exv10w13wxiy






Exhibit 10.13(i)




Execution Version




DATA SERVICES AGREEMENT




between




HMS BUSINESS SERVICES, INC.




and




ACCORDIS HOLDING CORP.




Dated July 31, 2007




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Article 1 DEFINITIONS AND CONSTRUCTION
	 	 	1	 
	 
	1.01 Definitions
	 	 	1	 
	 
	1.02 Incorporation and References
	 	 	7	 
	 
	1.03 Headings
	 	 	7	 
	 
	1.04 Interpretation of Documents
	 	 	7	 
	 
	 	 	 	 
	Article 2 TERM
	 	 	8	 
	 
	2.01 Initial Term
	 	 	8	 
	 
	2.02 Renewal and Extension
	 	 	8	 
	 
	 	 	 	 
	Article 3 DESIGNATED SERVICES
	 	 	8	 
	 
	3.01 General
	 	 	8	 
	 
	3.02 Reports
	 	 	8	 
	 
	 	 	 	 
	Article 4 OUT-OF-SCOPE SERVICES
	 	 	8	 
	 
	4.01 Out-of-Scope Services
	 	 	8	 
	 
	 	 	 	 
	Article 5 CUSTOMER RESPONSIBILITIES
	 	 	9	 
	 
	5.01 Customer Contract Managers
	 	 	9	 
	 
	5.02 Use of Customer Facilities
	 	 	9	 
	 
	 	 	 	 
	Article 6 SERVICE LEVELS
	 	 	9	 
	 
	6.01 Designated Service Levels
	 	 	9	 
	 
	6.02 Out-of-Scope Service Levels
	 	 	9	 
	 
	6.03 Adjustment of Service Levels
	 	 	9	 
	 
	6.04 Root-Cause Analysis
	 	 	10	 
	 
	6.05 Service Level Reporting
	 	 	10	 
	 
	6.06 Measurement and Monitoring Tools
	 	 	10	 
	 
	6.07 Performance Credits
	 	 	10	 
	 
	 	 	 	 
	Article 7 SERVICE LOCATIONS
	 	 	11	 
	 
	7.01 Service Locations
	 	 	11	 
	 
	7.02 Safety and Security Procedures
	 	 	11	 
	 
	7.03 Data Security
	 	 	11	 
	 
	 	 	 	 
	Article 8 VENDOR CONTRACT MANAGER AND SUBCONTRACTING
	 	 	12	 
	 
	8.01 Vendor Contract Manager
	 	 	12	 
	 
	8.02 Project Staff
	 	 	12	 






i









 






	 	 	 	 	 
	8.03 Subcontractors
	 	 	12	 
	 
	 	 	 	 
	Article 9 MANAGEMENT AND CONTROL
	 	 	13	 
	 
	9.01 Contract Managers
	 	 	13	 
	 
	9.02 Change Control Procedures
	 	 	13	 
	 
	 	 	 	 
	Article 10 PROPRIETARY RIGHTS
	 	 	13	 
	 
	10.01 Third Party Software
	 	 	13	 
	 
	 	 	 	 
	Article 11 DATA
	 	 	13	 
	 
	11.01 Ownership of Customer Data
	 	 	13	 
	 
	11.02 Return of Data
	 	 	13	 
	 
	 	 	 	 
	Article 12 LIMITATION OF LIABILITY
	 	 	14	 
	 
	12.01 Disclaimer
	 	 	14	 
	 
	12.02 Limitation
	 	 	14	 
	 
	 	 	 	 
	Article 13 DISASTER RECOVERY AND FORCE MAJEURE EVENTS
	 	 	14	 
	 
	13.01 Disaster Recovery Plan
	 	 	14	 
	 
	13.02 Force Majeure
	 	 	14	 
	 
	13.03 Alternate Source
	 	 	15	 
	 
	13.04 No Payment for Unperformed Services
	 	 	15	 
	 
	 	 	 	 
	Article 14 PAYMENTS AND INVOICING
	 	 	16	 
	 
	14.01 General
	 	 	16	 
	 
	14.02 Designated Fees
	 	 	16	 
	 
	14.03 Time of Payment
	 	 	16	 
	 
	14.04 Adjustments to Fees
	 	 	16	 
	 
	14.05 Unused Credits
	 	 	16	 
	 
	14.06 Late Payments
	 	 	16	 
	 
	 	 	 	 
	Article 15 AUDITS
	 	 	16	 
	 
	15.01 Services
	 	 	16	 
	 
	15.02 Record Retention
	 	 	16	 
	 
	15.03 Facilities
	 	 	16	 
	 
	 	 	 	 
	Article 16 CONFIDENTIALITY
	 	 	17	 
	 
	16.01 General Obligations
	 	 	17	 
	 
	16.02 Unauthorized Acts
	 	 	17	 
	 
	 	 	 	 
	Article 17 REPRESENTATIONS AND WARRANTIES
	 	 	18	 






ii









 





	 	 	 	 	 
	17.01 By Customer
	 	 	18	 
	 
	17.02 By Vendor
	 	 	18	 
	 
	17.03 DISCLAIMER
	 	 	19	 
	 
	 	 	 	 
	Article 18 ADDITIONAL COVENANTS
	 	 	19	 
	 
	18.01 By Customer
	 	 	19	 
	 
	18.02 By Vendor
	 	 	19	 
	 
	 	 	 	 
	Article 19 DISPUTE RESOLUTION
	 	 	20	 
	 
	19.01 Contract Managers
	 	 	20	 
	 
	19.02 Arbitration
	 	 	20	 
	 
	 	 	 	 
	Article 20 TERMINATION
	 	 	21	 
	 
	20.01 Termination for Cause
	 	 	21	 
	 
	20.02 Termination for Insolvency
	 	 	21	 
	 
	20.03 Termination to Conform to Law
	 	 	21	 
	 
	20.04
Termination by Customer
	 	 	21	 
	 
	 	 	 	 
	Article 21 TERMINATION ASSISTANCE
	 	 	21	 
	 
	 	 	 	 
	Article 22 INDEMNITIES
	 	 	22	 
	 
	22.01 Indemnity by Customer
	 	 	22	 
	 
	22.02 Indemnity by Vendor
	 	 	22	 
	 
	22.03 Indemnification Procedures
	 	 	23	 
	 
	22.04 SPA Indemnification
	 	 	23	 
	 
	 	 	 	 
	Article 23 MISCELLANEOUS PROVISIONS
	 	 	23	 
	 
	23.01 Assignment
	 	 	23	 
	 
	23.02 Notices
	 	 	24	 
	 
	23.03 Counterparts
	 	 	24	 
	 
	23.04 Relationship
	 	 	24	 
	 
	23.05 Consents, Approvals and Requests
	 	 	25	 
	 
	23.06 Severability
	 	 	25	 
	 
	23.07 Waivers
	 	 	25	 
	 
	23.08 Remedies Cumulative
	 	 	25	 
	 
	23.09 Entire Agreement
	 	 	25	 
	 
	23.10 Amendments
	 	 	25	 
	 
	23.11 Survival
	 	 	25	 






iii









 






	 	 	 	 	 
	23.12 Third Party Beneficiaries
	 	 	25	 
	 
	23.13 Governing Law
	 	 	25	 
	 
	23.14 Sole and Exclusive Venue
	 	 	25	 
	 
	23.15 Covenant of Further Assurances
	 	 	25	 
	 
	23.16 Negotiated Terms
	 	 	26	 
	 
	23.17 Export
	 	 	26	 
	 
	23.18 Conflict of Interest
	 	 	26	 
	 
	23.19 Publicity
	 	 	26	 






iv









 






TABLE OF EXHIBITS




	 	 	 
	Exhibit 1

	 	Statement of Work
	Exhibit 2

	 	Third Party Software
	Exhibit 3

	 	Service Location
	Exhibit 4

	 	Designated Fees
	Exhibit 5

	 	Service Levels and Performance Credits
	Exhibit 6

	 	In Scope Maximums
	Exhibit 7

	 	Hourly Rate Schedule
	Exhibit 8

	 	Reports
	Exhibit 9

	 	Data Safeguards
	Exhibit 10

	 	Change Control Procedures
	Exhibit 11

	 	Disaster Recovery Transition Procedures
	Exhibit 12

	 	Business Associates Agreement






v









 






Execution Version




               This DATA SERVICES AGREEMENT, dated July 31, 2007 (the “Effective Date”), is between HMS Business
Services, Inc. (“Vendor”) and Accordis Holding Corp. (“Accordis Holding”).



W I T N E S S E T H:



               WHEREAS, Section 6.1(f) of the Stock Purchase Agreement between HMS Holdings Corp. (“HMS”) and
Accordis Holding dated August 31, 2005 (the “SPA”), pursuant to which Accordis Holding is acquiring
all of the capital stock of Accordis, Inc. (“Accordis”), requires that Vendor and Accordis Holding
enter into a services agreement to provide that Vendor, an affiliate of HMS, would perform data
processing and hosting services to Accordis Holding and certain of its Affiliates (defined below
collectively as Customer) to the same extent that Accordis and its subsidiary HRM received such
services as subsidiaries of HMS prior to the closing of the transactions contemplated in the Stock
Purchase Agreement; and



               WHEREAS, Vendor desires to provide to Customer, and Customer desires to obtain from Vendor, the
data processing, data storage and data management services and related services described in this
Agreement on the terms and conditions set forth in this Agreement.



               NOW, THEREFORE, for and in consideration of the agreements set forth below, Customer and Vendor
agree as follows:



ARTICLE 1 DEFINITIONS AND CONSTRUCTION.





               1.01 Definitions. The following defined terms used in this Agreement shall have the
meanings specified below:




“AccessLine” shall mean a series of Customer-licensed, proprietary batch and online CICS
programs used to manage the Customer’s business.




“AccessLine Accounts” shall mean the active accounts of responsible parties or patients of
clients of Customer’s AccessLine business that constitute active accounts in AccessLine.




“Accordis” shall mean Accordis, Inc., a corporation organized under the Law of New York.




“Affiliate” shall mean, as to any entity, any other entity that, directly or indirectly,
Controls, is Controlled by or is under common Control with such entity.




“Agreement” shall mean this Data Services Agreement between Customer and Vendor.




“Change(s)” shall mean any change to the Services, the Software used to provide the
Services or the Machines used to provide the Services that would materially alter the
functionality, performance standards or technical environment of the Software used to provide the
Services or the Machines used to provide the Services, the manner in which the Services are
provided, the composition of the Services or the cost to Customer of the Services. Software patches
and upgrades provided by the third party Software vendors













 






listed on Exhibit 2 shall not be deemed Changes unless the implementation requires material
modification of the Machines. Phase-out or complete termination of Standard Processing shall not be
deemed Changes.




“Change Control Procedures” shall mean the written description of the procedures used to
control Changes made under this Agreement set forth in Exhibit 10.




“Change in Control” shall mean the (1) consolidation or merger of a Party with or into any
entity (other than the consolidation or merger of a Party with an Affiliate of such Party in which
such Party is the surviving entity of such consolidation or merger), (2) sale, transfer or other
disposition of all or substantially all of the assets of a Party or (3) acquisition by any entity,
or group of entities acting in concert, of beneficial ownership of 20 percent or more (or such
lesser percentage that constitutes Control) of the outstanding voting securities or other ownership
interests of a Party.




“Confidential Information” of Customer or Vendor shall mean all information and
documentation of Customer and Vendor, respectively, whether disclosed to or accessed by Customer or
Vendor in connection with this Agreement, including (1) with respect to Customer, all Customer Data
and all information of Customer or its customers, suppliers, contractors and other third parties
doing business with Customer, (2) with respect to Vendor, the Third Party Software, (3) with
respect to Customer and Vendor, the terms of this Agreement and (4) any information developed by
reference to or use of Customer’s or Vendor’s information; provided, however, that except to the
extent otherwise provided by Law, the term “Confidential Information” shall not include information
that (a) is independently developed by the recipient, as demonstrated by the recipient’s written
records, without violating the disclosing Party’s proprietary rights, (b) is or becomes publicly
known (other than through unauthorized disclosure), (c) is already known by the recipient at the
time of disclosure, as demonstrated by the recipient’s written records, and the recipient has no
obligation of confidentiality other than pursuant to this Agreement or any confidentiality
agreements between Customer and Vendor entered into prior to the Effective Date or (d) is
rightfully received by a Party free of any obligation of confidentiality. Notwithstanding anything
to the contrary set forth above, any and all information provided by or owned by Customer that
could be used to identify individual patients, providers, or third party payors, shall be deemed
Confidential Information of Customer, regardless of the form or format of such information.




“Contract Managers” shall mean the Customer Contract Managers and the Vendor Contract
Manager, collectively.




“Contract Year” shall mean each 12-month period commencing, in the case of the first
Contract Year, on the Effective Date and thereafter upon the completion of the immediately
preceding Contract Year.




“Control” shall mean, with respect to any entity, the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of such entity,



2









 






whether through the ownership of voting securities (or other ownership interest), by contract or
otherwise.




“Customer” shall mean Accordis Holding, its wholly-owned subsidiary Accordis, Accordis’
wholly-owned subsidiary HRM and any other Affiliates of Accordis Holding as may be approved by
Vendor in writing, which approval will not be unreasonably withheld.




“Customer Agents” shall mean the agents, subcontractors and representatives of Customer,
other than Vendor and Vendor Agents, subject to the confidentiality restrictions of this Agreement.




“Customer Consents” shall mean all licenses, consents, permits, approvals and
authorizations that are necessary to allow Vendor and Vendor Agents to use (1) Customer’s owned
assets and (2) the services provided for the benefit of Customer under Customer’s third party
services contracts.




“Customer Contract Manager” shall mean Richard Lipack or his successor as designated by
Customer.




“Customer Data” shall mean all data and information (including the data library and
catalogue) (1) submitted to Vendor or Vendor Agents by or on behalf of Customer, (2) obtained,
developed or produced by Vendor or Vendor Agents in connection with this Agreement or (3) to which
Vendor or Vendor Agents have access in connection with the provision of the Services. Without
limiting the generality of the foregoing, and for the avoidance of doubt, any and all data and
information provided by or owned by Customer that could be used to identify individual patients,
providers, or third party payors, shall be deemed Customer Data, regardless of the form or format
of such information.




“Customer Designated Executives” shall mean ????? or his successor as designated by
Customer.




“Customer Service Locations” shall mean any Customer service location set forth in
Exhibit 3 and any other service location owned or leased by Customer for which Vendor has
received Customer’s approval in accordance with Section 7.01.




“Data Safeguards” shall mean the data safeguards set forth on Exhibit 9 hereto.




“Designated Executives” shall mean the Customer Designated Executives and the Vendor
Designated Executive, collectively.




“Designated Fees” shall mean the fees for the Designated Services set forth in Exhibit 4.




“Designated Service Levels” shall mean the service levels and standards for the performance
of the Designated Services as described in Exhibit 5.




“Designated Services” shall have the meaning set forth in Section 3.01.



3









 






“DRP” shall have the meaning set forth in Section 13.01.




“Effective Date” shall have the meaning set forth in the introductory paragraph hereto.




“Fees” shall mean the Designated Fees and any other amounts payable by Customer to Vendor
pursuant to this Agreement.




“Force Majeure Event” shall have the meaning set forth in Section 13.02.




“Governmental Approvals” shall mean all licenses, consents, permits, approvals and
authorizations of any Governmental Authority, or any notice to any Governmental Authority, the
granting of which is required by Law, including Regulations, for the consummation of the
transactions contemplated by this Agreement.




“Governmental Authority” shall mean any federal, state, municipal, local, territorial, or
other governmental department, regulatory authority, judicial or administrative body, whether
domestic, international or foreign.




“HMS” shall mean Health Management Systems Inc., a corporation organized under the Law of
New York




“HRM” shall mean Accordis’ wholly-owned subsidiary Health Receivables Management, Inc.




“Indemnified Party” shall have the meaning set forth in Section 22.03.




“Indemnifying Party” shall have the meaning set forth in Section 22.03.




“Initial Agreement Expiration Date” shall mean the fourth anniversary of the Effective
Date.




“Initial Term” shall have the meaning set forth in Section 2.01.




“Law” shall mean any declaration, decree, directive, legislative enactment, order, ordinance,
Regulations, rule or other binding restriction of or by any Governmental Authority, including,
without limitation and for the avoidance of doubt, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA).




“Losses” shall mean any and all damages, fines, penalties, deficiencies, losses, liabilities
(including settlements and judgments) and expenses (including interest, court costs, reasonable
fees and expenses of attorneys, accountants and other experts and professionals or other reasonable
fees and expenses of litigation or other proceedings or of any claim, default or assessment).




“Machines” shall mean computers and related equipment, including central processing units
and other processors, wireless and wired networks, controllers, modems, communications and
telecommunications equipment (data and video), cables, storage devices, printers,




4











 






terminals, cartridge and tape drive readers, other peripherals and input and output
devices, and other tangible mechanical and electronic equipment intended for the
processing, input, output, storage, manipulation, communication, transmission and retrieval
of information and data.




“Out-of-Scope Service(s)” shall mean any service, product, Machine, or Software
that is outside the scope of the Designated Services.




“Out-of-Scope Service Level(s)” shall mean any service level established by Vendor
and Customer in connection with an Out-of-Scope Service.




“Parties” shall mean Customer and Vendor, collectively.




“Party” shall mean either Customer or Vendor, as the case may be.




“Performance Credits” shall mean the performance credits set forth in Exhibit
5.




“RCR Clients” shall mean the Customer clients that require Standard Processing.




“Regulations” shall have the same meaning in this Agreement as is given to that
term in the SPA.




“Related Documentation” shall mean, with respect to Software and Tools, all
materials, documentation, specifications, technical manuals, user manuals, flow diagrams,
file descriptions and other written information that describes the function and use of such
Software or Tools, as applicable.




“Service Levels” shall mean the Designated Service Levels and the Out-of-Scope
Service Levels, collectively.




“Service Locations” shall mean any Customer Service Location or Vendor Service
Location, as applicable.




“Services” shall mean the Designated Services, the Out-of-Scope Services being
provided by Vendor pursuant to this Agreement and the Termination Assistance Services,
collectively.




“Software” shall mean the source code and object code versions of any applications
programs, operating system software, computer software languages, utilities, other computer
programs and Related Documentation, in whatever form or media, including the tangible media
upon which such applications programs, operating system software, computer software
languages, utilities, other computer programs and Related Documentation are recorded or
printed, together with all corrections, improvements, updates and releases thereof.




“Standard Processing” shall mean a series of Customer-owned proprietary batch
programs used to manage the Customer RCR product line.



5









 






“Systems” shall mean the Software and the Machines, collectively, used to
provide the Services.




“Term” shall mean the Initial Term and any renewal or extension of the Initial Term.




“Termination Assistance Period” shall mean a period of time designated by Customer,
commencing no earlier than 90 days prior to the Initial Agreement Expiration Date and
ending upon expiration of the Initial Agreement Expiration Date, during which Vendor shall
provide the Termination Assistance Services.




“Termination Assistance Services” shall mean (1) the Services to the extent
Customer requests such Services during the Termination Assistance Period, (2) Vendor’s
cooperation with Customer or another service provider designated by Customer in the
transfer of the Services to Customer or such other service provider in order to facilitate
the transfer of the Services to Customer or such other service provider and (3) any
Out-of-Scope Services requested by Customer in order to facilitate the transfer of the
Services to Customer or another service provider designated by Customer.




“Third Party Software” shall mean the third party Software and Related
Documentation licensed, leased or otherwise obtained by Vendor that is used in connection
with the Services or with any Third Party Software as set forth in Exhibit 2.




“Tools” shall mean any Software development and performance testing tools,
know-how, methodologies, processes, technologies or algorithms and Related Documentation
used by Vendor in providing the Services, and based upon trade secrets or software,
documentation or other proprietary information owned or licensed by Vendor.




“Total In Scope AccessLine Accounts” shall mean the number of AccessLine Accounts
allowed under the Designated Services as outlined in Exhibit 6, In Scope Maximums.
For the avoidance of doubt, only active AccessLine Accounts shall be counted in the Total In
Scope AccessLine Accounts.




“Total In Scope RCR Clients” shall mean the number of RCR Clients that are allowed
under the Designated Services as RCR Clients requiring Standard Processing as outlined in
Exhibit 6, In Scope Maximums.




“Use” shall mean the right to access, load, execute, store, transmit, display, copy,
maintain, modify, enhance, create derivative works, make and have made.




“Vendor” shall mean HMS Business Services, a corporation organized under the Law of
New York.




“Vendor Agents” shall mean the agents, subcontractors and representatives of Vendor.



6









 






“Vendor Consents” shall mean all licenses, consents, permits, approvals and
authorizations that are necessary to allow (1) Customer and Customer Agents to use (a) the
Third Party Software and (b) assets owned or leased by Vendor for the provisions of the
Services; and (2) Vendor and Vendor Agents to use any third party services retained by
Vendor to provide the Services during the Term and the Termination Assistance Period.




“Vendor Contract Manager” shall mean Joseph Joy or his successor.




“Vendor Designated Executive” shall mean Bill Lucia, or his successor.




“Vendor Machines” shall mean those Machines leased or owned by Vendor or
Vendor Agents that are used by Vendor or Vendor Agents to provide the Services.




“Vendor Service Location(s)” shall mean any Vendor service location set forth in
Exhibit 3 and any other service location approved by Customer pursuant to
Section 7.01.




“Virus” shall mean (i) any software virus, worm, Trojan horse, trap door, time
bomb, spyware, or other program code, programming instruction or set of instructions
intentionally constructed by third parties having the capability to damage, interfere with
or otherwise adversely affect the operation or security of computer programs, data files,
operations, telecommunications or Services; or other code typically designed to be a virus.
or (ii) any copies of Grokster, Kazaa, Morpheus, Napster, Aimster or other peer-to-peer software.
• • • • • • • • • • • Exhibits to this Agreement:




	 	(1)	 	the Exhibits to this Agreement shall be incorporated into and deemed part
of this Agreement and all references to this Agreement shall include the Exhibits
to this Agreement;
	 
	 	(2)	 	references to an Exhibit, Section or Article shall be to such Exhibit,
Section or Article of this Agreement, unless otherwise provided;
	 
	 	(3)	 	references to any Law shall mean references to such Law in changed or
supplemented form or to a newly adopted Law replacing a previous Law; and
	 
	 	(4)	 	references to and mentions of the word “including” or the phrase “e.g.” shall
mean “including, without limitation.”





          1.03 Headings. The Article and Section headings, Table of Contents and Table of
Exhibits are for reference and convenience only and shall not be considered in the interpretation
of this Agreement.




          1.04 Interpretation of Documents. Except as otherwise expressly set forth in the
body of this Agreement or in any of the Exhibits, in the event of a conflict between the
provisions in the body of this Agreement and the Exhibits, the provisions in the body of this
Agreement shall prevail.





7









 








ARTICLE 2 TERM.




          2.01 Initial Term. The initial term of this Agreement shall commence on the Effective
Date and continue until 23:59 (Eastern Standard Time) on the Initial Agreement Expiration Date, or
such other date upon which this Agreement may be terminated in accordance with its terms (the
“Initial Term”).




          2.02 Renewal and Extension. Unless this Agreement is terminated earlier pursuant to the
terms hereof, Customer shall notify Vendor at least 180 days prior to the Initial Agreement
Expiration Date as to whether Customer desires to renew this Agreement. If Customer provides Vendor
with notice that it desires to renew this Agreement and the Parties have not agreed on the terms
and conditions applicable to the renewal of this Agreement 90 days prior to the Initial Agreement
Expiration Date, then the term of this Agreement shall expire on the Initial Agreement Expiration
Date.




ARTICLE 3 DESIGNATED SERVICES.




          3.01 General. Commencing on the Effective Date and continuing throughout the Term,
Vendor shall be responsible for providing to Customer the services, functions and responsibilities
described in this Agreement (including the services, functions, responsibilities and projects
described in the Statement of Work set forth as Exhibit 1) (the “Designated
Services”).




          3.02 Reports. Vendor shall provide to Customer, utilization and status reports
currently being produced by HMS prior to the Effective Date, set forth in Exhibit 8, and
such other reports necessary or appropriate to enable Customer to review and analyze the provision
of the Services and the accuracy of the Fees charged by Vendor.




ARTICLE 4 OUT-OF-SCOPE SERVICES.




          4.01 Out-of-Scope Services. During the Term and Termination Assistance Period,
Customer may request Vendor to perform an Out-of-Scope Service. Upon receipt of a written request
setting forth a description of the services from Customer, Vendor shall provide Customer with a
written proposal in respect of such Out-of-Scope Service, which proposal shall include:





	 	(1)	 	a description of the services, functions and responsibilities Vendor
anticipates performing in connection with such Out-of-Scope Service;
	 
	 	(2)	 	a schedule for commencing and completing such Out-of-Scope Service;
	 
	 	(3)	 	Vendor’s prospective fees for such Out-of-Scope Service, including a detailed
breakdown of such fees, based upon the hourly time and material rates set forth in
Exhibit 7, Hourly Rate Schedule;
	 
	 	(4)	 	when appropriate, a description of any new Software or Machines to be provided
by Vendor in connection with such Out-of-Scope Service;




8









 












	 	(5)	 	when appropriate, the Software and Machines and run-time requirements necessary
to develop and operate any new Software;
	 
	 	(6)	 	a description of the human resources necessary to provide the Out-of-Scope Service;
	 
	 	(7)	 	when appropriate, acceptance test criteria and procedures for any new
Software or any products, packages or services; and
	 
	 	(8)	 	the hourly time and material rates are outlined in Exhibit 7, Hourly Rate
Schedule:




Vendor shall not begin performing any Out-of-Scope Service until Customer Contract Managers has
provided Vendor with written authorization to perform such Out-of-Scope Service.




ARTICLE 5 CUSTOMER RESPONSIBILITIES.




          5.01 Customer Contract Manager. The Customer Contract Manager shall serve as
the primary Customer representative under this Agreement. The Customer Contract Manager shall (1) have overall responsibility for managing and coordinating the performance of Customer’s
obligations under this Agreement and (2) be authorized to act for and on behalf of Customer with
respect to all matters relating to this Agreement. Notwithstanding the foregoing, the Customer
Contract Manager may, upon notice to Vendor, delegate such of his or her responsibilities to other
Customer employees, as the Customer Contract Manager deems appropriate.




          5.02 Use of Customer Facilities. Upon Vendor’s request, Customer shall grant
Vendor access to and appropriate working space in the Customer Service Locations as reasonably
necessary for the sole and exclusive purpose of the Vendor providing the Services. Vendor
shall
provide to the Customer Contract Manager a list of the names of the personnel of Vendor or of

authorized Vendor subcontractors to be granted such access on the date hereof and as necessary
thereafter specifying the Customer Service Location(s) to which each such person is to be
admitted.
All such personnel of Vendor or authorized subcontractors shall bear valid identification to
enter
any Customer Service Location.




ARTICLE 6 SERVICE LEVELS.




          6.01 Designated Service Levels. Vendor shall perform the Designated Services in
accordance with the Designated Service Levels and in accordance with Exhibit 5.




          6.02 Out-of-Scope Service Levels. Vendor shall provide the Out-of-Scope Services
at least at the Out-of-Scope Service Levels applicable to such Out-of-Scope Services.




          6.03 Adjustment of Service Levels. The Contract Managers (1) shall review the Service
Levels for the preceding 12 months during the last calendar quarter of every Contract Year,
(2) with respect to any Service Level subject to periodic adjustment pursuant to an express
provision of this Agreement, if such Service Level is no longer appropriate because of an increase,
decrease or change to the needs of Customer or the scale or nature of the Services, shall negotiate
in good faith and reach mutual agreement on adjustment of the Service Levels for the subsequent
Contract Year and, (3) with respect to all other Service Levels, may by mutual agreement adjust the





9









 







Service Levels for the subsequent Contract Year. In addition, either Party may, at any time upon
notice to the other Party, initiate negotiations to review and, upon agreement by the Contract
Managers, adjust any Service Level which such Party in good faith believes is inappropriate at the
time.




          6.04 Root-Cause Analysis. In the event Vendor fails to achieve any Service Level,
Vendor shall, as soon as reasonably practicable, (1) perform a root-cause analysis to identify the
cause of such failure, (2) provide Customer with a report detailing the cause of, and procedure for
correcting, such failure, (3) upon Customer’s approval of such procedure, implement such procedure
and (4) provide Customer with assurance satisfactory to Customer that such failure will not recur
following the completion of the implementation of the procedure.




          6.05 Service Level Reporting. Vendor shall measure and report its performance against
the Service Levels and meet with Customer at least once every month during the Term, or more
frequently if requested by Customer, to review Customer’s actual performance against the Service
Levels and discuss any remedial action necessary or appropriate to correct any deficiencies.




          6.06 Measurement and Monitoring Tools. As of the Effective Date, Vendor shall use
existing measurement and monitoring Tools and procedures required to measure and report (as
contemplated by Section 7.05) Vendor’s performance of the Services against the applicable
Service Levels. Such measurement and monitoring and procedures shall (1) permit reporting at a
level of detail sufficient to verify compliance with the Service Levels and (2) be subject to audit
by Customer or Customer Agents. Vendor shall provide Customer and its designees with information
concerning access to such measurement and monitoring Tools and procedures upon request, for
inspection and verification purposes.




          6.07 Performance Credits. In the event of a failure to provide the Services in
accordance with the applicable Service Levels, Vendor shall incur the Performance Credits
identified in and according to the schedule set forth in Exhibit 5.




          6.08 Semi-Annual Status Meeting.



When requested by either party, the Designated Executives and Contract Managers of each Party shall
meet semi-annually to discuss the Services and the administration of this Agreement.




          6.09 Changes in Law. The Parties acknowledge that the business of Accordis and HMS is
conducted in a regulated environment subject to changes in Laws and the maintenance of Governmental
Approvals. If either Party is aware of or believes that such a change or reinterpretation of Law
has occurred, or that a Governmental Approval or a filing with a Governmental Authority is
required, must be sought or submitted anew or modified (collectively, a “Change in Law”), within a
reasonable period of time thereafter that Party shall provide written notice to the other Party of
such Change in Law, and the Parties shall commence negotiations regarding proposed amendments to
the Agreement or changes to the Services that will bring the Agreement into compliance with the Law
or Governmental Approvals, and each Party shall negotiate such potential changes in good faith in
an effort to obtain such compliance. If the parties cannot agree in good faith upon such
modifications to the Agreement or the Services, then (a) Customer shall initiate the Change Control
Procedures by submitting a Change Request setting forth the reasonable minimum number of changes to
the Services necessitated, in the good faith





10









 







assessment of Customer, by the Change in Law, and (b) Vendor shall respond to such Change Request
by setting forth, inter alia, its good faith assessment of the minimum changes to the Services
necessitated by such Change Request and reflecting a change in the fees hereunder based solely on
Vendor’s good faith assessment of the incremental work required of Vendor to implement such Change
Request. Customer may accept such proposal of Vendor, but if Customer declines to accept such
proposal, Customer may terminate this Agreement within 90 days.




ARTICLE 7 SERVICE LOCATIONS.




          7.01 Service Locations. The Services shall be provided to Customer from (1) the Service
Locations and (2) any other location for which Vendor has received Customer’s approval, such
approval shall not be reasonably withheld. Unless otherwise agreed by the Parties, if Customer
elects to move any Customer Service Location, then Customer shall bear any incremental expenses of
Vendor incurred as a result of such relocation; provided, however, that Vendor shall bear any
incremental expenses of Vendor incurred as a result of a relocation of the 401 Park Avenue South
Customer Service Location identified in Part B of Exhibit 3, Service Locations. Unless
otherwise agreed by the Parties, if Vendor elects to move any Vendor Service Location it may do so
at will, but Vendor shall bear any incremental expenses of Customer incurred as a result of such
relocation.




          7.02 Safety and Security Procedures. Vendor shall maintain and enforce its current
safety and security procedures at the Service Locations.




          7.03 Data Security. Vendor shall store all Customer Data in accordance with the Data
Safeguards. In the event Vendor intends to implement a change to the Data Safeguards, Vendor
shall notify Customer and, upon Customer’s approval, implement such change. In the event Vendor or
Vendor Agents discovers or is notified of a breach or potential breach of security relating to
Customer Data, Vendor shall immediately (1) notify the Customer Contract Managers of such breach or
potential breach and, (2) if the applicable Customer Data was in the possession of Vendor or Vendor
Agents at the time of such breach or potential breach, Vendor shall
(a) investigate and mitigate the effects of the breach or potential breach and (b) provide Customer
with assurance satisfactory to Customer that such breach or potential breach will not recur.




          7.04 No Viruses. Each Party covenants to the other Party that such Party shall use
commercially reasonable efforts to ensure that there are no Viruses or similar malicious coding in
any software provided or used by such Party in connection with the Services. Vendor agrees that, if
a Virus is found to have been introduced into such software from any source, Vendor shall use
commercially reasonable efforts to eliminate the Virus, at Vendor’s expense if such Virus was
introduced into its systems, intentionally or not, by Vendor or any of its employees or
subcontractors.




          7.05 Access to Premises. During the Term and any Termination Period, Vendor shall
provide the Customer Access Manager with reasonable access to the physical premises of the Vendor
Service Locations. The purposes for which such access may be requested shall include third party
tours of the premises for marketing of the services of Customer. Reasonable security and safety
requirements of Vendor will be observed by Customer at all times while on Vendor’s premises.





11









 








ARTICLE 8  VENDOR CONTRACT MANAGER AND SUBCONTRACTING.




          8.01 Vendor Contract Manager. The Vendor Contract Manager shall serve as the primary
Vendor representative under this Agreement. Vendor’s appointment of any Vendor Contract Manager
shall be subject to Customer’s prior approval. The Vendor Contract Manager shall (1) have overall
responsibility for managing and coordinating the performance of Vendor’s obligations under this
Agreement and (2) be authorized to act for and on behalf of Vendor with respect to all matters
relating to this Agreement. Vendor shall not replace or reassign the Vendor Contract Manager for
one year from the Effective Date, unless Customer consents to such reassignment or replacement or
such individual (i) voluntarily resigns from Vendor, (ii) is dismissed by Vendor for misconduct
(e.g., fraud, drug abuse, theft), (iii) fails to perform his or her duties and responsibilities
pursuant to this Agreement or (iv) dies or is unable to work due to his or her disability.
Notwithstanding the foregoing, the Vendor Contract Manager may, upon notice to Customer, delegate
such of his or her responsibilities to other Vendor employees, as the Vendor Contract Manager deems
appropriate, provided that the Vendor Contract Manager shall retain ultimate authority as Vendor
representative.




          8.02 Project Staff. Vendor shall appoint to the project staff individuals with
suitable training and skills to perform the Services.




          8.03 Subcontractors. With respect to subcontracting, Customer and Vendor
agree that:





	 	(1)	 	Vendor shall not subcontract any of its duties under this Agreement without the
prior written authorization of Customer, such consent not to be unreasonably withheld,
conditioned or delayed;
	 
	 	(2)	 	no subcontracting shall release Vendor from its responsibility for its
obligations under this Agreement. Vendor shall be responsible for the work and
activities of each of the Vendor Agents, including compliance with the terms of this
Agreement. Vendor shall be responsible for all payments to its subcontractors; and
	 
	 	(2)	 	Vendor shall promptly pay for all services, materials, equipment and labor used
by Vendor in providing the Services.
	 
	 	(3)	 	All subcontractors shall agree in writing to be subject to the
Confidentiality provisions of this Agreement.




12









 











ARTICLE 9 MANAGEMENT AND CONTROL.




          9.01 Contract Managers. Customer Contract Managers shall maintain a written log of
problems regarding the provision of the Services and Service Levels and Customer Contract Managers
shall send a copy of such written log to the Vendor Contract Manager each week. At the request of
either party, the Contract Managers shall meet in person or by video conference during the Term to
discuss (1) Customer’s current and anticipated needs for the Services and (2) disagreements
regarding the provision of the Services and Service Levels as described in the Customer Contract
Manager’s written log.




          9.02 Change Control Procedures. The Change Control Procedures are set forth in
Exhibit 10.




ARTICLE 10 PROPRIETARY RIGHTS.




          10.01 Third Party Software. Vendor represents and warrants to Customer that it has the
right and authority to Use the Third Party Software to perform the Services and otherwise to comply
with the terms and conditions of this Agreement. Vendor hereby grants to Customer, during the Term
and Termination Assistance Period, a non-exclusive, non-transferable, limited license to Use,
sublicense, and permit Customer Agents to Use, solely in connection providing goods or services to,
or purchasing goods or services from, Customer, the Third Party Software. Upon Customer’s request,
Vendor shall provide Customer with a list of all Third Party Software being used to provide the
Services as of the date of such request. Customer shall have the right to request additional Third
Party Software, it being understood that any such additional software would be provided at
Customer’s expense for fees and transaction costs of Vendor. Vendor will supply a cost estimate to
Vendor Contract Manager for approval prior to any new Third Party Software is provided.




ARTICLE 11 DATA.




          11.01 Ownership of Customer Data. All Customer Data is, or will be, and shall remain
the property of Customer. Without Customer’s approval (in its sole discretion), the Customer Data
shall not (1) be used by Vendor or Vendor Agents other than in connection with providing the
Services, (2) be disclosed, sold, assigned, leased or otherwise provided to third parties by Vendor
or Vendor Agents or (3) be commercially exploited by or on behalf of Vendor or Vendor Agents.
Vendor hereby irrevocably assigns, transfers and conveys, and shall cause Vendor Agents to assign,
transfer and convey, to Customer without further consideration all of its and their right, title
and interest in and to the Customer Data. Upon request by Customer, Vendor shall execute and
deliver, and shall cause Vendor Agents to execute and deliver, any financing statements or other
documents that may be necessary or desirable under any Law to preserve, or enable Customer to
enforce, its rights with respect to the Customer Data.




          11.02 Return of Data. Upon Customer’s request at any time during the Term, and upon
expiration or termination of this Agreement, Vendor shall (1) promptly return to Customer, all or
any part of Customer Data and (2) erase or destroy all or any part of Customer Data in Vendor’s
possession or under its control, in each case, to the extent requested by Customer.





13









 








ARTICLE 12 LIMITATION OF LIABILITY




          12.01 Disclaimer. UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS AFFILIATES, LICENSORS
OR SUBCONTRACTORS BE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
OTHER INDIRECT DAMAGES, INCLUDING (1) SUCH DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF DATA, (2)
LOSS OF PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR ANY OTHER
OBLIGATIONS OF EITHER PARTY RELATING TO THIS AGREEMENT, IN EACH CASE WHETHER OR NOT SUCH PARTY, ITS
AFFILIATES, LICENSORS OR SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.




          12.02 Limitation. Vendor’s aggregate liability, whether in contract, tort, or
otherwise, arising out of or in connection with the Services or this Agreement at any time shall
not exceed the amount of Designated Fees paid or payable to Vendor for the then-current twelve (12)
months of Services hereunder. Customer’s aggregate liability, whether in contract, tort, or
otherwise, arising out of or in connect with this Agreement shall not exceed the amount due and
payable hereunder for Services actually rendered.




ARTICLE 13 DISASTER RECOVERY AND FORCE MAJEURE EVENTS.




          13.01 Disaster Recovery Plan. At Vendor’s expense, Vendor shall maintain a third-party
disaster recovery agreement (the “DRP”) with a service provider (the “Disaster Recovery
Vendor”) that encompasses maintenance of a backup data center for emergency replacement of the
Services. As part of the Services hereunder, Vendor shall maintain the DRP in force, shall
supervise the preparations of the Disaster Recovery Vendor pursuant to the DRP, and shall perform
the Services using the Disaster Recovery Vendor and its data center and other facilities
immediately upon any occurrence prompting such use. Vendor shall notify the Customer Contract
Managers immediately upon the occurrence of a disaster or Force Majeure Event that prevents or will
prevent a Vendor Service Location from being available for more than 24 hours. In such event, upon
the reasonable request of Customer, Vendor shall implement the disaster recovery transition
procedures set forth in Exhibit 11.




          13.02 Force Majeure. If and to the extent that a Party’s performance of any of its
obligations pursuant to this Agreement is prevented, hindered or delayed by fire, flood,
earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders,
rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party
(each, a “Force Majeure Event”), and such non-performance, hindrance or delay could not
have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party
shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations
affected by the Force Majeure Event for as long as such Force Majeure Event continues and such
Party continues to use its best efforts to recommence performance whenever and to whatever extent
possible without delay, including through the use of alternate sources, workaround plans or other
means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall
immediately notify the other Party of the occurrence of the Force Majeure Event and describe in
reasonable





14









 







detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not
excuse, limit or otherwise affect Vendor’s obligation to use best efforts to provide normal
recovery procedures or other obligations described in Section 13.01 or Exhibit 11.




          13.03 Alternate Source.





	 	(1)	 	In the event of a disaster or a Force Majeure Event, Customer may
procure the Services from an alternate source.
	 
	 	(2)	 	Customer shall consider in good faith any proposal made by Vendor
regarding an alternate source provider, provided that the alternate source provider
proposed by Vendor is capable of providing the Services at the Service Levels.
	 
	 	(3)	 	If a disaster or Force Majeure Event continues to prevent, hinder or delay
the performance of the Services by Vendor for more than 60 days either Party may
terminate this Agreement without regard to Section 22.02, as of the date
specified by either Party in its termination notice to the other Party.





          13.04 No Payment for Unperformed Services. Except as provided in
Section 13.02, nothing in this Article shall limit Customer’s obligation to pay any Fees;
provided, however, that if Vendor fails to provide the Services in accordance with this Agreement
due to the occurrence of a Force Majeure Event or disaster the Fees shall be adjusted in a manner
such that Customer is not responsible for the payment of any Fees for those Services that Vendor
fails to provide.




          13.05. Insurance. During the Term and Termination Period, Vendor shall at all
times keep and maintain at least the following insurance coverages and limits of liability:




          (1) Commercial General Liability including coverage for (a) premises/operations, (b)
independent contractors, (c) products/completed operations, (d) personal and advertising injury,
(e) contractual liability, and (f) explosion, collapse and underground hazards, with combined
single limit of not less than $1,000,000 each occurrence or its equivalent;




          (2) Worker’s Compensation in amounts required by applicable law and Employer’s
Liability with a limit of at least $1,000,000 each accident;




          (3) Automobile Liability including coverage for owned/leased, non-owned or hired automobiles
with combined single limit of not less than $1,000,000 each accident;




          (4) General Commercial Liability for death or personal injury and damage to tangible personal
property with limits of not less than $1,000,000 per occurrence; and




          (5) Errors and Omissions Coverage with a limit of at least $1,000,000 each occurrence.




          Such insurance coverages or limits of liability shall not be changed unless at least thirty
(30) days’ notice is given to Customer. If requested by Customer, Vendor shall deliver a
Certificate of Insurance evidencing such coverages and limits of liability.




15









 








ARTICLE 14 PAYMENTS AND INVOICING.




          14.01 General. In consideration of Vendor providing the Designated Services, Customer
shall pay to Vendor the Designated Fees in accordance with Section 14.02. Except as expressly set
forth in this Agreement, there shall be no charges or fees due from Customer, or payable to Vendor,
in respect of Vendor’s performance of its obligations pursuant to this Agreement.




          14.02 Designated Fees. Vendor shall submit invoices to Customer for the Designated
Services monthly in arrears on the terms of net 30 days.




          14.03 Time of Payment. Any sum due to Vendor pursuant to this Agreement for Services
other than Designated Services, unless payment terms are otherwise specified expressly herein,
shall be due and payable 30 days after receipt by Customer of an invoice from Vendor following
performance of such Services.




          14.04 Adjustments to Fees. Except for changes to the Fees due to the inclusion of
Out-of-Scope Services, exceeding maximums in Exhibit 6, In Scope Maximums, exceeding the
number of hours in Exhibit 1, Statement Of Work, Section XIV and XV, Performance Credits
for Customer’s benefit pursuant to Exhibit 5, Service Levels and Performance Credits or
other Changes implemented through the Change Control Process, there shall be no adjustments to the
Fees.




          14.05 Unused Credits. Any unused credits against future payments owed to either Party
by the other pursuant to this Agreement shall be paid to the applicable Party within 30 days of the
earlier of the expiration or termination of this Agreement.




          14.06 Late Payments. Any amount that is payable to Vendor pursuant to this Agreement
and not paid pursuant to the terms of this Agreement shall bear interest from the due date at the
lesser of the rate of one (1.0%) percent per month or the maximum permitted by law. All costs of
collection, including reasonable attorney’s fees, shall be paid by Customer.




ARTICLE 15 AUDITS.




          15.01 Services. Upon reasonable advance notice from Customer, Vendor and Vendor Agents
shall provide Customer, Customer Agents, and any of Customer’s regulators with access to and any
assistance that they may require with respect to the Service Locations and the Systems for the
purpose of performing audits or inspections of the Services and the business of Customer relating
to the Services. Such audits may occur no more often than once in any six (6) month period, in
which case Customer shall pay for any such additional audits at the same rates applicable to Out of
Scope Services under this Agreement.




          15.02 Record Retention. Vendor shall retain records and supporting documentation
sufficient to document the Services and the charges paid or payable by Customer under this
Agreement in accordance with Customer’s then-current record retention procedures, as in effect from
time to time.




          15.03 Facilities. Vendor shall provide to Customer and Customer Agents, on
Vendor’s premises (or, if the audit is being performed of a Vendor Agent, the Vendor Agent’s
premises if necessary), space, office furnishings (including lockable cabinets), telephone
and




16









 







facsimile services, utilities and office-related equipment and duplicating services as Customer or
such Customer Agents may reasonably require to perform the audits described in this Article.




ARTICLE 16 CONFIDENTIALITY.




          16.01 General Obligations. Parties agree that all Confidential Information shall be
held in confidence by the recipient to the same extent and in at least the same manner as the
recipient protects its own confidential information. Neither Customer nor Vendor shall disclose,
publish, release, transfer or otherwise make available Confidential Information of, or obtained
from, the other in any form to, or for the use or benefit of, any person or entity without the
disclosing Party’s consent. Each of Customer and Vendor shall, however, be permitted to disclose
relevant aspects of the other’s Confidential Information to its officers, directors, agents,
professional advisors, contractors subcontractors and employees and to the officers, directors,
agents, professional advisors, contractors, subcontractors and employees of its Affiliates, to the
extent such disclosure is not restricted under any Consents or any Governmental Approvals and only
to the extent that such disclosure is reasonably necessary for the performance of its duties and
obligations or the determination, preservation or exercise of its rights and remedies under this
Agreement; provided, however, that the recipient shall take all reasonable measures to ensure that
Confidential Information of the disclosing Party is not disclosed or duplicated in contravention of
the provisions of this Agreement by such officers, directors, agents, professional advisors,
contractors, subcontractors and employees. The obligations in this Section shall not restrict any
disclosure pursuant to any Law (provided that the recipient shall give prompt notice to the
disclosing Party of such order).




          16.02 Unauthorized Acts. Without limiting a Party’s rights in respect of a breach of
this Article, each Party shall:





	 	(1)	 	promptly notify the other Party of any unauthorized possession, use or
knowledge, or attempt thereof, of the other Party’s Confidential Information by any
person or entity that may become known to such Party;
	 
	 	(2)	 	promptly furnish to the other Party full details of the unauthorized
possession, use or knowledge, or attempt thereof, and assist the other Party in
investigating or preventing the recurrence of any unauthorized possession, use or
knowledge, or attempt thereof, of Confidential Information;
	 
	 	(3)	 	cooperate with the other Party in any litigation and investigation against
third parties deemed necessary by the other Party to protect its proprietary rights;
and
	 
	 	(4)	 	promptly use its best efforts to prevent a recurrence of any such
unauthorized possession, use or knowledge, or attempt thereof, of Confidential
Information.




Each Party shall bear the cost it incurs as a result of compliance with this Section.





17









 








ARTICLE 17 REPRESENTATIONS AND WARRANTIES.




          17.01 By Customer. Customer represents and warrants to Vendor that:





	 	(1)	 	Customer is a corporation validly existing and in good standing under the Laws
of Delaware;
	 
	 	(2)	 	Customer has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement;
	 
	 	(3)	 	the execution, delivery and performance of this Agreement by Customer (a) has
been duly authorized by Customer and (b) will not conflict with, result in a breach of,
or constitute a default under, any other agreement to which Customer is a party or by
which Customer is bound.





          17.02 By Vendor. Vendor represents and warrants to Customer that:





	 	(1)	 	Vendor is a corporation validly existing and in good standing under the Laws of
New York;
	 
	 	(2)	 	Vendor has all requisite power and authority to execute, deliver and perform
its obligations under this Agreement;
	 
	 	(3)	 	the execution, delivery and performance of this Agreement by Vendor (a) has been
duly authorized by Vendor, (b) will not conflict with, result in a breach of, or
constitute a default under, any other agreement to which Vendor is a party or by which
Vendor is bound and (c) does not require any Customer Consents or Vendor Consents that
have not already been obtained;
	 
	 	(4)	 	Vendor is duly licensed, authorized or qualified to do business and is in good
standing in every jurisdiction in which a license, authorization or qualification is
required for the ownership or leasing of its assets or the transaction of business of
the character transacted by it, except where the failure to be so licensed, authorized
or qualified would not have a material adverse effect on Vendor’s ability to fulfill its
obligations under this Agreement;
	 
	 	(5)	 	Vendor is in compliance with all Laws applicable to Vendor and has obtained all
applicable permits and licenses required of Vendor in connection with its obligations
under this Agreement;
	 
	 	(6)	 	there is no outstanding litigation, arbitrated matter or other dispute or
administrative proceeding to which Vendor is a party which, if decided unfavorably to
Vendor, would reasonably be expected to have a material adverse effect on Vendor’s
ability to fulfill its obligations under this Agreement;
	 
	 	(7)	 	the provision of the Designated Services to Customer under this Agreement,
together with the use of the other information technology-related resources and
personnel of Accordis and HRM immediately following the Closing under the SPA,




18









 






	 	 	 	shall suffice to provide all technology-related resources necessary for the
operation of the businesses of Accordis and HRM as conducted during the six-month
period prior to the Effective Date;
	 
	 	(8)	 	the entry into this Agreement and the consummation of the Closing under the
SPA and the transactions contemplated thereby shall not require any change to the
information technology practices of Accordis and HRM during the six-month period prior
to the Effective Date either under their express terms hereof or in order to render
the representation in the preceding subsection valid;
	 
	 	(9)	 	None of the Vendor Machines contain Viruses and, consistent with reasonable
best practices in information technology, Vendor operates automated searches for and
firewalls to prevent the introduction of Viruses in the Vendor Machines; and
	 
	 	(10)	 	The Vendor Machines and Vendor’s related systems have not been subject to any
Denial-of-Service attack, successful physical or logical intrusion by unauthorized
persons, or other breach of security in the previous year, and Vendor has established
physical and logical security for the Vendor Machines and related systems, and backup
procedures and facilities for the same, consistent with reasonable best practices in
information technology. All security audits, security analyses and intentional
security probes and attacks relating to the Vendor Machines and related systems, and
all reports relating thereto, have previously been disclosed to Customer.





          17.03 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER CUSTOMER
NOR VENDOR MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THE SYSTEMS AND
EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
NOTHING IN THIS SECTION 17.03 SHALL BE DEEMED TO LIMIT OR DISCLAIM ANY REPRESENTATION OR WARRANTY
IN THE SPA OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREUNDER (APART FROM THIS AGREEMENT).




ARTICLE 18 ADDITIONAL COVENANTS.




          18.01 By Customer. Customer covenants and agrees with Vendor that, during the Term and
the Termination Assistance Period that Customer shall comply with all Laws applicable to Customer
and, except as otherwise provided in this Agreement, shall obtain all applicable permits and
licenses required of Customer, to the extent required to comply with its obligations under this
Agreement.




          18.02 By Vendor. Vendor covenants and agrees with Customer that, during the Term and
the Termination Assistance Period:





19












 






	 	(1)	 	Vendor shall comply with all Laws applicable to Vendor and shall obtain
all applicable permits and licenses required of Vendor in connection with its
obligations under this Agreement;
	 
	 	(2)	 	Vendor shall comply with the Business Associates Agreement set forth in
Exhibit 12.





ARTICLE 19 DISPUTE RESOLUTION.




          19.01 Contract Managers. Any dispute arising under this Agreement shall be considered
in person or by telephone by the Contract Managers within seven business days after receipt of a
notice from either Party specifying the nature of the dispute; provided, however, that a dispute
relating to Section 11.02, Article 17 or Article 23 shall not be subject to
this Section. If for any reason, including failure to meet or communicate, the Contract Managers
have not resolved such dispute to the satisfaction of either Party within seven business days, then
either of the Customer Contract Managers or the Vendor Contract Manager may immediately refer such
dispute to the Designated Executives. The Designated Executives shall make a good faith attempt to
consider and resolve such dispute in person or by telephone within fifteen business days of the
date such dispute is referred to them. If for any reason the Designated Executives have not
resolved such dispute within fifteen business days of the date such dispute was referred to it,
then either Party may pursue its rights and remedies under Section 19.02.




          19.02 Arbitration. Any dispute not settled pursuant Section 19.01 shall be
finally and exclusively settled by binding arbitration and, unless otherwise agreed by the
Parties, the following procedure:





	 	(1)	 	the arbitration shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (“AAA”) and judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof;
	 
	 	(2)	 	the arbitration shall be conducted in New York, New York;
	 
	 	(3)	 	either Party may, without inconsistency with this Agreement, seek from a court
any interim or provisional relief that may be necessary to protect the rights or
property of that Party pending the establishment of the arbitral tribunal;
	 
	 	(4)	 	the arbitrator shall have a background in, and knowledge of, the information
technology services industry and shall be an appropriate person based on the nature of
the dispute; and
	 
	 	(5)	 	the Parties shall appoint a single arbitrator who shall perform the
arbitration; provided that, if the Parties cannot agree on that single arbitrator
within thirty (30) days of the request of either Party, then the single arbitrator
shall be appointed by the President of the AAA.





20









 




Notwithstanding the foregoing, if disputes are being arbitrated under the SPA, any disputes under
this Agreement shall be arbitrated in that same proceeding under the arbitration provisions set
forth in the SPA.




ARTICLE 20 TERMINATION.




          20.01 Termination for Cause.





	 	(1)	 	If Vendor materially defaults in the performance of any of its material
obligations under this Agreement (except as provided in Section 19.02), and
does not cure such default within thirty (30) days after receipt of a notice of
default from Customer, then Customer may, by giving notice to Vendor, terminate this
Agreement, in whole or in part, as of the termination date specified in the notice;
provided that, Customer and Vendor agree that, if Vendor fails to provide any Services
under this Agreement, such failure shall constitute a disaster for the purposes of
Article 13 and the Parties shall follow the process for identifying an Alternate
Source set forth under Section 13.03 hereof.
	 
	 	(2)	 	If Customer fails to make payments due to Vendor under this Agreement and
does not cure such default within thirty (30) days after receipt of a notice of
default from Vendor, then Vendor may, by giving notice to Customer, terminate this
Agreement in whole as of the termination date specified in the notice.





          20.02 Termination for Insolvency. This Agreement may be terminated by either Party,
upon notice to the other Party, (i) if such Party becomes insolvent, (ii) upon the institution of
insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of
its debts, (iii) upon such Party’s making a general assignment for the benefit of credits, or (iv)
upon such Party’s dissolution or ceasing to conduct business in the normal course.




          20.03 No Cross-Defaults. No breach of the SPA or the other transactions contemplated
thereunder by one Party shall be deemed a breach hereof or a basis for the non-breaching Party to
terminate this Agreement or the transactions contemplated hereunder, and vice versa.




          20.04 Termination by Customer. At any time after the first twenty-four months of
the Initial Term, Customer may elect to terminate this Agreement by providing notice at least
six months prior to such termination, such termination to be effective no sooner than thirty
months after the commencement of the Initial Term.




ARTICLE 21 TERMINATION ASSISTANCE.



Upon Customer’s request, Vendor shall, during the Termination Assistance Period, provide the
Termination Assistance Services. Customer shall pay to Vendor the following fees for the
Termination Assistances Services: (1) with respect to the Designated Services, the Designated Fees,
(2) with respect to Out-of-Scope Services, an amount calculated pursuant to Exhibit 7, Hourly
Rate Schedule for such services and (3) any incremental, out-of-pocket expenses incurred




21









 




by Vendor in connection with the Termination Assistance Services and approved in advance by
Customer. The quality and level of performance of the Services shall not be degraded during the
Termination Assistance Period. After the expiration of the Termination Assistance Period, Vendor
shall (1) answer questions from Customer regarding the Services on an “as needed” basis at
Vendor’s then-standard billing rates and (2) promptly deliver to Customer any remaining
Customer-owned reports and documentation still in Vendor’s possession.




ARTICLE 22 INDEMNITIES.




          22.01 Indemnity by Customer. Customer shall indemnify Vendor from, and
defend and hold Vendor harmless from and against, any Losses suffered, incurred or
sustained by Vendor or to which Vendor becomes subject, resulting from, arising out of or relating to any claim:





	 	(1)	 	arising from the Customer Data, provided that such claim is not due to
Vendor’s breach of Law or any duty hereunder;
	 
	 	(2)	 	relating to any amounts, including taxes, interest and penalties,
assessed against Vendor which are the obligation of Customer;
	 
	 	(3)	 	relating to personal injury (including death) or third party property
loss or damage resulting from Customer’s or Customers Agents’ acts or omissions;
	 
	 	(4)	 	relating to a breach of Articles 16, 17 or 18.




Customer shall indemnify Vendor from any costs and expenses, including reasonable
attorney fees, incurred in connection with the enforcement of this Section.




          22.02 Indemnity by Vendor. Vendor shall indemnify Customer from, and defend and hold Customer harmless from and against, any Losses suffered, incurred or sustained by
Customer or to which Customer becomes subject, resulting from, arising out of or relating to any claim:





	 	(1)	 	arising from the Customer Data, provided that such claim is due to
Vendor’s breach of Law or a duty hereunder;
	 
	 	(2)	 	relating to personal injury (including death) or third party property
loss or damage resulting from Vendor’s or Vendor Agents’ acts or omissions;
	 
	 	(3)	 	relating to any amounts, including taxes, interest and penalties,
assessed against Customer which are the obligation of Vendor;
	 
	 	(4)	 	relating to a breach of Articles 10, 16, 17 or 18 of the
Business Associates Agreement set forth in Exhibit 12.





22









 




Vendor shall indemnify Customer from any costs and expenses, including reasonable attorney fees,
incurred in connection with the enforcement of this Section.




          22.03 Indemnification Procedures. If any third party claim is commenced against a
Party entitled to indemnification under Section 25.01 or Section 25.02 (as applicable, the
“Indemnified Party”), notice thereof shall be given to the Party that is obligated to
provide indemnification (as applicable, the “Indemnifying Party”) as promptly as
practicable. If, after such notice, the Indemnifying Party acknowledges that this Agreement applies
with respect to such claim, then the Indemnifying Party shall be entitled, if it so elects, in a
notice promptly delivered to the Indemnified Party, but in no event less than 10 days prior to the
date on which a response to such claim is due, to immediately take control of the defense and
investigation of such claim and to employ and engage attorneys reasonably acceptable to the
Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense.
The Indemnified Party shall cooperate, at the cost of the Indemnifying Party, in all reasonable
respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of
such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at
its own cost and expense, participate, through its attorneys or otherwise, in such investigation,
trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that
involves a remedy other than the payment of money by the Indemnifying Party shall be entered into
without the consent of the Indemnified Party. After notice by the Indemnifying Party to the
Indemnified Party of its election to assume full control of the defense of any such claim, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred
thereafter by such Indemnified Party in connection with the defense of that claim. If the
Indemnifying Party does not assume full control over the defense of a claim subject to such defense
as provided in this Section, the Indemnifying Party may participate in such defense, at its sole
cost and expense, and the Indemnified Party shall have the right to defend the claim in such manner
as it may deem appropriate, at the cost and expense of the Indemnifying Party.




          22.04 SPA Indemnification. Notwithstanding anything to the contrary in this
Agreement, if any Damages (as defined in the SPA) are subject to indemnification rights of Customer
or Vendor under the SPA, then those Damages shall not be subject to the indemnification rights of
Customer or Vendor set forth in this Article 22.




ARTICLE 23 MISCELLANEOUS PROVISIONS.




          23.01 Assignment. Customer shall not, without the consent of Vendor, assign this
Agreement or any amounts payable pursuant to this Agreement, except that Customer may assign this
Agreement, in whole or in part, to an Affiliate or another entity or business unit of Customer or
pursuant to a reorganization or Change in Control of Customer without such consent, so long as such
assignment is effected in connection with a transfer of the Accordis business. Vendor shall not,
without the consent of Customer, assign this Agreement, except as provided in Section 8.12 of the
SPA. The consent of a Party to any assignment of this Agreement shall not constitute such Party’s
consent to further assignment. This Agreement shall be binding on the Parties and their respective
successors and permitted assigns. Any assignment in contravention of this subsection shall be void.




23









 





          23.02 Notices. All notices and other communications under this Agreement shall be in writing
and shall be deemed given when delivered personally, mailed by certified mail, return receipt
requested, or by overnight mail, to the parties (and shall also be transmitted by facsimile to the
Persons receiving copies thereof) at the following addresses (or to such other address as a party
may have specified by notice given to the other party pursuant to this provision):



If to Vendor, to:



HMS Holdings Corp.

401 Park Avenue South

New York, NY 10016

Attention: Robert M. Holster, Chief Executive Officer

Facsimile: (212) 557-5973



With a copy to:



Wilmer Cutler Pickering Hale and Dorr LLP

399 Park Avenue

New York, NY 10022

Attention: Robert A Schwed, Esq.

Facsimile: (212) 230-8888



If to Customer, to:



Accordis Holding Corp.

25 Duncan Lane

Skillman, NJ 08558

Attention: Hamilton F. Potter III, Chief Executive Officer

Facsimile: (609) 466-8687



With a copy to:



Covington & Burling

1330 Avenue of the Americas

New York, NY 10019

Attention: Stephen A. Infante, Esq.

Facsimile: (212) 841-1010




          23.03 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which taken together
shall constitute one single agreement between the Parties.




          23.04 Relationship. The Parties intend to create an independent contractor relationship
and nothing contained in this Agreement shall be construed to make either Customer or Vendor
partners, joint venturers, principals, agents or employees of the other. No officer, director,
employee, agent, Affiliate or contractor retained by Vendor to perform work on Customer’s behalf




24









 







under this Agreement shall be deemed to be an employee, agent or contractor of Customer. Neither
Party shall have any right, power or authority, express or implied, to bind the other.




          23.05 Consents, Approvals and Requests. Except as specifically set forth in this
Agreement, all consents and approvals to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable requests under this
Agreement.




          23.06 Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to Law, then the remaining provisions of this Agreement, if capable of
substantial performance, shall remain in full force and effect.




          23.07 Waivers. No delay or omission by either Party to exercise any right or power it
has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver
by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding
breach or any other covenant. All waivers must be signed by the Party waiving its rights.




          23.08 Remedies Cumulative. No right or remedy herein conferred upon or reserved to
either Party is intended to be exclusive of any other right or remedy, and each and every right and
remedy shall be cumulative and in addition to any other right or remedy under this Agreement, or
under applicable law, whether now or hereafter existing.




          23.09 Entire Agreement. This Agreement and the Exhibits to this Agreement represent the
entire agreement between the Parties with respect to its subject matter, and there are no other
representations, understandings or agreements between the Parties relative to such subject matter.




          23.10 Amendments. No amendment to, or change, waiver or discharge of, any
provision of this Agreement shall be valid unless in writing and signed by an authorized
representative of each of the Parties.




          23.11 Survival. The terms of Articles 11, 12, 14, 15, 16, 19, 20, 21, 22 and 23
shall survive the expiration or termination of this Agreement.




          23.12 Third Party Beneficiaries. Each Party agrees that this Agreement shall not
benefit, or create any right or cause of action in or on behalf of, any person or entity other than
the Vendor and the Customer. Customer shall be entitled to enforce this Agreement on behalf of
Customer and shall have the right to pursue any right or remedy of the Customer arising hereunder
with respect to the delivery of Services or otherwise.




          23.13 Governing Law. This Agreement and the rights and obligations of the Parties
under this Agreement shall be governed by and construed in accordance with the Laws of New York,
without giving effect to the principles thereof relating to the conflicts of Laws.




          23.14 Sole and Exclusive Venue. Each Party irrevocably agrees that Section 8.6 of the
SPA shall be effective under this Agreement as if set forth in full herein.




          23.15 Waiver of Jury Trial. Each Party hereby waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect to any litigation directly
or indirectly arising out of, under or in connection with this Agreement, the transactions
contemplated by this Agreement or disputes relating hereto. Each Party (a) certifies that no




25









 




representative, agent or attorney of any other Party has represented, expressly or otherwise, that
such other Party would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it and the other Party hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certifications in this Section.




          23.16 Covenant of Further Assurances. Customer and Vendor covenant and agree that,
subsequent to the execution and delivery of this Agreement and, without any additional
consideration, each of Customer and Vendor shall execute and deliver any further legal instruments
and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.




          23.17 Negotiated Terms. The Parties agree that the terms and conditions of this
Agreement are the result of negotiations between the Parties and that this Agreement shall not be
construed in favor of or against any Party by reason of the extent to which any Party or its
professional advisors participated in the preparation of this Agreement.




          23.18 Export. Customer and Vendor shall not knowingly export or re-export any personal
computer system, part, technical data or sub-elements under this Agreement, directly or indirectly,
to any destinations prohibited by the government of the U.S.A. The term “technical data” in this
context, means such data as is defined as technical data by applicable export regulations in effect
in the U.S.A.




          23.19 Conflict of Interest. Vendor shall not pay any salaries, commissions, fees or
make any payments or rebates to any employee of Customer, or to any designee of such employee, or
favor any employee of Customer, or any designee of such employee, with gifts or entertainment of
significant cost or value or with services or goods sold at less than full market value. Vendor
agrees that its obligation to Customer under this Section shall also be binding upon Vendor
Agents. Vendor further agrees to insert the provisions of this Section in each contract with a
Vendor Agent.




          23.20 Publicity. Each Party shall (1) submit to the other all advertising, written
sales promotions, press releases and other publicity matters relating to this Agreement in which
the other Party’s name or any its trademarks or service marks is mentioned or which contains
language from which the connection of said name or trademark or service mark may be inferred or
implied and (2) not publish or use such advertising, sales promotions, press releases or publicity
matters without the other Party’s consent.




26









 





*      *      *      *




          IN WITNESS WHEREOF, each of Vendor and Customer has caused this Services Agreement to be
signed and delivered by its duly authorized representative.




	 	 	 	 	 
	 	HMS BUSINESS SERVICES INC.

 	 
	 	By:  	/s/
HMS Business Services Inc. 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ACCORDIS HOLDING CORP.

 	 
	 	By:  	/s/
Accordis Holding Corp.	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




27









 





EXHIBIT 1




STATEMENT OF WORK




I. Machines





	 	a.	 	Vendor shall provide an appropriate mainframe processor(s) that
supports the service levels outlined in Exhibit 5.
	 
	 	b.	 	Vendor shall provide an appropriate level of DASD and Tape to support
the Service Levels outlined in Exhibit 5.
	 
	 	c.	 	Customer shall be responsible for obtaining mainframe printing and
mailing services consistent with support provided prior to the Effective Date.





II. Software





	 	a.	 	Vendor shall provide the Third Party Software set forth in Exhibit 2.
	 
	 	b.	 	Additional Third Party Software may be requested by Customer.
Vendor will pass through cost to Customer for any additional Third Party Software
specifically requested by Customer. Vendor will follow steps outlined in
Article 4 for Out-Of-Services Services to implement requested Third Party
Software.
	 
	 	c.	 	Vendor will maintain six (6) CICS AccessLine regions (Branch, West,
Data, HSW, QA and Test). Vendor will follow steps outlined in Article 4 for Out-Of-Scope Services to create new CICS regions.
	 
	 	d.	 	Vendor will schedule and run Customer’s Standard Processing not less
frequently than as being run prior to the Effective Date.
	 
	 	e.	 	Any new systems, new development efforts, or processing outside
AccessLine and Standard Processing that is not consistent with the support and Machine processing
prior to the Effective Date will be considered Out-Of-Scope Services and will be
handled as such under Article 4, Out of Scope Services.





III. Tape Management, Library Operations and Data Services



Tape and cartridges, storage and backups will be provided by Vendor as follows:




28









 






	 	a.	 	Copies of critical files (up to a maximum of 100) will be stored offsite at Iron Mountain located at 203 Moonachie Road, Moonachie, NJ 07074.
	 
	 	b.	 	Vendor has implementing a offsite backup solution utilizing a EMC
Centera DASD backup machine.
	 
	 	c.	 	Mainframe incremental and routine backup and reorganization of files
will be performed in accordance with Customer current backup schedule, which
consists of incremental backup and weekly full volume backup. Backup
copies will be stored off-site.





IV. Network Connectivity.





	 	a.	 	Vendor shall maintain and manage the current Customer network
connectivity in accordance with the network diagram attached to this Exhibit 1 as Appendix A.
	 
	 	b.	 	Additional lines/connections will be handled as Out of Scope
Services pursuant to Article 4.





V. System Support Services





	 	a.	 	Vendor shall provide the following System Support Services:






	 	•	 	Monitoring of all Machines and Third Party Software
on a daily basis for potential problems.
	 
	 	•	 	Providing timely response to problems and questions
reported by Customer.
	 
	 	•	 	Performing ongoing capacity planning and
performance monitoring activities.
	 
	 	•	 	Making recommendations for short term and long term
improved system performance.
	 
	 	•	 	Trouble Shooting and implementing solutions
to Third Party Software problems.
	 
	 	•	 	Coordinating problem diagnosis and providing
correction in the event application problems or Viruses occur, at
Customer’s




29









 






	 	 	 	expense if such Virus was introduced into its systems, intentionally
or not, by Vendor or any of its employees or subcontractors.
	 
	 	•	 	Performing RACF security administration for
TSO sign on and other administrations consistent with those
performed prior to the Effective Date.
	 
	 	•	 	Performing disaster recovery transition
procedures set forth in Exhibit 11.
	 
	 	•	 	Performing system database administration function.





VI. Operations Services





	 	a.	 	Vendor shall perform the following Operations Services:






	 	•	 	Monitoring of systems consoles during operational hours.
	 
	 	•	 	Performing checks to ensure Machines are operating optimally.
	 
	 	•	 	Monitoring of all jobs and applications to ensure
that they are running properly based upon supplied documentation.
	 
	 	•	 	Responding to system messages and request for resources as required.
	 
	 	•	 	Coordinating system startups and shutdowns with
Customer Contract Managers.
	 
	 	•	 	Documenting cause and nature of both scheduled
and unscheduled outages.
	 
	 	•	 	Maintaining the Customer tape inventory stored at
the Vendor Service Location and offsite at Iron Mountain.
	 
	 	•	 	Reporting Machines malfunctions to responsible parties.
	 
	 	•	 	Responding to system requests for tape/cartridge mounts.
	 
	 	•	 	Providing timely process on business requested and weekly backups.
	 
	 	•	 	Performing job scheduling.
	 
	 	•	 	Providing data center operations support
availability 24 hours a day seven days a week on mainframe/communications
availability and related software issues.





VII. Reporting





	 	a.	 	In addition to providing the Reports listed in Exhibit 8,
Vendor shall perform the following reporting services:




30









 












	 	•	 	Documenting cause and nature of both scheduled and unscheduled outages.
	 
	 	•	 	Provide job accounting reporting.





VIII. Lotus Notes Technical Change Control Procedures





	 	a.	 	Vendor shall manage any change to the technical configuration
through the Lotus Notes Technical Change Control Procedures set forth in the
Mainframe Change Control Database provided to Vendor with instructions about
the database and using the database. If such change constitutes a Change,
Vendor shall also manage such Change through the Change Control Process set
forth in Exhibit 10.





IX. Source Data Management





Vendor will be responsible for data logging and tracking using SDM DB for Customer
physical data input, in a manner consistent with that performed prior to the
Effective Date.



X. EDI





Customer is responsible for establishing all EDI set ups, as they pertain to Customer’s business, with any Vendor assistance to be treated and charged as an
Out of Scope Service under Article 4.


Vendor is responsible for maintenance, execution, logging and tracking of EDI
transmissions performed by Vendor.


Customer is responsible for all EDI application programming, as it pertains to
Customer’s business.



XI. Help Desk





Vendor will supply backup security administration for user systems and a user help
desk for reporting system problems.


All calls will be tracked and responded to in a manner consistent with the support
provided prior to the Effective Date.


Vendor will reset RACF security passwords promptly upon request and in any event
within 24 hours of any request.



XII. DSS Support Services





	 	a.	 	Vendor is responsible for the managing and maintaining the servers
listed in the network diagram attached to Exhibit 1 as Appendix A, and for replacing the servers if and as required to perform the Services.
	 
	 	b.	 	Customer is responsible for all costs for PCs and Network printers in
Customer Service Locations.




31









 






	 	c.	 	Vendor will provide network monitoring and configuration support consistent with the support provided prior to the Effective Date.
	 
	 	d.	 	Vendor will approve all new equipment (PCs and network printers)
before being added to the network (approval is not to be unreasonably withheld or delayed).
	 
	 	e.	 	Vendor will help supervise Customer onsite network
administrators for data functionality.
	 
	 	f.	 	Vendor will maintain firewall, FTP services and Internet Services.
	 
	 	g.	 	Vendor will maintain Anti virus and PC operating service patches
and push updates to network PCs.
	 
	 	h.	 	Vendor will maintain the server hardware and software for
Lotus Notes email, Databases and iNotes.
	 
	 	i.	 	Vendor is responsible for managing print services consistent
with the support provided prior to the Effective Date.
	 
	 	j.	 	Vendor will provide network access to the current release of
CCS-MTU billing software for use on behalf of existing Accordis CCS-MTU customers.





XIII. Telephone





	 	a.	 	Vendor will manage the existing telephone systems for Customer
at 401 Park Avenue South, New York, NY, 10016.
	 
	 	b.	 	Vendor will interact with communications equipment suppliers and
telephone companies to resolve problems related to the specific circuits and network components provided by the Vendor.
	 
	 	c.	 	Customer is responsible for maintaining a services agreement for
Customer Service Location telephone switches, except at 401 Park Avenue South, New York, NY,
10016, which is the responsibility of Vendor.





XIV. Communications





Customer is responsible for all data line costs for each line (broadwing frame
relay, new edge frame relay over DSL and broadwing IP VPN) indicated on the
attached network diagram attached to this Exhibit 1 as Appendix A. Vendor will
maintain the contract with third parties for the data lines and will include
Customer only data line costs on monthly invoices.


Vendor will maintain and manage the existing video conferencing equipment
consistent with the support provided prior to the Effective Date. Customer is
responsible for any additional equipment needed for any new Customer Service
Location.


Vendor will maintain and manage all communications and data lines used in providing
the Services. Customer will maintain and manage PC and local printer data lines
within the Customer Service Locations.



32









 





XV. Service Levels





Vendor will supply 100 hours per month of Customer specific DSS Support Services
(XII), Telephone (XIII) and Communications (XIV) as part of the Designated Fees.
Support on the shared servers in New York as listed on the network diagram attached
to this Appendix A will not be included in the 100 hours. Additional support will
be charged via the schedule in Exhibit 7, Hourly Rate Schedule. Travel
costs associated with Customer specific services are not included in Designated
Fees and will be charged back to Customer according to Vendor’s travel and expense
policy.



XVI. Holidays





Vendor will be responsible for providing the Services each day of the year except
Federal Holidays, Thanksgiving and Christmas days, provided, however, that upon 48
hours’ advance notice to Vendor, Customer may require Vendor to provide Services on
those holidays and Customer shall pay Vendor’s out-of-pocket expenses for the
provision of such Services.



33









 










34









 





EXHIBIT 2




THIRD PARTY SOFTWARE




I. Third Party Software Other Than IBM Products




	 	 	 	 	 
	PRODUCT	 	VENDOR	 	 
	NAME	 	NAME	 	Description
	Beta/88

	 	Beta Systems, Inc.
	 	RACF Security Mgt.
	CA-Deliver

	 	Computer Associates
	 	View Report Distribution
	CA-ISM (Faver)

	 	Computer Associates
	 	VSAM Export/Restore
	 
	 	 	 	 
	CA-View

	 	Computer Associates
	 	Report Repository
	CA-Vision/Sixty

	 	Computer Associates
	 	4 GL Language Generator
	CA-Vision:Doc

	 	Computer Associates
	 	4 GL Language Generator
	CA-Vision:Results

	 	Computer Associates
	 	4 GL Language Generator
	 
	 	 	 	 
	Endeavor

	 	Computer Associates
	 	Program Management
	Code-1 Plus

	 	Group One Software Inc.
	 	ZIP Code +
	Code-1 Plus subscript

	 	Group One Software Inc.
	 	ZIP Code +
	Decision Analyzer

	 	Decision Technology
	 	Data Analytical Rpt. Tool
	Direct Connect

	 	Sterling Commerce
	 	Network Data Mover
	 
	 	 	 	 
	File-Aid/MVS/DB2

	 	Compuware
	 	File Management
	Gentran

	 	Sterling Commerce
	 	Ansi Data Converter
	Host on Demand

	 	IBM Software
	 	Product Number: E1BGELL
	In-tune

	 	Boole & Babbage
	 	Performance/Tuning Analyzer
	Jobscan

	 	Diversified Software Sys
	 	JCL Validation
	MVS-Plus (Pkzip)

	 	Ascent Solutions Inc.
	 	Data Compression






35









 






	 	 	 	 	 
	PRODUCT	 	VENDOR	 	 
	NAME	 	NAME	 	Description
	MXG Software

	 	Merrill Consultants
	 	Performance Reporting & Analysis
	OCE Editor

	 	American Medical Association
	 	Outpatient Code Editor
	Quickref

	 	Chicago Soft
	 	Interactive Systems Documentation
	QuickTape

	 	Texas Digital
	 	Tape Mgt. Mounting Facil.
	TableBase

	 	Data Kinetics
	 	Data Utility
	Tmon/CICS

	 	Landmark Systems
	 	CICS Performance Monitor
	Tubes/MVS

	 	Macro 4
	 	3270 Session Manager
	VPS

	 	Levi, Ray, Strupp
	 	Network Printing
	Xpeditor/CICS

	 	Compuware
	 	CICS Code
	Zela

	 	Software Corp of Amer
	 	Tape consolidation






II. Vendor Provided IBM Products




     The following table outlines the IBM program products to be supplied by the Vendor.



	 	 	 
	Product Number	 	IBM Program Product
	5694 A01

	 	Z/OS V1 Base
	5694 A01

	 	Z/OS V1 DFSMS DSS+HSM
	5694 A01

	 	Z/OS V1 DFSORT
	5694 A01

	 	Z/OS V1 HLA Toolkit
	 
	 	 
	5694 A01

	 	Z/OS V1 RMF
	5694 A01

	 	Z/OS V1 SDSF
	5694 A01

	 	Z/OS V1 Security Server
	5655 G53

	 	COBOL Full Function
	5648063

	 	3746 Model 900 Feat
	5648063

	 	ACF/NCP V7
	5655041

	 	ACF/SSP Version 4 MVS
	5655103

	 	DITTO/ESA for MVS
	5655 M15

	 	CICS TS for Z/OS






36









 






	 	 	 
	Product Number	 	IBM Program Product
	5625 DB2

	 	DB2 UDB for Z/OS
	5625 DB2

	 	QMF Classic
	5697 ENV

	 	Tivoli NetView Enterprise
	5698 S51

	 	Tivoli Workload Scheduler







37












 





EXHIBIT 3




SERVICE LOCATIONS





	A. 	Vendor Service Location:






	 	1.	 	401 Park Avenue South, Floors 9-11, New York, New York 10016






	B. 	Customer Service Locations:






	 	1.	 	401 Park Avenue South, 8th Floor, New York, New York 10016
	 
	 	2.	 	500 Bi County Blvd, Farmingdale, NY 11735
	 
	 	3.	 	7800 West Oakland Park Blvd, Bldg. C, Sunrise, FL 33351
	 
	 	4.	 	9841 Airport Blvd, Los Angeles. CA 90045
	 
	 	5.	 	2960 South Baker Drive, Springfield, IL 62703
	 
	 	6.	 	400 Perimeter Center Terrace, Atlanta, GA 30346





38









 





EXHIBIT 4




DESIGNATED FEES




DESIGNATED FEES The Designated Fees for the Designated Services are $166,666 per month during first
Contract Year. The Designated Fees for the Designated Services are $183,333 per month during
Contract Years 2 through 4.




	a.	 	If the number of active AccessLine Accounts exceeds the Total In Scope AccessLine
Accounts in a month, the following calculation will be used to calculate the additional
AccessLine monthly charges to Customer:






	 	i.	 	AccessLine Accounts Percentage Over is calculated as follows:






	 	1.	 	(number of active AccessLine Accounts / Total In Scope
AccessLine Accounts) — 100%.






	 	ii.	 	AccessLine additional monthly charge is calculated as follows:






	 	1.	 	90% of the monthly Designated Fee multiplied by AccessLine
Account Percentage Over.






	b.	 	If the number of RCR Clients exceed the Total In Scope RCR Clients in a month, the
following calculation will be used to calculate the additional RCR monthly charges to
Customer:






	 	i.	 	RCR Clients Percentage Over is calculated as follows:






	 	1.	 	(number of RCR Clients / Total In Scope RCR Clients) — 100%.






	 	ii.	 	RCR additional monthly charge is calculated as follows:






	 	1.	 	10% of the monthly Designated Fee multiplied by
RCR Client Percentage Over.





39









 





EXHIBIT 5




SERVICE LEVELS AND PERFORMANCE CREDITS





	1.	 	GENERAL PROVISIONS.






	 	1.1.	 	General.




The
Service Levels referenced in Article  6 of the Agreement are set forth in this Exhibit.





	 	1.2.	 	Definitions.




Capitalized terms used in this Exhibit that are not defined in this Exhibit shall have the meanings
assigned to them in the Agreement. The following defined terms used in this Exhibit shall have the
meanings specified below:





“Performance Credit” shall mean a credit in an amount set forth in Section 5
below payable to Customer by Vendor in connection with a Service Level Failure.




“Service Levels” shall have the meaning set forth in this Exhibit.




“Service Level Failure” shall mean Vendor’s failure to achieve a Service Level in
any given month.




	2.	 	PERFORMANCE TRACKING AND REPORTING.






	 	A.	 	General: Vendor shall provide Customer with a report of the performance level
attainment against the Service Levels as set forth in Exhibit 8 no later than
the 25th day of each month. Vendor will be responsible for promptly investigating and
correcting Vendor’s failure to meet established Service Levels in accordance with
Section 6.04 of the Agreement. If the Root Cause Analysis shows that Customer
was the Root Cause of the Service Level Failure, or the cause was outside control of
Vendor, then Vendor shall not be subject to a Performance Credit.






	3.	 	SERVICE LEVEL REVIEWS.




The Parties will review the Service Levels in accordance with this Section 6.03 of the
Agreement. As part for their monthly meetings, the Vendor Contract Manager and the Customer
Contract Manager shall discuss the Service Levels. Any additions, deletions or modifications to the
Service Levels may be made by mutual agreement of the Contract Managers at such monthly meetings.




40









 






	4.	 	PERFORMANCE CREDITS.




In the event of a Service Level Failure, Vendor shall incur the Performance Credit associated with
the Service Level that Vendor failed to achieve. If more than one Service Level Failure has
occurred in a single month, the sum of the corresponding Performance Credits shall be paid to
Customer; provided, however that, notwithstanding the amount of Performance Credits incurred by
Vendor, in no event shall the total amount of Performance Credits incurred by Vendor in a single
month exceed $25,000. All Performance Credits incurred by Vendor in a given month shall be
Customer’s sole remedy for Service Level Failures and shall be credited to Customer on the next
monthly invoice.





	5.	 	SERVICE LEVELS




Initial Service Levels are set forth below.





	 	A.	 	RESOURCE AVAILABILITY-is defined as Machines at the Vendor Service
Location and Third Party Software (“Resources”) available to Customer from local
and remote Customer sites 24 hours a day, seven days a week including all national and
corporate holiday schedules, except for periods of scheduled maintenance authorized by
Customer (“Resource Availability”).





	 	 	 	 	 
	Category	 	Description	 	SLA Calculation
	 
	 	 	 	 
	Resource 

Availability*

	 	Hardware (CPU & DASD)
	 	If either the CPU or
DASD is down on any
given day and not
operational for a
period Greater than 4
hours Vendor shall
incur a Performance
Credit.
	 
	 	 	 	 
	 

	 	System Software (CICS)
	 	If all CICS is down
on any given day and
not operational for a
period Greater than 4
hours Vendor shall
incur a Performance
Credit.
	 
	 	 	 	 
	 

	 	Third Party Software
(see Exhibit 2)
	 	If any of the Third
Party Software
program products are
down on any given day
and not operational
for a period Greater
than 4 hours Vendor
shall incur a
Performance Credit.







	 	(i)	 	Performance Credit for Critical Resources. Vendor shall incur the
following Performance Credits for each day that any or all the Resources are not available
for 4 hours or more on such day during a given month:




41









 











	 	 	 	 	 
	 

	 	Problem extends:
	 	4.1 hours to 8 hours — $2,000
	 

	 	 	 	8.1 hours to 16 hours — $4,000
	 

	 	 	 	16.1 hours to 24 hours — $6,000






               * Periodically system maintenance is performed, requiring an IPL (Initial Program Load which
is required to install new and upgraded releases of software and hardware) of the Machine. This
scheduled down time is excluded from the Resource Availability. This maintenance is scheduled in
advance with proper notice provided to Customer, and is typically performed on Sundays.




	 	B.	 	TRANSACTION RESPONSE TIME-is defined as the actual wall clock time from the
instant the user initiates a request depressing the enter key until the information has
been fully displayed on the user screen and the system has unlocked the keyboard. CICS
Monitor and RMF software will be used to track and calculate total transactions and
response time calculations.






	 	(i)	 	Online Performance Windows for each CICS region shall be available:





	 	 	 	 	 
	 

	 	A.    Branch and Data
	 	 
	 

	 	•    Monday through Friday


	 	8:00 am-10:00 pm (EST)
	 

	 	•    Saturday


	 	8:00 am-4:00 pm (EST)
	 

	 	•    Sunday


	 	Upon request
	 
	 	 	 	 
	 

	 	B.    West*
	 	 
	 

	 	•    Monday through Friday


	 	12:00 am-6:00 pm (EST)
	 

	 	•    Saturday


	 	12:00 am-6:00 pm (EST)
	 

	 	•    Sunday


	 	Upon request
	 
	 	 	 	 
	 

	 	C.    HSW
	 	 
	 

	 	•    Monday through Friday


	 	10:00 am-11:00 pm (EST)
	 

	 	•    Saturday


	 	10:00 am-3:00 pm (EST)
	 

	 	•    Sunday


	 	Upon request
	 
	 	 	 	 
	 

	 	D.    QA and Test
	 	 
	 

	 	•    Monday through Friday


	 	8:00 am-6:00 pm (EST)
	 

	 	•    Saturday


	 	8:00 am-6:00 pm (EST)






42









 






	 	 	 	 	 
	 

	 	•    Sunday


	 	Upon request





 



*    If End Of Month (EOM) processing is performed the next business day the region up time is not
guaranteed.



**  if EOM processing or LAC loads run (typically second week of the month), the region up time is
not guaranteed.





	 	(ii)	 	Performance Credit: Vendor shall incur a Performance
Credit of $100 per day, per CICS region that Vendor fails to meet the region
availability.






	 	(a)	 	Network Response Time Performance Standard:






	 	(1)	 	95% of total transactions
(Branch, West, Data, HSW) to be completed within 1.0-3.0
seconds
	 
	 	(2)	 	90% of total transactions
(QA and Test) to be completed within 1.0-3.0 seconds






	 	(b)	 	Performance Credit: Vendor shall incur a
Performance Credit of
$2,000, per region in which the applicable standard is not met, if
Vendor fails to meet, in the aggregate, the applicable Network
Response Time Performance Standard in a given month.






	 	(iii)	 	Online Performance Window for TSO transactions






	 	(a)	 	TSO Response Time Standard:






	 	(1)	 	85% of all TSO transactions
need to be completed within 3.0 seconds






	 	(b)	 	Performance Credit: Vendor shall incur a
Performance Credit of
$2,000 for any month in which Vendor fails to meet, in the
aggregate, the TSO Response Time Standard for TSO transactions in
such month.






	 	C.	 	BATCH WINDOW STANDARDS






	(i)	 	The following batch class initiators must be available to Customer starting at 8:00 am
(EST) and ending at 7:00 pm (EST):





	 	 	 	 	 
	CLASS	 	ELAPSED TIME	 	CPU TIME
	 
	 	 	 	 
	A

	 	15 minutes
	 	1 minute






43









 






	 	 	 	 	 
	CLASS	 	ELAPSED TIME	 	CPU TIME
	 
	B

	 	1 Hour
	 	10 minutes
	 
	C

	 	48 Hours
	 	unlimited
	 
	S

	 	On Demand
	 	unlimited





(ii)  Performance Credit: Vendor shall incur a Performance Credit of $100 per class, per
day that the required batch class services are not available to the Customer.




44









 





EXHIBIT 6




IN SCOPE MAXIMUMS





	A.	 	Total In Scope AccessLine Accounts in the Active Master File





	 	 	 
	               Contract Year 1:

	 	15,730,000
	 
	               Contract Year 2-4:

	 	17,303,000







	B.	 	Total In Scope RCR Clients





	 	 	 
	               Contract Year 1:

	 	16
	 
	               Contract Year 2-4:

	 	17






45









 





EXHIBIT 7




HOURLY RATE SCHEDULE



1. Out-Of-Scope Services will use the follow hourly rates:



     a. Contract Year 1 —$151/hour



     b. Contract Year 2-4 — $166/hour





46












 





EXHIBIT 8




REPORTS





	I.	 	Monthly Reports
	 
	A.	 	Vendor shall provide the following monthly reports to Customer by the 15th day of each
month.






	 	1.	 	Overall TSO response time by period in the form attached to this
Exhibit 8 as Appendix A.
	 
	 	2.	 	CICS/ESA monitor for all CICS regions — (WEST, EAST, Data Entry, LAC) in the
form attached to this Exhibit 8 as Appendix A.
	 
	 	3.	 	A consolidated report, including status updates, with respect to each
Change Request.
	 
	 	4.	 	Consolidated Service Level report, including a list of any Service Level
Failures and Performance Credits incurred during such month.






	II.	 	Daily Reports
	 
	A.	 	Vendor shall provide the CICS regions start time and all hardware and Third Party
Software problems within the Vendor Service Location for the DPO Morning Report each day
by 8:00 am (EST) via email to the Customer Contract Manager and all other Customer
employees designated by the Customer Contract Manager.
	 
	III.	 	Other Reports
	 
	A.	 	Vendor shall provide the following reports as required:






	 	1.	 	Root Cause Analysis Report within 30 days of a Service Level failure






	IV.	 	Review of Reports




As part of their monthly meeting, the Contract Managers shall review and discuss all reports
produced during such month.





47









 












Appendix A




Form of Reports




TSO Response Time




	 	 	 	 	 
	 

	 	OVERALL TSO RESPONSE TIME BY PERIOD - SLA
	 	11:42 FRIDAY, JANUARY 14 , 2005       76
	 

	 	REPORT DATE AND TIME: FRI, JAN 14, 2005 11:49	 	 
	 

	 	FROM 09 JAN 05 < - - - - - -
> 11 JAN 05	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	AVERAGE	 	 	ENDED	 	 	PERCENT	 	 	CPU TCB	 	 	IO	 	 	MEMORY	 
	   SYSTEM	 	 	 	 	 	RESPONSE	 	 	TRANSACTION	 	 	ENDED	 	 	SERVICE	 	 	SERVICE 	 	 	SERVICE	 
	        IO	 	PERIOD	 	 	TIME	 	 	COUNT	 	 	TRANSACTION	 	 	UNITS	 	 	UNITS	 	 	UNITS	 
	MVS2
	 	1-QUICK < 1 SEC	 	 	0.29	 	 	 	129550	 	 	 	100.00	 	 	 	112,950,163	 	 	 	13,896,257	 	 	 	903,551,466	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	129550	 	 	 	100.00	 	 	 	112,950,163	 	 	 	13,896,257	 	 	 	903,551,466	 






CICS Response Time




	 	 	 	 	 
	DATE: 1/11/05

	 	The  CICS/ESA
	 	PAGE 4
	TIME: 00:27:12

	 	SYSTEM TOTAL PAGE FOR WEST ON 01/10/05	 	 
		 	DATA IS FROM 01/10/05 AT 11:37 TO 01/10/05 AT 23:59	 	 






CICS SYSTEM ACTIVITY




RESPONSE TIME DISTRIBUTION




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	RESPONSE	 	TXNS	 	 	PCT	 	 	CUM %	 	 	0	 	 	1	 	 	2	 	 	3	 	 	4	 	 	5	 	 	6	 	 	7	 	 	8	 	 	9	 	 	0	 
	0.0-1.0 SEC
	 	 	104,819	 	 	 	98.3	%	 	 	98.3	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%	 	 	%	%
	1.0-2.0 SEC
	 	 	1,049	 	 	 	.9	%	 	 	99.3	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.0-3.0 SEC
	 	 	329	 	 	 	.3	%	 	 	99.6	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.0-4.0 SEC
	 	 	134	 	 	 	.1	%	 	 	99.8	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4.0-5.0 SEC
	 	 	80	 	 	 	.0	%	 	 	99.8	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5.0*** SEC
	 	131	 	 	 	.1	%	 	 	100.0	%	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






	 	 	 	 	 
	TOTAL TRANSACTIONS EXECUTED
	 	 	106.845	 
	TRANSACTIONS EXCLUDED FROM HIGH TASK
	 	 	3	 
	ENDED TRANSACTIONS
	 	 	106.542	 






CICS SYSTEM AVAILABILITY




	 	 	 	 	 
	SYSTEM AVAILABILITY PERCENTAGE
	 	 	39.7	%
	 
	 	 	 	 
	FROM TIME
	 	 	00:00:00	 
	TO TIME
	 	 	24:00:00	 
	SYSTEM OUTAGE
	 	 	14:27:21	 






	 	 	 	 	 
	START
TIME
	 	END TIME	 	DURATION
	11:35:00
	 	21:07:39	 	09:32:38






HIGH WATER MARK INFORMATION




	 	 	 	 	 	 	 
	CATEGORY	 	TIME	 	 	TRANID
	FILE WAIT
	 	 	53.8298	 	 	T24O






	 	 	 	 	 	 	 
	CATEGORY	 	POOL SIZE	 	 	TRANID
	USER24
	 	 	8K	 	 	OC
	USER31
	 	 	257K	 	 	T24O
	USER24
	 	 	1K	 	 	CESN
	USER31
	 	 	23K	 	 	CENT






	 	 	 	 	 	 	 	 	 
	CPU ANALYSIS 	 	CPU TIME	 	 	TOTAL DISPATCH	 
	TOTAL ADDRESS SPACE CPU
	 	 	43:29.5054	 	 	 	 	 
	TCB
	 	 	41:10.2619	 	 	 	 	 
	SRB
	 	 	2:19.2434	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SUBTASK CPU
	 	 	6:26.4391	 	 	 	 	 
	DBCTL CONTROL TASK CPU
	 	 	.0000	 	 	 	 	 
	DBCTL THREAD
	 	 	.0000	 	 	 	 	 
	TMON SUBTASK
	 	 	.0000	 	 	 	 	 
	OTHER SUBTASKS
	 	 	6:26.4391	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	APPLICATION TASKS CPU/DISP
	 	 	34:43:8228	 	 	 	1:30:06.0693	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	I/O ACTIVITY	 	COUNT	 	 	AVG TIME	 	 	TOTAL TIME	 
	FILE REQUESTS
	 	 	3,583,109	 	 	 	.0028	 	 	 	2:51:43.6551	 
	PROGRAM LOADS
	 	 	285,635	 	 	 	.0001	 	 	 	34.2785	 
	JOURNAL REQUESTS
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	TD REQUESTS
	 	 	7	 	 	 	.0031	 	 	 	.0221	 
	DL/I CALLS
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	DL/I WAITS
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	SOL CALLS TO DB2
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	NON-SOL CALLS TO DB2
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	USER DATA BASE CALLS
	 	 	0	 	 	 	.0000	 	 	 	.0000	 
	DB2 WAIT W/O THREAD
	 	 	0	 	 	* NA *	 	* NA *
	DB2 PLAN OVERFLOW
	 	 	0	 	 	* NA *	 	* NA *






STORAGE ANALYSIS




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	DSA NAME	 	SIZE	 	 	IN USE	 	 	SOS	 	 	STG VIOLS	 
	CDSA
	 	 	1,024K	 	 	 	1,015K	 	 	 	0	 	 	 	0	 
	ECDSA
	 	 	5,192K	 	 	 	7,520K	 	 	 	0	 	 	 	0	 
	ERDSA
	 	 	16,432K	 	 	 	17,916K	 	 	 	0	 	 	 	0	 
	ESDSA
	 	 	1,024K	 	 	 	140K	 	 	 	0	 	 	 	0	 
	EUDSA
	 	 	3,072K	 	 	 	1,216K	 	 	 	0	 	 	 	0	 
	RDSA
	 	 	256K	 	 	 	232K	 	 	 	0	 	 	 	0	 
	SDSA
	 	 	256K	 	 	 	16K	 	 	 	0	 	 	 	0	 
	UDSA
	 	 	256K	 	 	 	16K	 	 	 	0	 	 	 	0	 






	 	 	 	 	 
	HIGHEST PAGING RATE PER SEC
	 	 	1.273	 
	HIGHEST WORKING SET (PAGE FRAMES)
	 	 	5.500	 
	HIGHEST OPSYS STORAGE LEVEL
	 	 	0	 







48











 





EXHIBIT 9




DATA SAFEGUARDS




	 	 	 	 	 
	Ø

	 	At the Vendor Service Location(s), Vendor shall maintain restricted access to data
center via existing security card access.
	 
	 	 	 	 
	Ø

	 	At the Vendor Service Location(s), Vendor shall be responsible for all building
support, including, power, air conditioning and prevention from water damage.
	 
	 	 	 	 
	Ø

	 	Vendor shall comply with existing RACF security policies and procedures consistent with
the support provided prior to Effective Date.
	 
	 	 	 	 
	Ø

	 	Vendor shall use access granted by Customer to the Customer Service Locations to
perform the Services as set forth in the Agreement (including the Exhibits).
	 
	 	 	 	 
	Ø

	 	Vendor shall supply storage and security for customer tape, cartridge media and Vendor
shall restrict access to such storage to only those Vendor employees or Vendor Agents
requiring access.
	 
	 	 	 	 
	Ø

	 	Vendor shall ensure appropriate disposal of all Confidential Information including
printed outputs DASD floppy disks tape and cartridge.
	 
	 	 	 	 
	Ø

	 	Customer may initiate, with Vendor’s cooperation, ad hoc security review audits to
assess security risks to the Customer Data — no more frequent than quarterly.
	 
	 	 	 	 
	Ø

	 	Vendor shall issue security alerts and warnings to the Customer Contract Manager
if Vendor becomes aware of any breach of (1) these data safeguard procedures, or (2)
any other security policies and procedures in effect at the Vendor Service Location(s)
or Customer Service Locations.
	 
	 	 	 	 
	Ø

	 	Any and all additional safeguards as may be required in the Business Associate Agreement.






49









 







EXHIBIT 10




CHANGE CONTROL PROCEDURES




I. CHANGE REQUESTS



Either Party may request, orally or in writing, a Change to this Agreement. Upon either Party’s
receipt of request for Change, the Parties shall work together to prepare a written change request
containing the general information set forth below and in
Appendix A to this Exhibit regarding the
proposed Change (a “Change Request”).




II. ORIGINATING THE CHANGE REQUEST



Using the Change Request Form attached hereto as Appendix A, the Party requesting the
Change shall provide a description of the proposed Change(s) and specify the reason for the Change.
Vendor shall assign a unique number to the Change Request, and the Parties shall complete the
Change Request by including the following information in the Change Request Form:





	 	1.	 	List the documents and solution components that will need to be updated when the
Change in implemented
	 
	 	2.	 	Estimate the impact of the Change (minimal (8 hrs or less), moderate (9-40 hours) or
major (over 40 hours))
	 
	 	3.	 	Indicate whether a full evaluation of the Change impact is required and, if so,
estimating the time needed for evaluation and assigning a resource to perform the
evaluation.




The Vendor shall then enter the Change Request into the Change Control Log.



All
completed Change Requests shall be forwarded to a Vendor designated evaluator for evaluation.
Vendor shall complete its evaluation of each Change Request within 30 days of receipt of a complete
Change Request and forward such Change Request, with its recommendations, to the Contract Managers
for approval. Vendor shall log the status of the Change Request and keep Customer informed of the
status of each Change Request.




III. APPROVAL



Upon receipt of the Change Request and the recommendations of the Vendor evaluator, the Contract
Managers shall review the Change Request and shall, within 30 days of receipt of such Change
Request, either approve or not approve such Change Request. No Change shall be made to any Services
or to this Agreement unless it has been approved by the Customer Contract Managers and the Vendor
Contract Manager.




IV. IMPLEMENTATION



Vendor shall manage the implementation of an approved Change Request. Vendor shall track progress
of the Change, apprise Customer Contract Managers of the status of the Change Request






50









 







during implementation (not less than once a week), and make any adjustments in Services as needed.




V. CLOSURE



When Vendor successfully implements a Change Request, Vendor shall update the status of the Change
Request in the Change Control Log, archive the Change Request related documentation, notify
Customer of the implementation and close the Change Request.




VI. REPORTING



A consolidated report, including status updates with respect to each Change Request, shall be
included in a monthly report.




51









 








APPENDIX A




Sample Change Request Form




Accordis Holding Corp.





Change Request Form




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Requested	 
	Customer	 	 	Request	 	 	Phone	 	 	Request	 	 	Completion	 
	Contact	 	 	Number	 	 	Number	 	 	Date	 	 	Date	 





Change Description:




Reason for Change:




Specific Tasks:




	 	 	 
	Assigned to:

	 	Rate:






	 	 	 
	Total Change Order: 

Hours:

	 	Cost: $






	 	 	 
	Change Request Completion Date:

	 	Attachments:






	 	 	 	 	 	 	 
	Customer Approval:

	 	 	 	Approval Date:	 	 
	 

	 	 
	 	 	 	 
	Accordis Holding Corp.	 	 	 	 
	 
	 	 	 	 	 	 
	Vendor Approval:

	 	 	 	Approval Date:	 	 
	 

	 	 
	 	 	 	 
	HMS	 	 	 	 






52









 





EXHIBIT 11




DISASTER RECOVERY TRANSITION PROCEDURES





	•	 	Vendor shall notify the Customer Contract Manager of an existing, pending or potential event
that would require Vendor to deploy its DRP and provide the Services by means of the Disaster
Recovery Vendor.
	 
	•	 	Customer shall supply a list of Customer Service Locations for which back-up connectivity to
the Disaster Recover Vendor would be necessary in the event a disaster is declared. Vendor
will arrange for implementation, maintenance and management of the back-up data lines and
Customer will be responsible for the installation and ongoing line costs for these back-up
data lines, as described in Exhibit I, Section IV.
	 
	•	 	Upon the occurrence of an event requiring Vendor to deploy its DRP and provide the Services
by means of the Disaster Recovery Vendor, Vendor shall:






	 	•	 	notify telecommunication vendors to switch all network lines to the Disaster
Recovery Vendor site;
	 
	 	•	 	notify Iron Mountain to send all backup tapes to the Disaster Recovery Vendor;
	 
	 	•	 	ensure that all necessary supplies and tapes are sent from the Vendor
Service Location(s) to the Disaster Recovery Vendor; and






	•	 	The Disaster Recovery Vendor is:





	 	 	 
	 

	 	SUNGARD RECOVERY SERVICES
	 

	 	401 North Broad Street
	 

	 	Suite 600
	 

	 	Philadelphia, PA 19102
	 

	 	Contract Number: 93068100-37050-44932







	•	 	The Iron Mountain facility used by the Vendor is located at 203 Moonachie
Road, Moonachie, NJ 07074.






53









 








Execution Version




EXHIBIT 12




BUSINESS ASSOCIATE AGREEMENT




[Attached separately]