIFICATE OF SERVICE 

I, Rebecca D. Ward, hereby certify that on September 23,2002 I caused true and accurate 

copies of the Stipulation to File First Amended Complaint, and the First Amended Complaint to be 

placed with FedEx for deliveryupon the next business day, addressed as follows: 

Craig J. Staudenmaier, Esq. 

Nauman, Smith, Shissler & Hall LLP 

200 N. &d Street, 18th Floor 

Harrisburg, PA 17108-0840 

Rebeka D. Ward 

090079.71 119/21060869vl 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 12 of 32
EXHIBIT A 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 13 of 32
--- 

RECOVERY SERVICES AGREEMENT 

BETWEEN 

SUNGARD RECOVERY SERVICES INC. 

( S u nG a r ci " 1 

a Pennsylvania corporation 

AND 

DELTANET, INC. 

a corporation 

("Subscriber") 

DATED 

May 15,1999 

By the signatures of their duly authorized representatives below, SunGard and Subscriber, intending to be legally bound, agree to 

all of the terms of this Agreement. 

SUNG ECOVERY SERVICES INC. 

By: 

Print: F R. A DAMS 

Print Title: SR VICE PRESIDENT 

Date Signed: d.3, h Date Signed: 

A. RECOVERY SERVICES. Each Schedule to this Agreement specifies a Subscriber location ('Location"), the recovery services to be provided by SunGard to 

Subscriber for that Location ('Recovery Services"), the fees to be paid by Subscriber to SunGard for those services, and any other applicable terms. Each 

Scnedule represents a separate contract between the parties that incorporates and IS governed by all of the terms of this Agreement. 

1. DISASTER. A "Disaster" is any unplanned event or condition that randers Subscriber unable to use a Location for its intended computer processing and related purposes. By signing a Schedule or any Addendum 

to a Schedule, Subscriber warrants that the Location specified in that 

Schedule is not at that time experiencing a Disaster. Subscriber may 

declare a Disaster by having one of its designated representatives give 

notice to SunGard stating that a Disaster occurred, identifying the affected 

Location, specifying which Recovery Services Subscriber believes will be 

required, and naming another designated representative whom SunGard 

may immediately contact to verify the Disaster. 

THE TERMS OF THIS AGREEMENT ARE CONFIDENTIAL. 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 14 of 32
R~~~~~~ Services to be provlaea ov buntarc1 to Subscriber mall be rne 

foliowlng services which were selected by Subscriber in the aoplicable 

Sched,u le: 

(a\ Center-Based Recovery Services. Immediate and exclusive use of 

the Services described below ("Center-Based Recovery Services"), 

which Subscriber may use during the period of time stated below, 

provided at a SunGard facility: 

(i) Hotrite. An installed, fully operational computer system and 

networking capability ('Hotsite'), equal to or better than (in all 

material respects including equipment qualitv and processing 

capaciw) the Hotsite Configuration described in the Schedule, 

which Subscriber may use for six weeks. 

(ii) Coldsite. Environmentally prepared computer space 

( 'Coldsite'), properlp'equipped to facilitate the installation of a 

computer system comparable to the Hotsite Configuration, 

which Subscriber may use for Six months. 

(iii) Office Space. An adequate and reasonable amount of office 

space in the same facility where the Hotsite or Coldsite is located, properly equipped to facilitate the installation of terminals, 

which Subscriber may use to operate that Hotsite or Coldsite. 

(iv) Work Group Space. An adequate and reasonable amount of 

office space, properly equipped to accommodate the Work 

Group Configuration described in the Schedule, which 

Subscriber may use for six weeks. 

(v) MegaVoica.- SunGard's voice Communications backup service 

for the number of communications ports stated in the 

Schedule, which Subscriber may use for six weeks. 

(b) Mobile Recovw Services. Immediate and exclusive use of the services described below ("Mobile Recovery Se.rvices"), which 

Subscriber may use for the duration of a Disaster: 

Replacement Recovery System. A fully operational, 

relocatable computer system and networking capability 

("Replacement Recovery System"), equal to ,or better than (in 

all material respects including equipment quality and process. 

ing capacity) the Mobile Configuration described in the 

Schedule, to be provided to Subscriber by one of the following 

methods at Subscriber's option: 

a. Primary Recovery Facility. Access to the Replacement 

Recovery System at a SunGard facility where it is then 

installed. 

Alternate Recovery Facility. Delivery of the Replacement 

Recovery System to a SunGard facility where it may be 

accommodated, within 48 hours afier SunGard receives the 

Disaster declaration notice. 

Mobile Data Canter. Delivery of a properly equipped vehicle housing the Replacement Recovery System to a destination in the continental United States requested by 

Subscriber, within 48 hours after SunGard receives the 

Disaster declaration notice. , 

d. Subscriber Facility. Delivery of the Replacement Recovery 

System to a properly equipped facility located in the continental United States requested by Subscriber, within 48 

hours after SunGard receives the Disaster declaration 

notice. 

Computer Space. Environmentally prepared computer space 

("Computer Space"), properly equipped to facilitate the installation of a computer system comparable to the Mobile 

Configuration, to be provided to Subscriber by one of the following methods at Subscriber's option: 

a. SunGard Facility. Access to the Computer Space at a 

SunGard facility where the Replacement Recovery System 

may be accommodated. 

b. Mobile Coldsite. Delivery of a properly equipped vehicle 

housing the Computer Space to a destination in the continental United States requested by Subscriber, within 48 

hours after SunGard receives the Disaster declaration notice. 

Supplemental Office Space. An adequate and reasonable 

amount of office space in the same SunGard facility where the 

Replacement Recovery System or Computer Space is located, 

properly equipped to facilitate the installation of terminals, 

which Subscriber may use to operate that Replacement 

Recovery System or Computer Space. 

Mobile Work Group Space. Delivery of a vehicle properly 

equipped to accommodate the Mobile Work Group 

b. 

c. 

- -- 1 

nental united Stales :eques:ed bv Suascriber. wlrhin SB hours atre 

SunGard receives the Disaster dec:aration notice. 

(v) Quick Ship Equipment. Delivery of equipment equal to or better :ha 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

(in all material respects including equipment quality and processtn 

capacity) the Quick Ship Equipment described in the Schedule, !o 

properly equipped facility in the contlnental United States requestea 2 

Subscriber, within 68 hours after SunGard receives the Disaster declar; 

tion notice. 

EXTENDED USE. During a Disaster. Subscriber may continue to use th 

Center-Based Recovery Services beyond the periods stated in Sectio 

AZ(a1. provided that this extended use shall be subject to immediate te. 

mination if and when any other subscriber declares a disaster. 

COMPREHENSIVE RECOVERY SUPPORT. Whenever Subscriber use 

Recovery Services during a Disaster, SunGard's Support Staff (consis. 

ing of operations, communications. security, transportation, system 

software and customer support personnel, as appropriatel shall provid 

comprehensive support to Subscriber on a 2Chour-a-day, 7-d.y-a-wee 

basis, as needed. TO facilitate Subscriber's use of the Recovery Service 

during a Disaster, SunGard's Support Staff shall assist Subscriber in pro 

testing Subscriber's operating systems, network control programs an 

communications circuits. During a Disaster, SunGard's Support Sta. 

also shall assist Subscriber in contacting vendors and in obtaining an 

installing additional or replacement equipment. 

TESTS. Upon execution of this Agreement. SunGard shall eithe 

schedule a Workshop with Subscriber at the recovery center or provid 

Subscriber with a computer based Workshop. Subscriber may use cer 

lain Recovery Services to test its disaster recoven/ capability ('Test' 

for the number of Test Periods stated in the applicable Schedule. Eac 

Test Period entitles Subscriber to eight (8) hours of consecutive tez 

time per contract year at a designated SunGard facility, on a nor 

cumulative basis. During each Test, SunGard's Suppon Staff shall prc 

vide reasonable supplies and support to Subscriber as needed, subjec 

to availability. In order for SunGard to provide support to Subscribe 

for a scheduled Test, all Test plans must be provided to SunGard 2 

least three (3) weeks prior to the Test date. Upon receipt o 

Subscriber's Test plan, SunGard will then assign a SunGatd technici 

coordinator to review Subscriber's Test plan and act as project manac 

er to coordinate Test support activities. Tests shall be scheduled t 

least four (4) months in advance and availability is 7 days x 24 hour: 

All Tests shall be subject to immediate cancellation or termination, an. 

shall be rescheduled as soon as possible, if and when any other sut 

scriber declares a disaster and requests use of the Recovery Service 

being tested. 

SOFWARE. All systems and utility software which SunGard has installe 

at its facilities may be usad by Subscriber during a Disaster or a Test. 

TECHNOLOGY EXCHANGE. Upon Subscriber's request, SunGard wi 

provide a list of computer and communications equipment that is the 

currently available to enhance the Hotsite Configuration or Mobil 

Configuration. Subscriber may exchange certain components of th: 

configuration for hardware representing newer technology, by givin 

written notice to SunGard and signing an appropriate Addendum to tb 

applicable Schedule. Upon the effective date of this exchange, th 

Monthly Fees due under that Schedule may increase by an amount rei 

sonably determined by SunGard. based upon the difference between (i 

SunGard's then prevailing Monthly Fees for the new hardware selectec 

and (b) an allocated portion of the prior Monthly Fees covering the cor 

ponents that were replaced. 

ACCOUNT EXECUTIVE. SunGard shall assign an Account Executive 1 

Subscriber to assist in monitoring the continued viability c 

Subscriber's disaster recovery capability and to facilitate ongoing con 

munications between Subscriber and SunGard. 

HOTLINE. SunGard shall maintain a toll-free customer support teli 

phone service, on a 24-hour-a-day, 7-day-a-week basis, whic 

Subscriber may use as needed. 

USER'S GUIDES. Subscriber shall receive SunGard's current User 

Guides for the Recovery Services and all applicable updates and re\ 

sions, as and when issued. 

PLANNING SERVICES AND SOFTWARE. Subscriber may engac 

SunGard's disaster recovery consultants, at SunGard's then prevailir 

fees, to prepare and maintain a disaster recovery plan for Subscriber, auc 

Subscriber's disaster recovery capability. and provide other disaster reco 

ery planning and consulting services. Subscriber may license SunGarc 

disaster recovery planning software at SunGard's then prevailing fees. 

OTHER SERVICES. Subscriber may obtain any other recovery servict 

offered by SunGard, at SunGard's then prevailing fees, by executing i 

appropriate Schedule or Addendum describing such services. 

2- 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 15 of 32
using the RecoverY Resources. 

1, MAINt'ENANCE. SunGard shall maintain vendor.specified Proper Operating 

environments at it8 facilities and in Its vehicles used to provide the Recovery 

Services. SunGard shall adhere to vendor-recommended procedures and 

policies for proper maintenance of the Recovery Resources, including necessary 

remedial maintenance and regularly scheduled preventive maintenance. 

SunGard warrants to su~b.r that tht R.tov.y Resources shall be nuintained in a state of re3din.u all times, consistent with SunGards obligations under this Agrwment. 

SlGNlnCANT CHANGES. SunGard may change the Recovery Resources and 

shall give written notice to Subscriber at least 60 days before making any significant change that might substantially and adversely impact Subscriber. 

Subscriber shall then have an adequate and reasonable number of free additional Test Periods to Test the affected Recovery Services. If. in Subscriber's 

reasonable judgment, any such change substantially and adversely impacts 

Subscriber to the enen; that Subscriber cannot use the affected Recovery 

Services, then Subscriber may terminate the affected Recovery Services by 

giving written notice to SunGard within ten days after Subscriber first uses 

the affected Recovery Services for either a Disaster or Test. 

AUDITS. At any time except when the Recovery Resources are being used 

during a disaster or a confidential test, Subscriber may. at its expense. audit the 

Recovery Resources to verify SunGard's compliance with this Agreement. 

SunGard also shall permit any regulatory authority having jurisdiction over 

Subscriber to inspect the Recovery Resources. SunGard shall, at its expense. 

have the Recovery Resources annually reviewed by an independent thirdpaw auditor, whose repons shall be furnished to Subscriber upon request. 

4. STANDARD PROCEDURES. SunGard shall maintain reasonable and uniform 

rules regarding security. safety. scheduling. operations and other procedures for 

accessing and using the Recovery Resources during disasters and tests. Thew 

rules may appear in SunGard's User's Guides and in other written documents 

provided by SunGard to its subscribers from time to time. Both SunGard and 

Subscribe: shall comply with these rules in all material respects and shall use all 

Recovery Resources in accordance with manufacturer specifications, Rules for 

2. 

3. 

Tests may include advance scheduling and cancellation requirements. A~, I 

Test Periods cancelled less than 45 davs before the scheduled dare ~,ii 9k 

applied against Subscribecs annual allotment Of Test Periods. 

SPECIAL PROCEDURES. If Subscriber gives written notice to Sun~a-r 

describing any special data protection Or other securcty procedures used b,, 

Subscriber, then SunGard shall use commercially reasonable efforts to hei: 

implement those procedures whenever Subscriber is using the Recover,. 

Resources. Subscriber shall be responsible for any addttional expense: 

reasonably incurred by SunGard in implementing Subscribets special procedures 

MOBILE RESOURCES. Title to all of the Recovery Resources used to provide 

Mobile Recovery Services f'Mobile Resources'), wherever located. shal 

remain in SunGard or its supplier. except for any Quick Ship Equipment as tc 

which Subscriber properly exercises its purchase option. if any, described ir 

the applicable Schedule. With respect to any Mobile Resources for which the 

destination is not a SunGard facility. la) Subscriber shall obtain or provide, a* 

Subscriber's expense. all permits. landlord consents and otner authoriza 

tions. and all communications, power and other utility lines and equipment 

needed to possess, locate or use the Mobile Resources at that destination. lb 

Subscriber shall be responsible for the security of the Mobile Resources ai 

that destination, (c) Subscriber shall not relocate the Mobile Resources with 

out SunGards prior written consent which will not be unreasonably withheld, Id) when Subscriber's use or right to use the Mobile Resources during I 

Disaster or Test ends, Subscriber shall comply with SunGard's return delivery or shipment instructions, and (el if the Mobile Resources do not include i 

SunGard vehicle, then Subscriber shall provide a proper operating environment for the Mobile Resources. If any Mobile Resources are provided by i 

third party under contract with SunGard and that contract is terminated, ther 

SunGard may terminate the applicable Recovery Services upon 90 days prior 

written notice to Subscriber. 

REMARKETED EQUIPMENT. SunGard may terminate the Recovery Services 

for any items designated in a Schedule as 'Remarketed Equipment' (equipment owned by another SunGard subscribert upon 30 days prior writter 

notice to Subscriber. 

~~ .~ - 

same time as Subscriber ('Multiple Disaster"). 

1. GENERAL MULTIPLE DISASTER PROCEDURES. If a Multiple Disaster occurs. 

then the following procedures shall be implemented with respect to all 

Recovery Resources other than Mobile Resources: 

la) Subscriber and the other affected subscribers shall have equal rights of 

access to and use of the applicable Recovery Resources. irrespective of 

the order in.which disasrers occurred or were declared. 

Ibl In an effort to avoid the need for shared or allocated use of any 

Recovery Resources, SunGard shall, to the fullest extent possible under 

the circumstances, take full advantage of, and provide access to, all of its 

other available Recovery Resources. 

(cJ If shared or allocated use of any Recovery Resources is necessary. then 

SunGard shall develop and implement an appropriate plan ('Multiple 

Disaster Plan") providing for the sharing or allocation of those Recovery 

Resources in a manner reasonably determined by SunGard. If 

Subscriber and the other affected subscribers unanimously agree upon 

their own Multiple Disaster Plan, then SunCard shall implement that 

plan to the fullest enent possible under the circumstances. 

id) Subscriber shall cooperate with SunGard and the other affected subscribers 

in coordinating the use of the Recovery Resources and, if necessary, in 

implementing a Multiple Disaster Plan. 

MULTIPLE DISASTER PROCEDURES FOR MOBILE RESOURCES. If a Multiple 

Disaster occurs. then the following procedures shall be implemented with 

respect to Mobile Resources: 

la) The first subscriber who declares a disaster. as determined by 

SunGard's receipt of written disaster declaration notices, shall have 

immediate and exclusive use of the applicable Mobile Resources. 

(bl If the applicable Mobile Resources are being used by another affected 

subscriber who previously declared a disaster. then Subscriber shall be 

provided immediate and exclusive use of other compatible Mobile 

Resources. 

IcI If all other compatible Mobile Resources also are betng used by other 

affected subscribers who previously declared disasters, then Subscriber 

2 

C. MULTIPLE DISASTER. Subscriber's rights of immediate and exclusive use of the Recovery Resources, as provided in Section A2. shall be subject to the 

possibilitv that one or more other subscribers ('other affected subscribers") could declare a disaster and require use of the same Recovery Resources at the 

shall be provided exclusive use of the first compatiblc 

Mobile Resources that become available. 

(d) Subscriber shall cooperate with SunGard and the other affected sub 

scribers in coordinating the use of the Mobile Resources and in irnplemeriting any other plans for supponing the Multiple Disaster. 

MULTIPLE DISASTER PROTECTION. To lower the probability of a Multiple 

Disaster, SunGard shall comply with the following terms: 

(al No othr subscriber shall be granted any greater rights of accw to o 

use of the Rocovtry Resources than are granted to Subscriber unde 

this Ayrment. 

Ibl No agretment to provide use of any Recovery Resources shall bi 

entartd into at a tima when tht subscriber location to be serviced i: 

.then currently experiencing a disaster. 

For Center-Based Recovery Services, SunGard also shall comply with tht 

following: 

(c) To discourage unnecessary disaster declarations, Disaster Declaratior 

Fees, as provided in the Schedules, shall be charged whenever a subscribe 

declares a disaster. 

Id1 To discourage unnecessary use of the Recovery Resources, Daily Usag, 

Fees. as provided in the Schedules, shall be charged for actual use of th. 

Recovery Resources other than for tests. 

For each IBM mainframe Hotsite equal to or greater than Model 308X 

SunGard also shall comply with the following: 

(el Agreements for the Hotsite shall not be entered into covering tw( 

subscriber computer facilities which are located in the same building. 

Agreements for the Hotsite shall not be entered into covering more tha 

110 subscriber computer facilities. 

CRISIS MANAGEMENT. Whenever SunGard learns of an approaching storr 

or other situation that might cause a Multiple Disaster. SunGard shall mon 

tor the situation and use commercially reasonable ef(orts to coordinate cor 

tingency plans with all potentially affected subscribers. 

3. 

lfl 

4. 

3- 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 16 of 32
2 

1 

2. 

3. 

4. 

"*,,L,* *-.....- 

corn~ ERM. 'his Agreemen1 shall continue in effect for so long as 

there is a Scnedule in effect. The term of a Schedule. and Subscriber's 

rights to use the Recovery Services selected on that Schedule, shall begin 

on the Commencement Date and continue in effect for the Agreed Term 

stated in that Schedule. Thereafter. that Schedule shall automatically 

renew for Successive renewal terms of equal duration to the Agreed 

Term. unless either parry gives written notice of termination to the other 

at least six months before the end of the then current term. Subscriber 

acknowledges that SunGard requires this advance notice due to the substantial, long-term equipment and facilities commitments SunGard 

makes in reliance upon its subscriber contracts. This Agreement and 

each Schedule is a non-cancelable contraa that may be terminated only 

in accordance with its express terms. 

FEES AND EXPENSES. All Monthly Fees shall be invoiced by SunGard in 

advance. All other fees, and any out-of-pocket expenses reasonably 

incurred by SunGard on behalf of Subscriber and with prior authorization, shall be invoiced by SunGard as and when incurred. Subscriber's 

payments shall be due within 30 days after receipt of invoice. Subscriber 

shall be responsible for (a) any applicable Disaster Fees as indicated on a 

Schedule, (b) all communications and similar third party charges resulting from Subscriber's use of the Recovery Resources, (c) all power, fuel 

and other utility charges resulting from Subscriber's use of the Recovery 

Resource$, except the initial six weeks of Hotsite use and except for 

Tests, (d) all costs associated with the transportation, delivery, operation 

and ongoing SUPPOR of Mobile Resources used by Subscriber, (e) all 

costs associated with the installation and de-installation of Mobile 

Resources used by Subscriber at non-SunGard locations. and (f) any 

sales, use, excise or comparable taxes assessed or imposed upon the 

services provided or the amounts charged under this Agreement. 

Beginning one year after the Commencement Date of a Schedule, 

SunGard may increase all fees chargeable under that Schedule by up to 

8% per contract year, by giving Subscriber at least 90 days prior written 

notice. 

CONRDENTIALIW. All information disclosed by one party to the other in 

connection with this Agreement shall be treated as confidential information 

unless it is or becomes publicly available through no fault of the other 

party, is already known to the other party. or is later rightfully obtained 

~y the other pany irom inoepenoent sources. Each party's confidential 

information shall be held in strict confidence by the other party, using the 

same standard of care as it uses to protect its own confidential information, 

and shall not be used or disclosed by the other party for any purpose 

except as necessaw to implement or perform this Agreement., Without 

limiting the generality of the foregoing, such confidential information 

includes (a) Subscriber's data and software, and the details of Subscriber's 

computer operations and recovery procedures, which include trade secrets 

of Subscriber. (bl SunGard's DhVSiCal securitv svstems. access control 

systems, specialized recovery equipment and techniques, and User's 

Guides. which include trade secrets of SunGard. and (c) the terms of this 

Agreement. This Section 03 may be enforced by injunction. 

LlABlLlTY AND INDEMNIFICATION. Each party ("liable party.) shall be fully 

liable to the other party for any direct damages caused by any breach of 

contract, negligence or willful misconduct of the liable party lor any of its 

employees or agents) in connection with the use of the Recovery Resources 

or any other matter relating to this Agreement. The liable party shall 

indemnify and hold harmless the other party (and its affiliates and their 

respective employees and agents) against any claims, actions, damages, 

losses or liabilities to the extent arising from any such breach of contract, 

negligence or willful misconduct of the liable party lor any of its employeas or 

agents). Notwithstanding the foregoing, SunGard shall have no liability for 

any of Subscriber's property located at a SunGard facility or in a SunGard 

vehicle, except for any direct damages caused by SunGard's gross negligence 

or willful misconduct. Subscriber shall indemnify and hold harmless SunGard 

,and its affiliates and their respective employees and agentsl against any 

claims. actions, damages, losses or liabilities to the extent arising from the 

use. control or possession of any Mobile Resources by Subscriber (or any of 

::s employees or agentsl. Excluding Subscriber's payment obligations, under 

no circumstances shall either party be liable for lost revenues, 

lost profits. loss of business. or consequential or special damages of any 

nature. whether or not foreseeable. 

EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, SUNGARD 

MAKES NO REPRESENTAT!ONS OR W.ARRANTIES, EXPRESS OR 

IMPLIED, INCLUOING WITHOUT LIMITATION ANY IMPLIED WARRANTY 

OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE, OR 

CONFORMIN TO ANY REPRESENTATION OR DESCRIPTION. 

9. 

10. 

....---..-. .ll.l CYI., -,.I.. -- I..... b,, ,,"I ,,Id,, el<"er oar, 

be consiaered in breacn of tnls Agreemen1 3l;e 10. any failure to perform 

11s obligations under this Agreement as a result of a cause beyond 

control, including any natural calamity. act Of God or a public enemy, ac: 

of any military, civil or regulatory authority. change In ans law or regulation, disruption or outage of communications. power or other utility. fall. 

ure to perform by any supplier or other third party, or other cause whicr 

could not have been prevented with reasonable care. If, due to any sucr 

cause, SunGard is unable to provide to Subscriber a material part of tne 

Recovery Services described in a Schedule and this inability continues 

for a period of more than 30 days. then the Monthly fees for those 

Recovery Services for that period shall be waived and the term of that 

Schedule shall be extended by an equal period, If this inability continues 

for more than five days after Subscriber has declared a Disaster, then 

Subscriber may terminate that Schedule. without penalty, by giving written notice of termination to SunGard at any time before the inabilitb 

ends. 

TERMlNATlON FOR CAUSE. If either party breaches any of its obligations under this Agreement in any material respect and the breach is not 

substantially cured within the cure period specified below, then the other 

parry may terminate this Agreement or any Schedule(s1, without penalty 

by giving written notice to the breaching party at any time before the 

breach is substantially cured. With respect to a breach of SunGard's 

obligation to provide the Recovery Services to Subscriber during a 

Disaster, the cure period shall be five days. With respect to Subscriber's 

payment obligations, the cure period shall be ten days after receipt of 

SunGard's written notice of non-payment. With respect to all other obligations under this Agreement. the cure period shall be 30 days after 

receipt of written notice describing the breach, provided that, if a longer 

period is reasonably required to cure the breach and the cure is promptly 

begun, such cure period shall be extended for as long as the cure IS 

being diligently prosecuted to completion. 

NOTICE. All notices, consents and other communications under this 

Agreement shall be in writing and shall be deemed to have been received 

on the earlier of the date of actual receipt or the third business day after 

being sent by first class mail. Any notice may be given by facsimile. and 

Disaster declaration notice may be given orally, provided that, in either 

case, a signed written confirmation is received within 24 hours thereafter. 

Subscriber's address for notice is stated in each Schedule. SunGard'c 

address for notice is 1285 Drummers Lane, Wayne, Pennsylvania, 19087, 

Attention: Contract Administration. 

ENTIRE UNDERSTANDING. This Agreement (which includes and incor. 

porates all Schedules and Addenda to this Agreement) states the entire 

understanding between the panies with respect to its subject matter, anc 

supersedes all prior proposals, nbgotiations and other written or ora 

communications between the parties with respect to the subject matter 0: 

this Agreement. No modification of this Agreement, and no waiver 01 

any breach of this Agreement, shall be effective unless in writing anc 

signed by an authorized representative of the party against whom 

enforcement is sought. No waiver of any breach of fhis Agreement. anc 

no, course of dealing between the panies. shall be construed as a waiver 

of any subsequent breach of this Agreement. 

PARTIES IN INTEREST. Neither party may assign this Agreement or an! 

rights or obligations under this Agreement ,without the prior written con 

sent of the other party which will not be unreasonably withheld. Thi: 

Agreement shall bind, benefit and be enforceable by and against bott 

parties and their respective successors and consented-to assigns. Nc 

third party shall be considered a beneficiary of this Agreement or entitlec 

to any rights under this Agreement. 

CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY SUB 

STANnVE PENNSYLVANIA LAW. This choice of governing law shall no' 

be considered determinative of the jurisdiction or venue of any actior 

between the parties. In any action relating to this Agreement, the prevail 

ing party shall be entitled to recover its reasonable attorney's fees anc 

court costs from the other party. A determination that any term of thir 

Agreement is invalid or unenforceable shall not affect the other terms c 

this Agreement. Section headings are for convenience of reference onl! 

and shall not affect the interpretation of this Agreement. The relationshi[ 

between the parties created by this Agreement is that of independen 

contractors, and not partners. joint venturers or agents. Sections 03, D. 

and D10 shall survive any termination of this Agreement. 

c1999, SunGard Recovery Services Inc., all rights reserved (cPLs-19C 

4, 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 17 of 32
wvuvtHi atiivicxs AGFEEM~NI UA~W OUO~~I~S, 

BETWEEN SUNGARD RECOVERY SERVICES INC. and DELTANFT. ;NC.- 

Page 1 of3 

Included Dtsaster Fees (only dunng a Disaster) 

sdectcd sm- YesMo Test Penods DecbratKKI Daily Usage 

(a) Center-Based Recovery Sew s25.m 

(I) Hotsne - YeS Eight (8) $20 m 

(11) Coldsrtc YeS NIA $1 5co 

(111) ofice space YeS NIA 

Yts Four (4) 52 503 SSxJ (N) Work Group Space - 

No NIA 8 8 (v) Megavoice (sm) - 

YeS Four (4) $0 $1 250‘ (I) Replacement Recovery System - 

- 

- 

(b) Mobile Recovery SeMces 

Delivery Method@) Selected Pnmary Recovery F acilty/Attemate Recovery Faciltty 

(ii) Computer Space: - No NIA $0 w 

Delimy Methcd(s) Sefected: NIA 

No NtA 

No N/A so fo 

No N/A to so 

(iii) Suppkmcntal Offm Spacc: - 

(iv) Mobila Work Group Space: - 

(v) Quick Ship Equipment: 

’ Intiat30 days of Daily Usage Fees dunng a Dsaster mll not be charged. 

- 

Agreed Term 63 month@) 

Commencement Oak 05/15/1999 

‘Monthly Fee 915-93 to 531 r00 Effcctrve OYl Y1993 

‘Monthty Fee Wl rW to 7t3lxll Effectwe OW1 Rax3 

‘Monthly Fee 011x)l to 7t31KE Effective oBx31Ro31 

‘Monthly Fee W1XP to 7131Al3 Effective OBA)lRa32 

‘Monthly Fee 8/1x13 to 8nsJw Effective oBx)i/Tom 

8 

$1 ,m 

$10,400 

510,370 

$1 1,570 

The la& sentence of S&mn D2 shall not appty to the fees 

stated on ths Schedule for the inhl Agreed Term 

Subscribets Location: 2729 PROSPECT P - RI DRIVE. RANCHO CORDOVA. CA 95670 

Send Subscnber Notrces to. 100 FIRST STREET, SUITE 2190, SAN FRANCISCO. CA 94105 

ATTN FRED SMITH 

1M FIRST STREET, SUITE 2100. SAN FRANCISCO, CA 94105 

ATTN FRED SMITH 

Send Subscnber lnmices to 

4 DATE SIGNED: 

/ 

THE TERMS OF THIS SCHEDULE ARE CONFIDENTIAL 

Quote 10 4693 A, Last Modified 05/19/1999 

! I 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 18 of 32
- - 

Hotsfit Configuration: 

Work Group Configuration: 

Ra-OVERY SERVICES AGREEMENT DATED 04-a 7- ~ - BETWEEN SUNGAm RECOVERY SERVICES INC. and DELTANET, INC: 

Page 2 of 3 

Quantttv 

1 

300 

2048 

1726 

2 

4 

64 

20 

1 

1 

2 

1 

2 

1 

Description 

IBM 9672 OR EQUIVALENT (23 - 390 MIPS) 

MIPS 

MB OF STORAGE 

GIGABYTES OF 33333 DASD 

IBM 3420 MAGNETIC TAPE DRIVE ADORESSES 

IBM 3480MAGNETlC CARTRIOGE DRIVE ADDRESSES 

IBM 34QOE MAGNETIC CARTRIDGE DRIVE ADDRESSES 

IBM J980 MAGSTAR ADDRESSES 

IBM SCKM PRINTING SUBSYSTEM 

IBM -1 ADVANCED FUNCTION PRINTER 

RESOURCE) 

IBM 4243 IMPACT LINE PRINTER 

IBM 3745 MODEL 310 COMMUNICATION CONTROLLER 

1 tontlgwd as fdlam: 

(SHARED RESOURCE) 

(SHARED 

1 AUTO-CALL 

1 BUSKAG ADAPTERS 

1 HIGH SPEED SCANNER 

14 LlCl (RS232) 

2 LIc3 (v.35) 

1 TIC2 

IBM 3x74 LOCAL CLUSTER CONTROLLER (INCLUDES TERMINALS 

6 LINE PRINTER) 

ClSCO 7513 ROUTER BASE UNIT #Z 

1 ESCON CIP PORT 

1 ETHERNET PORT 

1 mtigwd as fdkm: 

t X SERIALPORT qF 2- 

1 

2 

4 

1 

1 

1 

OuantHy 

1 

1 

1 

1 

1 

1 

1 

4 

10 

r 

2 TllPRlPORT 

1 TOKEN RING PORT 

ClSCO CATALYST 2924 ETHERNET SWITCH 

ISON PRI ACCESS 

FLOOR SPACE, PRICE PER SOUARE FOOT 

IBM 8228 TOKEN RING MAU. (8) PORT, TYPE 1 

NCC ACCESS 

STORAGE CABINET 

Description 

3490 TAPE DRIVE W/4 DRIVES, IDRC 

31 741 L. 16 PORTS 

31741 R, 16 PORTS, RS232 WITH MODEM 

31741 R, 32 PORTS, RS232 WITH MODEM 

CHANNEL EXTENSION UNIT 

4248 LINE PRINTER 

METROCENTER FACILITY ACCESS 

3192 COMPATIBLE TERMINALS 

3192 COMPATIBLE TERMINALS. COLOR 

THE TERMS OF MIS SCHEDULE ARE CONFIDENTIAL. 

Quote ID 0893 A, Last Modified oYl9/1999 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 19 of 32
-- 

work Group Configuration: 

RcYOVERY SERVICES AGREEMENT DATED OUOl)llbkr - - IBETWEEN SUNGARD RECOVERY SERVICES INC. and DELTANR. iNC: 

Quantity 

2s 

1 

58 

2 

50 

3 

Mobile Configuration: Quantltv 

(Cust Ref: Server, PCs at San Ramon MetroCentcr) 2 

1 

1 

2 

Dc#ription 

327U TERMINALS 

ACCESS TO COPIER AND FACSIMILE 

FURNISHED WORK POSITION, WIRED, PHONE HANDSET 

METROCENTER ONSITE TEST SUPPORT PER TEST PER100 

VOICE GRADE LINES. DIRECT DIAL 

WIRING HUB, ETHERNET PORTS (1OMB) 

Darcrfrrtiun 

COMPAQ DESKPRO. VGA MONITOR, CDROM 

2 umfgwed as fokms: 

1 Y12oCPU 

32 MBRAM 

1 ETHERNET NIC 

1 GB DISK 

COMPAQ PROLlANT5MO. VGA MONITOR, CDROM 

1 conligumd as follows: 

1 PPnWCPU 

1 ETHERNET NIC 

128 MBRAM 

12 GB DISK 

HP LASER JET 5 Sl MX 

CODEX 3262 V.32 MODEMS, QUICK SHIP 

THE TERMS OF THIS SCHEDULE ARE CONFlOENTlAL 

Quote 10 4893 A, Last Modified 05/19/1999 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 20 of 32
ADDENDUM TO SCHEDULE A GOVERNED 8Y 

RECOVERY SERVICES AGREEMENT DATED MAY 15,1999 

BETWEEN SUNGARD RECOVERY SERVICES INC. & DELTANET, INC. 

Page 1 of 2 

The Recovery Services Agreement, having the above Subscn'ber execution date, between SunGard Recovery 

Services Inc. ("SunGard") and the Subscriber named below, f'Agreement"), with regard to the Schedule 

identified above CSpeCified Schedule") iS amended effective Mav 15.1999 , as follows: 

1. if Subscriber develops internally or acquires through a merger or acquisition its own internal backup facility 

(as defined below), then Subscriber may cancel a Schedule to this Agreement, effective at the end of the 

then current contract year or at the end of the next contract year, by giving written notice of cancellation to 

SunGard accompanied by payment of the cancellation fee descn'bed below. Subscriber's cancellation 

notice must describe, in reasonable detail, the internal backup facility that Subscriber has developed or 

acquired and must state the date on which such facility became operational (as described below). 

Subscriber's cancellation notice and payment must be received by SunGard at least 90 days before the 

effective date of cancellation. A "contract year is any 12-month period beginning on the Commencement 

Date or any anniversary of the Commencement Date. 

An "internal backup facility" is a separate computer facility that is available to backup subscriber's Location 

covered under a Schedule which includes an installed, fully operational, computer system substantially the 

same as or better than the Recovery Services then provided by SunGard under that Schedule. 

Subscriber's internal backup facility shall be considered "operational" at such time as Subscriber has 

completed a successful test of its ability to use that facility. 

The cancellation fee shall equal the product of the then current Monthly Fee payable under the affected 

Schedule, times the number of months between the Commencement Date (or most recent renewal date) 

and the effective date of cancellation under this provision, times the number of months remaining between 

the effective date of cancellation under this provision and the date the Schedule otherwise would have 

expired, times 0.834% (0.00834). This cancellation fee represents agreed-to liquidated damages and not a 

penalty. 

The right of cancellation granted under this provision may not be exercised dudng the first 36 months of 

the Agreed Term. This foregoing 36-month limitation shall be applicable during only the initial Agreed 

Term and not during any renewal term. 

2. At anytime during the initial Agreed Term of the Schedule, except if Subscriber is then experiencing a 

Disaster, Subscriber may elect to contract for additional Recovery Services (which are installed as part of 

SunGard's inventory at the time of such election) in accordance with the following price matrix. Such 

additional Recovery Services will be available to Subscriber effective upon the execution of an Addendum 

to the Specified Schedule defining such additional Recovery Resources: 

DescriDtion 

Each H5 or 9672 Mainframe MIP 

Each Additional Gigabyte of DASD 

Each Additional 3480 or 3490E Tape 

Drive 

Each Additional 3590 Tape Drive 

Each Additional T-1 Access 

Each Additional ISDN BRI Access 

Each Additional CSUIDSU 

5/15/99 to 6/1/00 to 8/1/01 to 811102 to 8/1/03 to 

5/31/00 7/31/01 7/31/02 7/31/03 8/14/04 

$14.00 $13.30 $12.60 $12.00 $1 1.40 

$4.00 $3.80 $3.60 $3.40 $3.20 

$1 0.00 $9.50 $9.00 $8.50 $8.00 

$16.00 $15.00 $14.25 $13.50 $12.75 

$40.00 $38.00 $36.00 $34.00 $32.00 

$10.00 $9.50 $9.00 $8.50 $8.00 

$10.00 $9.50 $9.00 $8.50 $8.00 

Initials 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 21 of 32
ADDENDUM TO SCHEDULE A GOVERNED BY 

* RECOVERY SERVICES AGREEMENT DATED MAY 15,1999 

BETWEEN SUNGARD RECOVERY SERVICES INC. & DELTANET, INC. 

Page 2 of 2 

The term of this Addendum shall continue until the end of the initial Agreed Term or any extended or renewal term of 

Specified schedule. 

jig ally 

bound, agree to all of the provisions of this Addendum and ratify the terms of the Agreement, 

SUNGARD RECOVERY SERVICES INC. SUBSCRIBER: DELTANET, JMC. 

By: 

Print: 

Print Title: 

Date Signed: 5 /31 fq 

By: 

Print: 

Print Title: 

Date Signed: 

1 / ui 

I I 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 22 of 32
Rev. M9 All 

ADDENDUM FOR SUNGARD NATIONAL NETWORK SERVICES 

TO SCHEDULE A GOVERNED BY 

RECOVERY SERVICES AGREEMENT DATED MAY 15,1999 

BETWEEN SUNGARD RECOVERY SERVICES INC. 8 DELTANET, INC. 

(See Additional Terms on Reverse Side) 

The SunGard Recovery Services Agreement, having the above date, between SunGard and the Subscriber named belou 

(‘Agreement‘), IS hereby amended with regard to the Schedule identtfied above (‘Specfied Schedule’), consistent wrth the terms ant 

conditions of the Agreement, as follows, effective May 15, 1999 Subscnber has elected for SunGard to provide the Network ana 

Internet Access Services (‘Services‘) selected below 

THE TERMS OF THIS ADDENDUM ARE CONFIL, 

A. NETWORK SERVICES 

sdicat%-j Connectivity 

0 DS-3 Connectivity 

(Destination Point ) 

(Destination Point ) 

$-Demk!i Connectivity 

QUANTITY TOTAL MONTHLY FEE 

NIA 

NIA 

1 5/15/99 to 5/31/00: $0 

(Destination Point SunGard San Ramon Facility to SunGard Philadelphia Facility) 6/1/00 to 8/15/04: $1,000 

0 DS-3 Connectivity N/A 

(Destination Point ) 

0 DS-1 Metropolitan Connectivity 

(Destination Point ) 

0 DS-3 Metropolitan Connectivity 

(Destination Point ) 

N/A 

NIA 

Unless the following section k completed, indicating that SunGard is responsible tiu providing the connection(s) between Subscriber‘s 

IouUon(s) and the designated point of presence on the Nalktionol Nerwork (“Local Access”), Subscriber is sddy rssponsible fw establishing tho 

connection between SubscdbePs hxaffon(s) and the designated polnt of presence on SunGardL National Network through Ib Local Exchange 

Provider. Once the Local Access has been established, Subscrfber is msponslble for contacting SunGard, to obtain the necessary kcilit) 

ass/gnment information to connect the Local Access to the SunGard National Network Noda 

National Network Access: 

0 DS-1 Access 

0 DS-3Access 

(Subscriber Access Point 

(Subscriber Access Point 

B. INTERNET ACCESS SERVICES 

Recovery Based Internet Access: 

0 N/A Internet Connectivrty 

0 NIA Internet Connectivity 

(Destination Point ) 

(Destination Point ) 

NIA 

NIA 

NIA 

NIA 

Subscriber will be invoiced an additional Monthly Fee of $1,000 (beginning June 1, 2000), plus any applicable tax, in accordance witt 

the terms of the Agreement and this Addendum. The term of this Addendum will commence upon the effective date noted above o 

the date of installation, whichever is later, and shall continue until the end of the initial Agreed Term for the Specified Schedule or an! 

extended or renewal term of the Specified Schedule. In addition, Subscriber is responsible for one-time installation charges in thc 

amount of $0, which will be invoiced in accordance wrth the terms of the Agreement and this Addendum, 

By the signatures of their duly authorized representatives below, SunGard and Subscriber, intending to be legally bound, agree to at 

of the provisions of this Addendum and ratify the terms of the Agreement. 

SUNGA 

BY:. t 

COVER SERV ESINC. SUBSCRIBER: DELTANHAC. 9bcr 

JESSE B. ADAMS 

PRINT TITLE: SR. VICE PRESIDENT PRINT TITLE: 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 23 of 32
Rev. US9 

d, NWOW SERVICES - DcdMcd Sewices The Netwxk Serviccr 

idam as 'D.dicat& din thr Addendum shall k made anibbk to 

s~b.cribeC on an exd~~, ZChour. 7day per mlc bprir (&ding domm~ 

8ttri-M @ Mm and ' maim-). UI (kdiabd a& 

be mnn- me=- point, as agnated and 

coordinated by SunGard Cpoint of prasnca7, and 11# Desbnation Point ddned 

on he fmnt pooe d Mdendum. Suhuriber dull ham a- o tha4 %NbS for hw Rm PUrpaa, m .ooQd.m dl SunGard's 

obligations as ddd in tta Agreement and as (clrth.r dc(ineatml in this 

Addendum. Any d Um Suvims by Subscriber shall condtuta a 

-rial d th &ramant fw sunold my tenni- ttm 

4- by pmvidino fiva (5) d.F wlibft e. 

For pu- of mi. Addendum. 'DiusWr R- Purpose' mama any ma d 

th. SeMm by SubrcriW (i) whik SUWkr h +ndng Dk.0~ (ii) 

which eon- faalibia SuQtribar's dunq a hurbw; fiii) b 

condud 8 Tesqs): or (i) for eleumnic nu)ting. 

pnamand -icy The Natnork Sd &&kd as Y)o-CkmanG Win 

this Wndum shall be made anihbk 0 SUM& wimin twn (2) hours a(k 

-pi d a roqcnct trwn SUQuikf. b8Md On Uwl Current anikbili on 

Sun~ard'r National in acmdana wtth Um Goned Mul'bpb Di.r.br 

prowduma in the I@WIVIO* All Onsmrond cire~ib All k conMcgd 

bebeen the National NelWUfk ~ntry Point. a8 wm and coordirU@d by 

SunGard Cpoint d pfuantc'). and th. Ikr(in8tion Pant del5n.d on the fmnt 

page d HIS Addendum. OnCe SUbrcnber ha k.n dkhd onb, a circuit on th -1 Ndwtk th. Serviaa AU beavlihbkon a 24 hour. 7 dry per 

mrk basis (excluding -ma mbk bp rwtirn and 

nuinbruna). Subrtrikr dull haw O hsn s.rvice8 tor lariq or Diasbr pum, COmirM wi(h SunOlrd's obli n Mnd in Um 

Agrarmnt Any &or use of thc Se- by Suhaikr .h.ll cond&b a 

mawial bra& of Um Agrnmant for which SunOlrd may tennimm Um 

Agrwmant by pmviding Rve (5) dap witkn notica. During a Om-, 

Subscriber shall have access to thc number d cirmib for Lhe period d no mom 

thn SK (6) nwR. 

For DS-3 connaetiwly, a DisIer D.claralon fa d no lass than $5.0#) Gll be 

charged pr occumna, and for DS-1 tonm&ity, a Diuabr Mantion fw d 

no less than $2.500 Gll k chargad par #xumna. If D.clantion Fw d qwl or gmmr nlue is chargad in associa- with th. SpacW Schedule. then Um 

D.Clmtion fa br National Nm will be dwmd included in 8uch fw. 

Daily Uuge Fees (por cimit during Db..h# only) rrJ( b. cham a fdlowr: 

DS-1 Con- tl.0oo 

DS-3 Con- f5.0oo 

DS-1 ConnOCMty-bn) $ Soa 

DS-3 Con- win) $1 .WO 

Memwlibn cOncl.cbvlty . ' Subscriber's eon- b limibd b th. Wopolin 

Ns(nark rrhich is d.(id on thc hmt d *is Addadurn. and doa no( prwid. 

Subsmibar &.connestivity bdvmm Wmpoliin Nebrmrft. 

8. INTERNET ACCESS SE RWCEf General Internet Access Terms. 

SunGard's Internel knu Smiccr Mil provid. Subscrlkr with 

connectlvlty to the lnterwt through SunClrd's Internet Access Slrvices 

and fully licensed Internet sofhvmre, If 8-k fh. Inbm.1 b nd mwd. 

opwabd, or mnsgd by, or in 8ny my PmtbM wlth Sun0.d or any d 

faded and mfmdenl inbfqmnbb pckt dWmd dab fmlwrbs. Sunhd 

annot and will not guarrnWa Unt th lnbmd karr Sh rvill pmvid. 

Intamat access (h.t is aumdmnt B md SubsctiWs ds. Subscriber .gmr 

that its use d(t# Inbrmt- S.nia and th.H.ma k My at ibm risk 

and is subject b all appkakb -1, .M.. tm6OnaI and intarrdonal Ian5 and 

mguiabons. 

Subscriber hereby a( SunGafd's andlor its 

underlying carriers' polkks andlor ruks ad rcguWonr ("pdickr") and 

agrees to comply wtth such Pdicks 1 all times while utillrlnp the Internet 

kcess Services. Subscriber also rcknowkdger that a brarch d any d the 

Policies may result In the immediate termlndion of the Interne! Access 

Services without prior notice and SunGard shall have no liabiltty to 

Subscriber for any reslridion or tCrminrtkn d the Internet Access Services 

pursuant to SubrdWt violation d the Policies. Subscriber agrws th.1 Um 

Amrr Scrviw is provided on an *as is'. .as amibbk' basis without wamnt#r 

of any bnd. either express or implied. Subscriber agrees th+ SunGard has 

right, but not the obligabn. B remove content from SunGafd'r compvtsr servers 

wnlch SunCard. in tls sole discrebon. deknnina to be in violation d thn 

subject to the terms and coodltionr d th. Agreement and this wd.ndum 

SunGard's afilutSr. Th lnbmd m M hbmabom . Iomprbrcw(wRl(rdbaul 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 24 of 32
ADDENDUM TO 

RECOVERY SERVICES AGREEMENT DATED MAY 15,1999 

The Recovery Services Agreement, having the above date, between SunGard Recovery Services Inc. 

(“SunGadT and the Subwiber named below, (“Agreement”), is amended as follows: 

1, section Dl Contract Term is amended by deleting the third sentence in the section and replacing it with the 

following: 

‘Thereafter, that Schedule shall automatically renew for successive one-year renewal terms at the then 

current one-year rate, unless either party gives written notice of termination to the other at least ninety (90) 

days before the end of the then current term.“ 

2. Section 05 Force Maieure is amended by deleting the words ‘five days’ in the last sentence of the section 

and replacing them with the words rhree (3) days’. 

3. Subscriber shall have the right to extend the benefds of this Agreement to its Affiliates provided that those 

entities agree to be bound by the terms and conditions hereof. Notwithstanding the foregoing, agreements 

for Hotsite (for each IBM mainframe Hotsite equal to or greater than Model 308X) shall not be entered into 

covering two (2) subscriber computer facilities which are located in the same building. Each Affiliate that 

obtains Recovery Services hereunder shall be solely responsible for performing the duties and obligations 

imposed by this Agreement. 

An ‘Affiliate’ means any corporation, partnership, joint venture or other entity controlling, controlled by or 

under common control with Subscriber, directly or indirectly by or through one or more intermediaries. 

SunGard will provide a single point of contact to Subscriber out of its California offices and agrees to use 

all reasonable efforts to coordinate all marketing and contract activity through this point of contact. 

However, Subscriber recognizes that SunGard‘s organizational structure is such that tenitones are 

managed independently and locally. 

4. 

By the signatures of their duly authorized representatives below, SunGard and Subscriber, intending to be legally 

bound, agree to all of the provisions of this Addendum and ratify the terms of the Agreement. 

SUN RECOVERY SERVICES INC. 

BY‘ 

ESSE R. A~WQ 

SR. VICE PRESIDENT 

DATE SIGNED: ,193 

I THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL. 1 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 25 of 32
ADDENDUM TO 

RECOVERY SERVICES AGREEMENT DATED MAY 15,1999 

The Recovery Services Agreement, having the above date, betwen SunGard Recovery Services Inc. 

("SunGard") and the Subscriber named below, ("Agreement"), is amended as follows: 

1. Section Dl Contract Ten is amended by deleting the third sentence in the section and replacing it with the 

following: 

'Thereafter, that Schedule shall automatically renew for SucceSSive one-year renewal terms at the then 

current one-year rate, unless either party give written notice of termination to the other at least ninety (90) 

days before the end of the then current term." 

2. Section 05 Force Maieure is amended by deleting the words 'five days' in the last sentence of the section 

and replacing them with the words "three (3) days". 

3. Subscriber shall have the right to extend the bffis of this Agreement to its Affiliates provided that those 

entities agree to be bound by the terms and conditions hereof. Notwithstanding the foregoing, agreements 

for Hotsite (for each IBM mainframe Hotsite equal to or greater than Model 308X) shall not be entered into 

covering tvm (2) subscriber computer facilities which are located in the same building. Each Affiliate that 

obtains Recovery Services hereunder shall be solely responsible for performing the duties and obligations 

imposed by this Agreement. 

An uAffiliate" means any corporation, partnership, joint venture or other entity controlling, controlled by or 

under common control with Subscriber, directly or indirectly by or through one or more intermediaries. 

4. SunGad will provide a single point of contact to Subsuiber out of its California offices and agrees to use 

all reasonable efforts to coordinate all marketing and contract activity through this point of contact. 

However, Subscriber recognizes that SunGard's organizational structure is such that territories are 

managed independently and locally. 

The parties agree that the deletion of the word 'pricing' in Section 03. 'Confidentiality" is deemed null and 

void. Further, said Section 03 is amended by adding the following to the end of the section: 

5. 

"To the extent necessary to facilitate the use of this Agreement amongst entities within Subscriber's 

organization, Subscriber may disclose confidential information to such entities, provided that said entities 

are advised as to the confidential nature of the information being disclosed." 

6, This Addendum supersedes and replaces the prior Addendum to the Agreement, having a Subscriber 

execution date of May 20,1999. 

By the signatures of their duly authorized representatives below, SunGard and Subscriber. intending to be legally 

bound, agree to all of the provisions of this Addendum and ratify the terms of the Agreement. 

SUBSCRIBER: 0 

BY 

PRfM NAME' rw 

VICE PRESIDENT PRINT TIM 

DATE SIGNED 

r THE TERMS OF THIS ADDENDUM ARE CONFIDENTIAL. J 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 26 of 32
EXHIBIT B 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 27 of 32
Deltanet, Inc. 

May 30:1999 

-- 

Contract Administration 

SunGard Recovery Services 

1285 Drummers Lane 

Wayne, Pennsylvania 19087 

In accordance with Section D (Other Terms), for the Recovery Services Agreement between 

SunGard Recovery Services Inc. and Deltanet Inc., dated May 15, 1999, Deltanet hereby 

notifies SunGard Recovery Services that this agreement is terminated for cause as of July 

31 , 2000. 

Deltanet has experienced significant problems with the timely delivery of equipment. 

(Schedule A to the master agreement and the Network Services Addendum to schedule A 

specifically identify the equipment and test periods for Deltanet .) These problems have 

caused Deltanet a loss of technical resource hours and resulted in costs for the logistics of 

supporting recovery exercises at the San Ramon SunGard facility. In addition Deltanet has 

incurred damage to their ability to market its claims processing product because the Deltanet 

client perceives that SunGard cannot recovery the clients application system. 

On May 21, 1999, Deltanet performed a recovery exercise with SunGard to validate the 

ability of SunGard to provide recovery services. The recovery equipment was not received in 

accordance with Deltanet's test time window. It was not received until 2 and '/z hours after 

the start of the test. SunGard indicated this was an abnormally and that the equipment 

would be ready at the next recovery test. 

On June 6, 1999, Deltanet performed its second recovery exercise with SunGard. Again the 

recovery equipment was not received in accordance with Deltanet's test time window. It was 

not received until 4 and l/i hours after the start of the test. This delay put one of Deltanet's 

client contracts at risk (the Delta Dental contract with the State of California). Deltanet 

issued a formal statement to SunGard asking that they remedy the problem. On August 1 8th, 

Deltanet representatives met with the Senior V. P. of Marketing in Sacramento, California to 

express their dissatisfaction with the inability of SunGard to deliver equipment as per the 

Recovery Services Agreement. 

On December 7, 1999, SunGard provided identified three processes that it would follow to 

ensure that Deltanet would receive the equipment in a timely manner and in accordance with 

the Recovery Setvices Agreement. They were: Configuration Checklist; Escalation 

Procedures; and Test Plan Development. Deltanet provided time and labor to support these 

SunGard processes. 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 28 of 32
John Hoebeke 

.. May 30, 2000 

Page 2 of 2 

On May 19,2000, Deltanet performed its third recovery exercise with SunGard. This time 

the recovery equipment was not received, in accordance with Deltanet test time window, for 

17 and '/z hours after the start of the test. Partial equipment was received 5 and '/2 hours 

after the start of the test, which allowed Deltanet personnel to begin a reduced level of 

recovery activity; however, many complete break downs of this reduced level of recovery 

occurred though out the test time period. 

Again, Deltanet, in accordance with our agreement, is notifying SunGard of a causal effect 

that has rendered our agreement breached. Deltanet has waited for a considerable time for 

SunGard to cure this breach and SunGard has been unable to do so. As of July 31, 2000, 

Deltanet understands that this Recovery Services Agreement is null and void. 

Vice President and Chief Financial Officer 

Deltanet, Inc. 

CC: Doug O'Brien (SunGard) 

Fred Smith (Deltanet) 

A~!A 

VAW Deltanet, Inc. 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 29 of 32
C,-sd Airbill $5 8203 8226 6527 

2 Your Internal Billing Reference . 

L 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 30 of 32
EXHIBIT C 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 31 of 32
SunGxd 1285 Or 'rs he 

Rc~~vcry Services Inc. Wayne. k1.19087 

(610) 341-8700 TcI 

(800) 523-4970 

June 26,2000 

Mr. John Hoeheke 

Vice President and Chief Finanaal Officer 

DELTANET, INC. 

100 First Street, Suite 2100 

San Francisco, CA 941 05 

Dear Mr. Hoebeke: 

I am in receipt of your letter dated May 30, 2000 regarding the Recovery Sewices Agreement dated May 

15,1999 between SunGard Recovery Services Inc. and Dehnet, Inc. (the "Agreemeno. SunGard is not in 

agreement with your contention that SunGard has breached its obligations under the Agreement and, 

therefore, does not accept your request to terminate the Agreement effective July 31, 2OOO. 

SunGard arranged for Dettanet, Inc. to condud its Tests of the Recovery Senrices remotely from SunGard's 

San Ramon recovery center. The Network Services defined on the Addendum for SunGard National 

New& Services to Schedule A to the Agreement provided the connediwty from SunGards San Ramon 

recovery faalii to SunGard's Philadelphia MegaCertter. 

Your letter states that, on a number of occrrsions, 'recovery equipment was not received in accordance with 

Deltanet's test time window.' The Tests wre to be conducted remotely, which does not require shipment of 

any equipment to the San Ramon faalii. All of the contraded Recovery Resources were available, in 

SunGard's Philadelphia Megacenter, at all times during the Tests. One problem with the Tests was a 

result of the network lines being dom, resulting in difficulty in providing connectivrty from San Ramon to the 

equipment in SunGard's Philadelphia Megacenter. As the network lines are provided by a third party 

carder, it was not within SunGard's control to resolve this problem completely and provide the necessary 

connecbvity to DeltaNet. Further, some of the channel extension equipment being us& was not functioning 

property, atthough the equipment is continuously maintained under a maintenance agreement, resulting in 

further difficulty in securing a netMxk connection. In an effort to avoid this problem, SunGard offered use of 

our PCROC equipment which is resident in San Ramon. However, DettaNet dedined usage of this 

alternative solution. As stated in section 05, Force Maieure, of the Agreement, the failure to perfom by any 

supplier or other party is a force majeure event, for which SunGard is not liable. 

SunGard has gone to great lengths to resolve the problems, both during the Tests, and in December 1999, 

when SunGard created the three processes identied in your letter to help ensure that Debnet's next Test 

would be successful. In addition, SunGard has provided extra test time at no cost to Deltanet in order to 

resolve the issue and help Deltanet to complete a successful Test. A! all times, SunGard has been working 

diligently to help resolve the problems encountered during Deltanet's Tests, and will continue to do so until 

the problems are resolved to your reasonable satisfaction. 

SunGard prefers to resolve this matter in an amicable business manner. It is SunGards policy to be as 

flexible and accommodating as possible with its arstomers, while at the same time being extremely careful 

to protect the integnty of its contracts. If you have any questions or concerns, please contact Don O'Brien, 

Sr. Vice President of Sales, at 480-367-4124, or mysetf at 61 0-341 -1 505. 

Sincerely, 

enise M. MacLeod '' Director, Contract Administration - Legal 

SUNGARD' 

Case 2:02-cv-04445-MK Document 10 Filed 09/23/2002 Page 32 of 32