Agreement For Systems Operations Services

Comdata and ISSC agree that the following terms and conditions will apply to services provided by ISSC under this Agreement. Comdata and ISSC may be referred to individually as a "Party" and collectively as the "Parties."


Table of Contents


Section Title Page


1.0 Background and Objectives


2.0 Definitions, Documents and Term 2.1 General Definitions 2.2 Associated Contract Documents 2.3 Term 2.4 Renewal and Expiration


3.0 Overview


3.1 Transition of Services 3.2 Previously Acquired Assets 3.3 Acquired Assets 3.4 Leased Assets and Contracts 3.5 Software 3.6 Required Consents 3.7 Joint Verification 3.8 Other Obligations 3.9 Comdata Approvals and Notification


4.0 ISSC Responsibilities 4.1 ISSC Personnel 4.2 Standards 4.3 Efficient Use of Resources 4.4 Technological Improvements 4.5 Management and Control 4.6 Machines 4.7 Applications Software 4.8 Data Transmission(Lines/Circuits) 4.9 Software Services 4.10 Operations, Support and Maintenance 4.11 Consolidation and Relocation Services 4.12 Systems Management 4.13 Disaster Recovery 4.14 Production Services 4.15 Projects 4.16 DSM Help Desk 4.17 Audits


5.0 Comdata Responsibilities 5.1 Project Executive 5.2 Applications Software 5.3 Software Services 5.4 Facilities 5.5 Support Services 5.6 Other Responsibilities 5.7 CHC Guaranty


6.0 Charges and Expenses 6.1 Annual Services Charge 6.2 Cost of Living Adjustment 6.3 Services for Newly Acquired Comdata Affiliates 6.4 New Services 6.5 Replacement Services 6.6 Taxes 6.7 Services Transfer Assistance 6.8 Other Expenses and Charges


7.0 Invoicing and Payment 7.1 Annual Services Charge 7.2 COLA Invoicing 7.3 Accountability 7.4 Other Charges 7.5 Invoice 7.6 Proration 7.7 Refundable 7.8 Set-Off


8.0 Intellectual Property Rights 8.1 Ownership of Comdata Product Software 8.2 Other Materials 8.3 Assignment of Personnel and Use of Ideas


9.0 Confidentiality/Data Security 9.1 Confidential Information 9.2 Obligations 9.3 Exclusions 9.4 Protection of Comdata 9.5 Loss of Confidential Information 9.6 Limitation


10.0 Termination 10.1 Termination for Convenience
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10.2 Termination upon Acquisition 10.3 Termination for Cause 10.4 Extension of Services 10.5 Other Rights Upon Termination


11.0 Liability 11.1 General Intent 11.2 Damages 11.3 Other Remedies


12.0 Warrant 12.1 Work Standards 12.2 Maintenance 12.3 Compliance with Obligations 12.4 Claims 12.5 Environmental 12.6 Bankruptcy 12.7 Non-Infringement 12.8 Ownership of Comdata Machines 12.9 Disclaimer


13.0 Indemnities 13.1 Indemnity by ISSC 13.2 Indemnity by Comdata 13.3 Cross Indemnity and Contribution 13.4 Indemnification Procedures 13.5 Subrogation 13.6 Exclusive Remedy


14.0 Insurance and Risk of Loss 14.1 Insurance 14.2 Risk of Loss


15.0 Publicity


16.0 Review Committee and Dispute Resolution 16.1 Joint Advisory Committee 16.2 Dispute Resolution 16.3 Continued Performance


17.0 General 17.1 Control of Services 17.2 Right to Perform Services for Others 17.3 Scope of Services 17.4 Amendments and Revisions 17.5 Force Majeure 17.6 Nonperformance 17.7 Remarketing 17.8 Waiver 17.9 Severability 17.10 Time Limitations for Action 17.11 Counterparts 17.12 Governing Law 17.13 Binding Nature and Assignment 17.14 Notices 17.15 No Third Party Beneficiaries 17.16 Other Documents 17.17 Headings


SUPPLEMENT


Annual Services Charge


Termination Charges


Enhancement Baseline


Exhibit 1: Guaranty


TABLE OF SCHEDULES


Schedule Title


Schedule A Applications Software


Schedule B Systems Software


Schedule C Comdata Machines


Schedule E Support Services, Performance Standards and Operational Responsibilities


Schedule F Acquired Assets, Leases, Licenses and Contracts


Schedule G Disaster Recovery Services


Schedule H Transition Plan


Schedule I End User Locations


Schedule J ISSC Charges, Measures of Utilization


Schedule K Application Installation Standards


Schedule L Security Procedures


Schedule M DSM Help Desk


Schedule N Projects


Schedule O Affected Employees


Schedule P Maintenance Terms


Schedule Q Claims


Schedule R End User Machines Subject to Maintenance


Schedule S Bill of Sale


Schedule T DSM Environment


Schedule U ISSC Machines Subject to Baseline
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1.0 Background and Objectives


On September 6, 1991, Comdata and ISSC entered into an Agreement for Systems Operations Services ("Original Agreement") whereby ISSC assumed responsibility for Comdata's information system operations, certain application operations; systems administration services and systems integration services.


After careful evaluation of ISSC's proposals and other alternatives, Comdata agrees to amend the Agreement for Systems Operations Services revising the scope of the Systems Operations Services being purchased by Comdata from ISSC. This Amended and Restated Agreement for Systems Operations Services supersedes the Original Agreement and all amendments thereto in its entirety and documents the terms and conditions under which Comdata agrees to purchase and ISSC agrees to provide such Services.


2.0 Definitions, Documents and Term


2.1 General Definitions


As used in this Agreement:


a) "Acquired Assets" means those machines, equipment and other goods purchased by ISSC from Comdata. Acquired Assets are listed in Section F-1 of Schedule F. b) "AD/M Services" means both applications Development and Applications Maintenance. c) "Affiliate" means, with respect to a Party, any entity at a time controlling, controlled by or under common control with, such Party. The term "Control" as used in this Agreement shall mean the legal, beneficial or equitable ownership, directly or indirectly. of more than 50% of the aggregate of all voting equity interests in such entity. d) "Amended Commencement Date" means May 1, 1995. e) "Annual Services Charge" means the fixed charge to Comdata for ISSC's provision of the Services and includes the quantity of Resource Units set forth under Baselines in the Supplement. f) "Applications Development" means the programming of: 1) any new applications software; 2) regulatory/statutory mandated changes; 3) version upgrades to Applications Software; and 4) changes or enhancements to existing Applications Software and DSM Applications Software. Programming effort shall include the pre and post development analysis, technical education, planning, design, coding, unit testing, installation, and programmers' technical documentation. g) "Applications Maintenance" means: 1) defect identification and fixes; and 2) installation of those fixes and updates provided by the Software vendor as part of normal maintenance service for which there is no additional cost to ISSC for the Software specified in Schedules A and T. h) "Applications Software" means those programs and programming, including all supporting documentation and media, that perform specific user related data processing and telecommunication tasks. Applications Software is listed in Schedule A. i) "Baseline" means the specified quantity of resources for a resource category included within the Annual Services Charge, as set forth in the Supplement and Schedule J. j) "Comdata Data Center" means the Machines and Software located at 5301 Maryland Way, Brentwood, Tennessee (the "Brentwood Facility") and 1421 Champion Drive, Carrollton, Texas the "Dallas Facility") as of the Amended Commencement Date and at such other locations as may be established hereafter. k) "Comdata Machines" means machines, excluding DSM Machines, within the Data Center and Data Network that are owned, leased or rented and retained by Comdata after the Amended Commencement Date and that are used by ISSC so that ISSC may provide the Services. Comdata Machines are listed in Schedule C. l) "Comdata Network" consists of all machines, lines, cabling, and associated peripheral equipment used to connect the Data Center, via leased lines, common carrier facilities or public-switched networks, to the End User locations, including. but not limited to, controllers, channel extenders, multiplexors, lines, circuits and modems/DSUs, but does not include the ISSC Network m) "Comdata Product Software" means any software created solely by Comdata before or after the Amended Commencement Date or created on or after the Amended Commencement Date by ISSC or by ISSC and Comdata under this Agreement, including all supporting documentation, media and related materials, that, taken together in its substantial entirety, constitutes a commercial service offered by Comdata in its business, including but not limited to Express Cash, LoadMatcher, MOTRS, and any and all modifications, enhancements, updates, replacements and other derivative works thereof made pursuant to this Agreement, other than software, documentation, and other materials available under other ISSC or non-ISSC agreements. n) "Commencement Date" means September 6, 1991. o) "Contracts" means those written contractual arrangements under which Comdata received third party services for which ISSC has undertaken financial and administrative responsibility as of the Commencement Date. Contracts are listed in Section F-3 of Schedule F. p) "Data Center" means both the ISSC Data Center and the Comdata Data Center. The Data Center does not include the DSM Environment. q) The "Data Network" consists of the Comdata Network and the ISSC Network, but shall not include any software, equipment, tines, cabling or associated peripheral equipment relating to the Voice Systems of the voice or telecommunications network. The Data Network does not include the DSM Network.
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r) "DSM" means Distributed Systems Management. s) "DSM Applications Software" means those programs and programming, including all supporting documentation and media, that perform specific user-related data processing on DSM Machines. DSM Applications Software is listed in Schedule T. t) "DSM Environment" means a combination of DSM machines, DSM Software, and DSM Network. u) "DSM Machines" means SUN servers and associated peripherals, and Novell servers and associated peripherals that are owned, leased, or rented and retained by Comdata prior to and after the Amended Commencement Date. DSM Machines are listed in Schedule T. v) "DSM Network" means the data network used by End Users to access DSM Machines. w) "DSM Software" means DSM Systems Software and DSM Applications Software. Comdata will continue to have financial and administrative responsibility for DSM Software licenses after the Amended Commencement Date. DSM Software is listed in Schedule T. x) "DSM Systems Software" means those programs and programming, including all supporting documentation and media, that perform tasks basic to the functioning of the DSM Machines. DSM Systems Software is listed in Schedule T. y) "Effective Date" means the date both Parties execute and deliver this Agreement. z) "End User Locations" means those locations in which End User Machines, equipment and associated software are located, which locations are facilities or floors in facilities outside the Data Center. aa) "End Users" means users of Services within Comdata and its Affiliates. bb) "End User Machines" means all workstations, terminals, LAN servers, printers and associated peripheral equipment located at End User Locations. cc) "Enhancements" means support, changes, enhancements, or modifications to Applications Software and DSM Software requested by Comdata or as otherwise required in accordance with ISSC's obligations under this Agreement. dd) "Intellectual Property Rights" means, collectively, patents, patent applications, copyrights, trade secrets, mask works, industrial design, rights, rights of priority and any other similar intangible rights. ee) "ISSC Data Center" means the Machines and Software located at 305 TechPark Drive, Suite 113, LaVergne, Tennessee (the "LaVergne Facility") as of the Amended Commencement Date and at such other locations as ISSC may establish hereafter. ff) "ISSC Machines" means machines within the Data Center and Data Network which are: 1) Acquired Assets; or 2) provided by ISSC on or after the Amended Commencement Date in order to meet its obligations under this Agreement. ISSC Machines which are located at Comdata facilities are listed in Schedule D. gg) "ISSC Network" means the IBM Model 37XX communications controllers, VRUs, Jupiter protocol converters, network monitoring equipment and associated peripheral equipment, but does not include the Comdata Network, the DSM Network, or End User Machines. hh) "Leased Assets" means those machines, other equipment and fixed assets leased by Comdata for which ISSC has undertaken financial and administrative responsibility as of the Amended Commencement Date. Leased Assets are listed in Section F-2 of Schedule F. ii) "Licenses" means those written contractual arrangements under which Comdata received the right to use and maintenance for software products for which ISSC has undertaken financial and administrative responsibility as of the Amended Commencement Date. Licenses are listed in Section F-3 of Schedule F. jj) "Losses" means all losses, liabilities, damages and claims (including taxes), and all related costs and expenses (including any and all reasonable attorneys' fees and reasonable costs of investigation, litigation, settlement, judgment, interest and penalties). kk) "Machines" means both Comdata Machines and ISSC Machines. ll) "Performance Standards" means the service levels and performance responsibilities under which the Services will be provided. The Performance Standards are described in Schedule E and detailed in separate service level agreements. mm) "Procedures Manual" means the manual describing the operating processes and procedures relating to the performance of the Services. nn) "Required Consents" means any consents or approvals required for the licensing or transfer of the right to use applicable facilities, space, equipment, Software or third party services to ISSC. oo) "Software" means Applications Software, Systems Software and DSM Software. pp) "Systems Operations Services" ("Services") means those functions and applications being transferred from Comdata pursuant to this Agreement, and those additional functions and applications which ISSC agrees to provide to Comdata and its Affiliates pursuant to this Agreement. Such Services are described in Sections 4, 5, 6.4, 6.5 and the referenced Schedules. qq) "Systems Software" means those programs and programming, including all supporting documentation and media, that perform tasks basic to the functioning of the data processing and communication equipment and which are required to operate the Applications Software or otherwise support the provision of Services by ISSC. Systems Software specifically excludes DSM Software. Systems Software is listed in Schedule B.
4 rr) "Voice Systems" means the telephony switches, VMUs, VRUs, and associated controllers, multiplexors and modems under the control and management, as of the Effective Date, of the ISO organization of Comdata, but does not include the Data Network, End User Machines, or any lines or devices comprising a public-switched network.


2.2 Associated Contract Documents


This Agreement also includes: a) a Supplement ("Supplement") containing the charges, Term, and certain other necessary information; and b) Schedules A through U which will be updated by the Parties as necessary or appropriate during the Term.


2.3 Term


The term of this amended and restated Agreement will begin as of 12:01 a.m. on the Amended Commencement Date and will end as of 12:00 midnight on April 30, 2005 (the "Term"), unless earlier terminated or extended in accordance with this Agreement.


2.4 Renewal and Expiration


ISSC agrees to notify Comdata whether it desires to renew this Agreement and of the proposed prices and terms to govern such renewal not less than 18 months prior to the expiration of the Term. If ISSC notifies Comdata that it desires to renew this Agreement, Comdata agrees to inform ISSC in writing whether it desires to renew not less than 6 months prior to the expiration of the Term.


If Comdata notifies ISSC that it desires to renew the Agreement, but the Parties are unable to agree upon renewal prices, terms and conditions as of six months prior to the expiration of the Term, this Agreement will be extended for one year in accordance with the then current terms and conditions. If the Parties are unable to reach agreement on renewal during such extension period, this Agreement will expire at the end of such extension period.


3.0 Overview


3.1 Transition of Services


Transition of Services will be defined in Schedule H.


3.2 Previously Acquired Assets


As of the Commencement Date, ISSC agreed to acquire. at the price specified in Schedules F-l, the Acquired Assets. Comdata warrants that it had clear title to Acquired Assets and all associated attachments, features and accessories and transferred the same to ISSC, free of all liens and encumbrances. Comdata also warrants that the Acquired Assets had been maintained in accordance with the applicable manufacturers' maintenance requirements and were performing in satisfactory operating condition.


3.3 Acquired Assets


On the Amended Commencement Date, there will not be a transaction of Acquired Assets. If the Parties mutually agree to a purchase of Acquired Assets after the Amended Commencement Date, the Parties agree: a) ISSC will purchase the Acquired Assets for the price specified in a Bill of Sale; b) Comdata will warrant that it has clear title to the Acquired Assets and all associated attachments, features and accessories and will transfer the same to ISSC, free of all liens and encumbrances; c) Comdata will warrant that all Acquired Assets have been maintained in accordance with applicable manufacturer's maintenance requirements and are in good working order as of the date of the purchase of Acquired Assets; and d) Comdata will deliver to ISSC, con the date of the purchase of Acquired Assets, a Bill of Sale transferring title to the Acquired Assets. The form of the Bill of Sale is set forth in Schedule S of this Agreement. e) The Annual Services Charge will be revised based upon the effect of the purchase of Acquired Assets on ISSC's original cost assumptions.


3.4 Leased Assets and Contracts


Subject to Comdata obtaining any Required Consents in accordance with Section 3.6, ISSC shall have financial and administrative responsibility during the Term for all Leased Assets and Contracts listed in Sections F-2 and F-3 of Schedule F, respectively. ISSC shall be responsible for the performance of all obligations of Comdata under the leases governing the Leased Assets and the Contracts, including payment of all related expenses attributable to periods on or after the Commencement Date, to the extent that such obligations were disclosed to ISSC on or before the Commencement Date through receipt by ISSC of a copy of the relevant documents. Comdata warrants that all obligations with respect to such leases and the Contracts accruing prior to or attributable to periods prior to the Commencement Date have been satisfied. Comdata shall, upon the request of ISSC from time to time, with the agreement of Comdata and to the extent permitted by the applicable agreement, terminate any leases or Contracts and ISSC shall reimburse Comdata for any termination charges or penalties. In the event Comdata does not agree to such termination of any leases or contracts, then Comdata shall reimburse ISSC for any increase in costs or lost savings ISSC would incur as a result of such action.


3.5 Software


As of the Amended Commencement Date, Comdata will make the Software available to ISSC for the purpose of providing the Services.
5 As of the Amended Commencement Date, ISSC will continue to be responsible for managing the Applications Software Licenses and Systems Software Licenses listed in Section F-3 of Schedule F and for paying all related expenses, including the Applications Software maintenance fees and Systems Software maintenance fees, that are attributable to periods on or after the Amended Commencement Date. Subject to Comdata obtaining any Required Consents in accordance with Section 3.6 ISSC will comply with all obligations of Comdata, including those of nondisclosure, under any such Applications Software License or Systems Software License to the extent such obligations were disclosed to ISSC on or before the Amended Commencement Date through receipt by ISSC of a copy of the relevant documents. Comdata warrants that all of its obligations with respect to such Software Licenses accruing prior to the Amended Commencement Date have been satisfied.


As of the Amended Commencement Date, Comdata will continue to be responsible for managing the DSM Software Licenses listed in Schedule C and for paying all related expenses, including the DSM Software maintenance fees, that are attributable to periods on or after the Amended Commencement Date. Subject to Comdata obtaining any Required Consents in accordance with Section 3.6, and excluding Comdata's responsibilities for management and payment as stated heretofore, ISSC will comply with all obligations of Comdata, including those of nondisclosure, under any such DSM Software License to the extent such obligations are disclosed to ISSC, before the end of the Transition Period as defined in Schedule H, through receipt by ISSC of a copy of the relevant documents. Comdata warrants that all obligations with respect to such Software Licenses have been satisfied.


3.6 Required Consents


Comdata shall be responsible for obtaining all Required Consents necessary to enable ISSC to use the Software, Leased Assets and services provided by the Contracts.


Comdata shall bear the costs, if any, of obtaining all Required Consents. In the event that any Required Consent is not obtained with respect to the Software Licenses, leases governing the Leased Assets or Contracts, then, unless and until such Required Consents are obtained, the Parties shall cooperate with each other in achieving a reasonable alternative arrangement for Comdata to continue to process its work with minimum interference to its business operations.


3.7 Joint Verification


During the 90 day period following the Effective Date, ISSC and Comdata reserve the right to inventory, validate and update, any information that is reflected in or omitted from the attached Supplement or Schedules. If discrepancies are detected during such period, there shall be an equitable adjustment to the Annual Services Charge. If either Party disputes the discrepancy then the Parties will submit the matter to the Joint Advisory Committee for dispute resolution as specified in Section 16 of this Agreement.


3.8 Other Obligations


Beginning on the Amended Commencement Date, Comdata will not enter into any new or amend, extend or terminate any existing agreements or arrangements, written or oral, affecting or impacting upon Affected Employees as defined in Schedule Q, Acquired Assets, leases governing the Leased Assets, Software Licenses, Contracts or Services as specified in the various Schedules to this Agreement, without the prior written consent of ISSC.


3.9 Comdata Approvals and Notification


For those areas of the Services where Comdata:


a) has reserved right-of-approval or consent or agreement;


b) is required to provide notification; and/or


c) is required to perform a responsibility set forth in this Agreement upon which ISSC's performance is dependent; and such approval, consent, notification or performance is delayed or withheld by Comdata without authorization or right beyond the period provided in this Agreement or the Schedules and such delay or withholding is not caused by ISSC and affects ISSC's ability to provide the Services under this Agreement, then Comdata will relieve ISSC of the responsibility for that portion of the Services and Comdata will reimburse ISSC for all additional expenses, if any, incurred during such period as a result thereof.


For purposes of this Agreement, if a time period is not specified for any such approval, consent, agreement, notification or performance, then such time period shall be deemed to be not greater than five business days.


4.0 ISSC Responsibilities


4.1 ISSC Personnel


ISSC will designate, prior to the Amended Commencement Date, an ISSC Project Executive to whom all Comdata's communications may be addressed and who has the authority to act for and bind ISSC and its subcontractors in connection with all aspects of this Agreement.


4.2 Standards


Subject to the terms of this Agreement, ISSC agrees that its performance of the Services will meet or exceed each of the applicable Performance Standards.


4.3 Efficient Use of Resources


ISSC shall take reasonable action, taking into account economic circumstances, to efficiently use resources that will be chargeable to Comdata under this Agreement including, but not limited to: a) making schedule adjustments (consistent with Comdata's priorities and schedules for the Services and ISSC's obligation to meet the Performance Standards);
6 b) delaying the performance of noncritical functions within established limits; and c) tuning or optimizing the systems used to perform the Services.


4.4 Technological Improvements


In the event that there is a technological improvement that provides opportunities for additional savings, the Party identifying such improvement will request that ISSC perform a preliminary savings analysis. The Parties will then jointly review the results of this preliminary analysis and discuss the impact on each Party's performance hereunder, including any new hardware and/or software, other capital, one-time charges, or changes to other resources that may be required to take advantage of such technological improvements. If the Parties agree to implement changes in the Services rendered by ISSC hereunder to take advantage of some or all of such technological improvements, then the Parties will Jointly prepare a technology implementation plan that defines such changes and the timing and cost of their implementation, and such changes will be treated as Replacement Services, subject to Sections 6.5.a and 6.5.b. All activities spent by ISSC in performing the foregoing shall be chargeable against the Enhancement Baseline specified in the Supplement.


Comdata will pay for any implementation costs related to Comdata's responsibilities as specified in the technology implementation plan.


Comdata may choose to independently implement such changes referenced above.


4.5 Management and Control a) Within 180 days after the Amended Commencement Date, ISSC shall update the Procedures Manual to include the operating processes and procedures for the DSM Environment. 1) ISSC shall periodically update the Procedures Manual to reflect any changes in the operations or procedures described therein. Comdata shall have the right at any time during the term of this Agreement, upon reasonable notice and during normal business hours, to inspect the Procedures Manual, and ISSC will give due consideration to any reasonable suggestions of Comdata relating thereto. 2) ISSC shall perform the Services in accordance with the Procedures Manual. b) Commencing within 180 days after the Amended Commencement Date, ISSC will provide to Comdata a set of periodic reports which have been revised to include report data on the DSM Environment. At a minimum, these reports will include the following: 1) a monthly performance report documenting ISSC's performance with respect to the Performance Standards; 2) a monthly project schedule report; 3) a monthly change report setting forth a record of all Data Center, Data Network, and DSM Environment changes performed during the previous month; and 4) a monthly report describing Comdata's utilization of each resource category. ISSC will provide Comdata with such documentation and other information as may be reasonably requested by Comdata from time to time in order to verify the accu ...