Master Software Sales and Services Agreement (Americas)

Exhibit 10.1.22

Master Software Sales and Services Agreement (Americas)

The Effective Date of this Master Software Sales and Services Agreement (“Agreement”) is the later date of execution of this Agreement unless otherwise agreed here as the 19 day of May 2004. For due consideration and for the mutual benefit of the executing parties, including SunGard Sherwood Systems (US) Inc. (“Sherwood”) and the customer named in this Agreement (“Customer”), Customer hereby contracts to license Sherwood software as set forth in the charges schedule (“Order Form”) to this Agreement and documentation as defined in the Software License hereto and any related service/s as set forth in any attached Schedules and Sub-Schedules to this Agreement (all collectively referred to as the “Product”) and the parties agree the following:

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(Master Software Sales and Services Agreement — Americas)

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Master Software Sales and Services Agreement (Americas)

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Master Agreement Execution Page (Americas)

CUSTOMER’S ADDRESS FOR PRODUCT DELIVERY:

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Schedule 1. Software Offering — ProCede^TM

Each Sherwood International Inc. (“Sherwood”) Customer has different software requirements. Sherwood can offer a suite of software products to meet needs of Customer; the following Schedule sets forth standard Sherwood terms and conditions for Sherwood’s ProCede™ software product, which is offered to Customer as specified on the Sherwood Order Form and/or Change Order Form.

Offering Overview: ProCede™

ProCede™ is a ceding administrative system running in a client-server environment.

Administration by the End-user is done on the client-server platform in a windows-based graphical environment. This includes the administering of business partners and contacts, reinsurance contracts, accounting, cash application and claims.

Batch processes such as bridges into the application for inward systems data, extraction of data from the application for use by the reinsurance attachment and calculation module, deposit premium, unearned premium calculations are done on an application server or a main processing workstation.

The ProCede™ application comprises functionality in the following areas; this is a summary only, and further details of functional specifications are in Sherwood’s Documentation for the ProCede™ application:

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(Software offering — ProCede™)

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Schedule 1. Software Offering — FrontTier^TM

Each Sherwood Customer has different software requirements. Sherwood can offer a suite of software products to meet the exact requirements of Customer; the following Schedule sets forth standard Sherwood terms and conditions for Sherwood’s FrontTier™ system software product, which is offered to Customer as specified on the Sherwood Order Form and/or Change Order Form/s.

Offering Overview: the FrontTier™ system

The FrontTier™ system is a Sherwood solution for the property and casualty insurance market. The FrontTier™ system consists of:

The FrontTier™ System Architecture and Development Toolset comprises the “backbone” of any application built using the FrontTier™ Architecture, and a toolset which can be used to enhance existing system functionality or to create new objects.

The FrontTier™ Base Business Objects include processes, user interfaces, external interfaces, batch processes, and database storage areas which may form part of the Customer’s final FrontTier™ solution. The FrontTier™ Base Business Objects section is made up of the following areas:

Full details of functional specifications are in Sherwood’s Documentation for the FrontTier™ system as set out in the “SunGard Sherwood Systems FrontTier™Feature List”, dated January 21, 2004, version 1.0.

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SCHEDULE 2 MUTUAL CONFIDENTIALITY AGREEMENT

The parties to this Agreement have determined to establish terms governing the confidentiality of certain information one party (“Owner”) may disclose to the other party (“Recipient”). In consideration for each party agreeing to disclose such information to the other party, the parties to this Agreement agree as follows:

1. For purposes of this Agreement, “Confidential Information” shall mean information, data or material deemed proprietary by the Owner and which may be marked, or, if orally transmitted, designated as “Confidential” by the Owner and not generally known by the public or by parties which are competitive with or otherwise in an industry, trade or business similar to Owner. Confidential Information also includes any information described above which the Owner obtains from another party and which the Owner treats as proprietary or designates in writing as Confidential Information, whether or not owned or developed by the Owner. Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, algorithms, documentation, user manuals, diagrams, flow charts, consulting methods and techniques, research, development, processes, procedures, “know-how”, marketing techniques and materials, marketing and development plans, market analysis, customer names and other information related to customers, price lists, pricing policies and financial information, methods of production, use, operation and application, invented, owned or developed by the Owner as it applies to and is incorporated in Owner’s proprietary software, and any patents, copyrights, trademarks existing now, for which applications may be pending or hereafter made, acquired and granted for any of Owner’s software and any improvements, enhancements or modifications thereto, Owner’s physical security system, access control systems, specialized recovery equipment and techniques, and the details of the Owner’s computer operations and recovery procedures. Confidential Information shall further include data regarding business practices, pricing, product philosophy, position relative to competitors, and review of actual deliverables of consulting projects.

2. Recipient will use the same reasonable efforts to protect such Confidential Information of the Owner as it uses to protect its own proprietary information and data. Disclosure of the Confidential Information shall be restricted to those individuals who are participating in the proposed transaction on a “need to know” basis and who are advised of this Agreement and agree to be bound by its terms, or as otherwise may be required by law.

3. Recipient shall not make any reproductions, disclosure or use of the Confidential Information for its own benefit to the detriment of the Owner except as follows:

4. Recipient will not directly or indirectly attempt to reverse engineer, decrypt, disassemble, decompile, decipher, reconstruct or re-orient the circuit design, algorithms, logic or program code in any of the Owner’s products, models or prototypes which contain Confidential Information and which are provided pursuant to this Agreement. The Recipient will not receive any rights by implication or otherwise in any Confidential Information received by Recipient under this Agreement.

5. The limitations on reproduction, disclosure or use of the Confidential Information shall not apply if, and neither party shall be liable for reproduction, disclosure or use of Confidential Information with respect to which, any of the following conditions exist:

the Recipient, or has been lawfully received by the Recipient from other sources, provided such other source did not receive it due to a breach of an agreement with the Owner, and Recipient knows of such breach.

(b) If, subsequent to the receipt thereof under this Agreement, (i) it is published by the Owner or is disclosed by the Owner to others without a restriction on its use and disclosure, or (ii) it has been lawfully obtained by the Recipient from other sources which the Recipient reasonably believes lawfully came to possess it.

(c) If the Recipient is required by law to make such disclosure, provided a reasonable opportunity is first provided to the Owner to contest such disclosure.

(d) Information publicly known that is generally employed by the trade, business or industry at or after the time the Recipient first learns of such information, or generic information or knowledge which the Recipient would have learned in the course of its work in the trade, business or industry, shall not be deemed part of the Confidential Information.

6. Because of the unique nature of the Confidential Information, the Recipient understands and agrees that the Owner may suffer irreparable harm in the event that the Recipient fails to comply with any of its obligations hereunder and that monetary damages may be inadequate to compensate the Owner for such breach. Accordingly, the Recipient agrees that the Owner, in addition to any other remedies available to it under this Agreement or at law or in equity for actual damages, shall be entitled to seek remedies of specific performance, injunctive relief and other equitable relief to enforce the terms of this Agreement.

7. During the discussions contemplated by this Agreement, neither the Owner nor its affiliates will disclose to the Recipient or its affiliates any information regarding United States patents which may be held or applied for by or for the benefit of the Owner. To the extent that the Owner or its affiliates wishes to disclose any patent information to the Recipient or its affiliates, Owner and Recipient will first enter into an amendment to this Agreement which contains a provision relating to the terms, conditions and legal effect of such disclosure.

8. The obligations under this Agreement shall continue for so long as the Owner treats the Confidential Information disclosed to Recipient hereunder as confidential. Upon request, each party agrees to promptly return all originals and copies of any of the Confidential Information either may have obtained from the other.

9. The Owner shall not have any liability or responsibility for errors or omissions in, or any business decisions made by Recipient in reliance on, any Confidential Information disclosed under this Agreement.

10. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all prior representations and understandings, whether oral or written,

IN WITNESS WHEREOF, the parties hereunto set their respective hands and seals, on the dates hereinafter set forth below.

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save that nothing in this Agreement shall limit or exclude liability for fraud or fraudulent misrepresentation. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.

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Schedule 3 Software License Agreement (Americas)

This software license agreement (“License”) is effective upon SunGard Sherwood Systems (US) Inc. (“Sherwood”) Delivery of Product. Product is provided to Customer under the terms of this License and as set out in the applicable Sherwood Master Software Sales and Services Agreement (“Master”) (together, this License, a Schedule to the Master as defined herein and any other Schedule to the Master, and the Master, are the “Agreement”). Definitions hereunder are as defined in the Agreement.

Terms defined in the Master have the same meanings in this License. In addition,

“Documentation” means any documentary guide to Product and any other literature relating thereto supplied by Sherwood (or an Indirect Supplier) from time to time in any form whatsoever including but not limited to hard copy, electronic mail, and/or any other form of communication (whether in use on the date of this Agreement or not);

“Intellectual Property Right” means (a) patents, trade marks, service marks, registered designs, applications for any of those rights, utility models, trade and business names (including internet domain names and e-mail address names), unregistered trade marks and service marks, copyrights, know-how, database rights, rights in designs and inventions; and (b) rights of the same or similar effect or nature as or to those in paragraph; and (c) in each case in any jurisdiction;

“Key” means code which may be given to Customer by Sherwood to enable Product to provide the level of functionality for which Customer has paid License Fees;

“License Fee” means fees payable by Customer in respect of and in due consideration of Customer’s license rights to use Product as set in the Sherwood Order Form;

“Master” means the Sherwood Master Software Sales and Services Agreement to which this License is a Schedule and any and all other Schedules under the same.

2.1 In consideration either of Customer’s payment of License Fees to Sherwood or the Customer lawfully acquiring the Product from a reseller, systems integrator, channel partner, distributor, and/or other third party (referred to herein as an “Indirect Supplier”), Sherwood hereby grants Customer and its subsidiaries, affiliates, non-exclusive, non-transferable license to use Product in machine-readable object code form only (except as allowed under this Agreement (“License”); this License authorises use strictly in accordance with Agreement. Customer may grant access to the Product to its agents, and other representatives or contractor(s) so long as such contractor(s) are working directly for and on behalf of Customer within the scope of this agreement and agree to the confidentiality obligations of Sherwood contained herein.

2.2 No rights or Licenses are granted to the Customer expressly, by estoppel, or by implication, with respect to any proprietary information or patent, copyright, trade secret, or other Intellectual Property Right owned or controlled by Sherwood, except as expressly provided for herein, or on the Order Form.

2.3 Documentation is provided solely to support Customer’s authorised use of Product in accordance with the Agreement. Except as permitted in Clause 3.1 or 4, Customer shall not use, copy, modify or distribute Documentation, or any copy, adaptation, transcription, or merged portion thereof.

(a) not use Product except in accordance with Documentation;

(and such Documentation relating to Customer implementation shall be allowed to be distributed to Customer’s clients and agents provided that the Customer’s clients and agents comply with the confidentiality obligations contained herein and shall not further distribute).

(b) not copy or, modify, or distribute Product (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, other than for back-up purposes expressly permitted by this Agreement, or for internal use where the appropriate License Fee is paid;

(c) not copy configuration files generated by any Sherwood Product onto devices or managed network interfaces other than those expressly consented to by Sherwood by notice in writing; or

(d) transfer, lease, assign, or sub-license Product without Sherwood’s prior written consent and such consent shall not be unreasonably withheld or delayed.

3.2 Upon written notice from Sherwood and failure of Customer to cure within thirty (30) days, if the Customer uses, copies, or modifies Product or transfers possession of any copy, adaptation, transcription, or merged portion of Product to any separate company in any way not expressly authorised by Sherwood in writing, Customer’s License hereunder will automatically terminate.

3.3 Customer will ensure Sherwood has access to Customer’s premises on five (5) days’ prior notice and is able to inspect Product in any reasonable manner during regular business hours to verify Customer’s compliance with the terms hereof. Where Sherwood has reason to believe Customer may be using Product in breach of Agreement, Sherwood may obtain (and Customer shall grant) access to Customer’s premises and to Product with five (5) days’ notice to conduct an audit. If an audit demonstrates a breach of Agreement, Customer shall pay the costs of any audit and increased License Fee to reflect the actual number of users involved, reasonably backdated, together with any interest due under the Agreement.

3.4 Product is intended to operate in accordance with Documentation and Sherwood’s instructions from time-to-time. Any failure by Customer strictly to comply with the same (“Unauthorised Use”) or with the Non-Disclosure Agreement (“Unauthorised Disclosure”) could lead to severe damage to Customer, a third party, and/or Sherwood, and will constitute a breach of the Agreement. Customer acknowledges the possibility of such damage and hereby agrees that any Unauthorised Use shall be at Customer’s sole risk.

3.5 Save strictly as expressly permitted under applicable law or this Agreement, Customer shall not reverse engineer, de-compile, disassemble, or otherwise make any attempt to derive the source code to Product. Any attempt to do so will automatically terminate all of Customer’s rights and License under the Agreement.

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Customer may make a reasonable amount of copies of Product in machine-readable, object code form (with respect to Documentation, in paper form), for non-productive back-up purposes only, provided that Customer reproduces and includes Sherwood’s copyright notice and proprietary legend on each back-up copy. Each back-up copy must be stored in a safe and secure location accessible only to Customer. All copies of Product must be accounted for upon Sherwood’s request. Customer shall instruct its employees, agents, and contractors that making unauthorised copies of Product or any portion thereof, or permitting use of Product other than in accordance with the Agreement, constitutes a breach of copyright law, this License, and the Agreement.

Nothing in this Agreement shall operate to transfer any Intellectual Property Rights or other interest in Product to Customer. Customer agrees that it neither owns nor hereby acquires any claim or right of ownership to Product or Documentation or to any related Intellectual Property Right. The Customer owns only magnetic tape, CD ROM, or other physical media on which Product is recorded or fixed. Sherwood retains all right, title, and interest in and to (i) Documentation, and (ii) all copies of Product recorded on the original media, and (iii) all subsequent copies of Product at all times regardless of the form or media in or which the original or other copies may subsequently exist. This Agreement is not a sale of the original or any subsequent copy of Product. Customer shall use its best efforts to prevent and protect the contents of Product from unauthorised disclosure, use, dissemination, and/or copying. For the avoidance of doubt it is understood and agreed that each screen will include the appropriate copyright protection, and Sherwood logo as mutually agreed by the parties.

Customer acknowledges that any Keys provided to Customer, and ideas, principles, and algorithms which underlie or are contained within Product, including any interface information or information required for interoperability, are (without limitation or exception) all confidential information and valuable trade secrets of Sherwood and subject to the confidentiality restrictions in the Non-Disclosure Agreement.

7.1 Sherwood warrants that for a period of one (1) year after Delivery (the “Warranty Period”), the media on which Product is delivered (if any) will be free of defects in materials or workmanship (provided it is properly used in accordance with this Agreement). If a defect in any CD ROM occurs during such period the Customer may return the CD ROM (or other media on which Product was supplied) and Sherwood will replace it.

7.2 Sherwood warrants that it has the right to license to Customer the use of the Product. Sherwood warrants that the use of the Product by Customer will not infringe any UK or US patent, copyright or other intellectual property right of any third party.

7.3 Both parties respectively warrant that it is a corporation duly incorporated, validly existing and in good standing under the laws of a state of the United States; that it has all the requisite corporate power and authority to execute, deliver, and perform this Agreement; that it has duly authorized execution, delivery, and performance of this Agreement; that it has and shall maintain any governmental license, authorization, or qualification required for it to perform this Agreement; no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained for it to execute, deliver and perform this Agreement; and to its knowledge, there is no outstanding litigation, arbitrated matter, or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a material adverse effect on its ability to fulfil its respective obligations under this Agreement.

7.4 Sherwood warrants that Product shall materially operate and conform to the specifications, functions, and other descriptions and standards applicable thereto as set forth in the Critical Functionalities (as defined herein). Any unauthorized changes to the Product shall void the warranty provided under this subsection with respect to that portion of the Product modified. If, at any time, Customer discovers one or more defects or errors in the Product such that the Product fails in any material respect to conform with the provisions of any warranty contained in this subparagraph, Sherwood shall correct such defect, error, or non-conformity by, among other things, supplying Customer with such corrective codes and making such additions, modifications, or adjustments to the Product as may be necessary to keep the Product in operating condition in conformity with the Critical Functionalities.

7.5 Sherwood warrants to Customer that it has the full legal right to grant to Customer the license granted under this Agreement, and that the Software and Documentation, as and when delivered to Customer by Sherwood and when properly used for the purpose and in the manner specifically authorized by this Agreement, do not infringe upon any United States patent, copyright, trade secret or other proprietary right of any Person. Sherwood shall defend and indemnify Customer against any third party claim to the extent attributable to a violation of the foregoing warranty. Sherwood shall have no liability or obligation under this Section 7 unless Customer gives written notice to Sherwood within ten (10) days (provided that later notice shall relieve Sherwood of its liability and obligations under this Section 7 only to the extent that Customer is prejudiced by such later notice) after any applicable infringement claim is initiated against Customer and allows Sherwood to have sole control of the defence or settlement of the claim. If any applicable infringement claim is initiated, or in Sherwood’s sole opinion is likely to be initiated, then Sherwood shall have the option, at its expense, to:

(a) modify or replace all or the infringing part of the Software or Documentation so that it is no longer infringing, provided that the Software functionality does not change in any material adverse respect; or

(b) procure for Customer the right to continue using the infringing part of the Software or Documentation; or

(c) remove all or the infringing part of the Software or Documentation, and refund to Customer the corresponding portion of the initial license fee paid by Customer to Sherwood under this Agreement, less a reasonable rental charge equal to one-sixtieth (1/60) of the initial license fee for each month of use, in which case this Agreement shall terminate with respect to the Software or part thereof removed.

7.6 Customer material. Customer warrants to Sherwood that Customer has the full legal right to grant to Sherwood the right to use the designs, plans, specifications or other materials provided by or on behalf of Customer for inclusion in the Software or the Documentation (“Customer Material”) and that the Customer Material does not infringe upon any United States patent, copyright, trade secret or other proprietary right of any Person. Customer shall indemnify and defend Sherwood (and any SunGard Affiliates providing software or services under this Agreement) against any third party claim to the extent attributable to a violation of the foregoing warranty Customer shall have no obligation with respect to the indemnity in this Section 7 unless Sherwood gives written notice to Customer within ten (10) days) (provided that later notice shall relieve Customer of its liability and obligations under this Section only to the extent that Customer is prejudiced by later notice) after any applicable

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infringement claim is initiated against Sherwood and allows Customer to have sole control of the defence or settlement of the claim. If any applicable infringement claim is initiated, or in Customer’s sole opinion is likely to be initiated, then Customer shall have the option, at its expense, to:

(a) modify or replace all or the infringing part of the Customer Material so that it is no longer infringing, provided that the Customer Material’s functionality does not change in any material adverse respect; or

(b) procure for Sherwood the right to continue using the infringing part of the Customer Material; or

Customer hereby grants unlimited access to SunGard of Customer Material...

7.7 Product is provided “AS IS” without warranty of any kind unless set out in this clause 7. All other warranties other than 7 herein as to Product, whether statutory, express, or implied, are hereby expressly excluded to the fullest extent permitted by law.

7.8 Remedies in Clauses 7 shall be Customer’s sole remedies with regard to any aspect of Product.

8 Default

8.1 Should Customer fail to pay any undisputed fees or charges due under this Agreement or fail to materially comply with any other obligation under this Agreement or any other agreement with Sherwood (other than a failure to pay any amount payable with respect to a Renewal Maintenance Term) or a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of Customer’s assets, or undertaking or a resolution or petition to wind up Customer is passed or presented (other than for purposes of a solvent amalgamation or reconstruction), or if any circumstances arise which entitle a court or a creditor to appoint a receiver, administrative receiver, or administrator, or to present a winding-up petition or make a winding-up order (or equivalent events occur in other jurisdictions), this shall be considered a default by Customer and Sherwood may, at its option, in addition to other available remedies, terminate this Agreement and/or disable Product, provided that it first gives Customer thirty (30) days’ prior notice in order to permit the Customer to cure Customer’s default.

8.2 Customer shall indemnify and hold Sherwood harmless from any loss, costs, damages, expenses, or liability that may arise out of or in connection with any breach by Customer of this Agreement.

9 Termination

9.1 It is understood and agreed that Customer has the right to terminate this Order Form and Agreement without penalty at anytime up to 15 July 2004 if Customer does not raise appropriate funding levels (estimated at $200,000,000) to operate in a public or private equity financing. It is understood and agreed that all monies paid to Sherwood prior to the said termination, including but not limited to $75,000 and any Services provided by Sherwood are non refundable.

Upon delivery of the Product, Company has thirty (30) days to notify Sherwood in writing that the Product does not materially conform to the Critical Functionalities (“Material Defects”). Upon such notification, Sherwood has one hundred and eighty (180) days to correct the Material Defects. If, in the opinion of Customer (based on commercially reasonable standards), the Product continues to not materially conform to the Critical Functionalities, Customer may terminate this Agreement within thirty (30) days written notice.

9.2 Upon termination of this Agreement (whether under this License, the Master, or otherwise), but for the avoidance of doubt not upon termination of Maintenance services), Customer’s License will automatically terminate, and Customer shall within fifteen (15) days of termination return or destroy, as requested by Sherwood, all copies of Product in its possession or control (whether modified or unmodified), and all other materials pertaining to Product, including all copies thereof. Customer shall certify its compliance with such requirement upon Sherwood’s request.

9.3 Clauses 1, 5, 6, 9 and 10 shall survive termination of this Agreement for any reason whatsoever.

10. Escrow

If and only if (a) a voluntary agreement is approved, or an administration order is made, or a receiver or administrative receiver is appointed over any of Sherwood’s assets, or undertaking or a resolution or petition to wind up Sherwood is passed or presented (other than for purposes of a solvent amalgamation or reconstruction), or if any circumstances arise which entitle a court or a creditor to appoint a receiver, administrative receiver, or administrator, or to present a winding-up petition or make a winding-up order (or equivalent events occur in other jurisdictions), the bankruptcy or insolvency of Sherwood occurs, or (b) the material diminution in functionality of a future release of one or more of the modules comprising the Product after written notice by and failure by Sherwood to materially cure such default within ninety (90) days of such notice, or (c) a bug in the Product that causes a material negative adverse effect on Customer’s business that is not materially fixed by Sherwood after ninety (90) days written notice from Customer or if the following three events have occurred: (i) Sherwood has discontinued providing support services for the Software to Customer base generally, including the ongoing support services provided by Sherwood to Customer under this Agreement, (ii) Sherwood has not designated an assignee (which Customer has consented to in accordance with Clause 5 of the Master ) to assume Sherwood’s obligations to provide such ongoing support services, and (iii) such discontinuation occurs during any period of time when Customer fulfils its obligation of payment of undisputed Annual Support Fees according to the Order Form, or then, upon a termination of the ongoing support services, Customer may use the Source Code to make modifications, revisions and updates to the Source Code which are/as reasonably necessary to support the Customer’s continued use of the Software in accordance with this Agreement. Without limiting Customer’s obligations under this Clause of this Agreement, Customer shall keep the Source Code in a secure tape vault or vault-like (which may include a vault-like environment on a hard-drive or server located on Customer’s premises) environment on its premises and shall take all steps necessary to protect the confidentiality of the Source Code, including, without limitation, following the security procedures that Customer would follow with respect to its own highly confidential information and any additional security measures reasonably requested by Sherwood. Notwithstanding any provision of this Agreement to the contrary, Customer shall not sell, market, sublicense, license, distribute or otherwise grant to any person, company or entity including any affiliate, outsourcer, vendor, consultant or partner, any access to or right to use the Source Code or any version of the Source Code. However it is understood and agreed that Customer may need to allow a sub-contractor access to the Source Code but such sub-contractor will be under the same obligation contained herein, including but limited to the confidentiality provisions. Customer’s permitted use of the Source Code shall be at Customer’s sole risk and expense and Sherwood shall

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have no liability under any provision of this Agreement with respect to any performance problem, claim of infringement or other matter to the extent attributable to the use or any modifications, whether made intentionally or accidentally, of the Source Code by or through Customer.

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Schedule 4. Support and Maintenance Agreement

Each Sherwood Customer has different maintenance requirements. Sherwood can tailor maintenance services to meet exact requirements of Customer; the following however sets forth standard Sherwood maintenance term and conditions and Customer’s exact order for maintenance will be as specified on the Sherwood Order Form and/or Change Order Form.

1. Definitions

“End-Users” are Permitted Persons in numbers only as specified in Sherwood Order Form or Change Order Form and subject to audit.

“Initial Maintenance Term” is an initial minimum period of twelve (12) months commencing from Effective Date of the execution of a Sherwood Order Form and/or Change Order Form

“Location” is the Customer facility/ies indicated on the Sherwood Order Form or Change Order Form as appropriate for Product and service/s Delivery.

“Maintenance” is the services provided by Sherwood to Customer in accordance with this Agreement.

“Nominated Customer Contacts” are defined as technical contacts within Customer’s organisation who have been declared by Customer and accepted by Sherwood as being eligible to use Sherwood’s Maintenance.

“Permitted Persons” are employees of Customer who work at Customer Location that are aware of the terms and conditions of this Schedule and the Agreement it falls under.

“Renewal Maintenance Term” is an additional consecutive periods of twelve (12) months commencing from expiry of the Initial Maintenance Term.

2. Warranty Provisions

Except as expressly set out herein, no representation, warranty, condition, undertaking, or other term, whether express or implied, arising by statute or otherwise (including but not limited to any implied representations, warranties, conditions, undertakings, or other terms as to satisfactory quality or fitness for a particular purpose), as to condition, quality, performance or suitability of Sherwood Maintenance or any results of Maintenance service/s is given or assumed by Sherwood and all such representations, warranties, conditions, undertakings, or other terms are hereby excluded except to the extent such exclusion is prohibited by law.

3. Term and Termination

Beginning on the Effective Date and continuing for the Initial Maintenance Term Sherwood shall provide the Maintenance services set forth in the Order Form for the maintenance fees set forth in the Order Form. Thereafter, Sherwood shall continue to offer such Maintenance services during the Renewal Maintenance Term at the fees stated in this Agreement, unless Customer gives Sherwood notice of its intent to terminate Maintenance at least ninety (90) days before the end of the Initial Maintenance Term or any Renewal Maintenance Term. Maintenance fees shall be as set forth in the Order Form. On an annual basis, by giving at least ninety (90) days prior written notice to Customer, Sherwood may increase the maintenance fees payable under this Agreement; provided that the increase in the maintenance fees shall not exceed 5% .

In the event either party has committed a material breach of its obligations under this Maintenance Agreement (other than Customer’s failure to pay any undisputed amount payable with respect to a Renewal Maintenance Term) and shall not have remedied it within thirty (30) days of receiving written notice from the first mentioned party setting out the breach and requiring its remedy within such thirty (30) day period, the non-breaching party may then terminate with seven (7) days written notice following the party in breach not responding within the period set forth herein.

Upon the effective date of termination of Maintenance services (“Support Termination Date”), (i) Sherwood shall discontinue providing all on-going Maintenance services, including Sherwood’s obligations under this Maintenance Agreement, (ii) any Sherwood warranties under this Agreement shall cease to apply for the period after the Support Termination Date, and (iii) Customer shall be entitled to continue to use the Product until the expiration or termination of the Term that is applicable to the Product and Sherwood shall have no liability with respect to Customer’s use of the Product after the Support Termination Date. Any termination of this Maintenance Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Sherwood reserves the right in its absolute discretion to suspend the supply of the Maintenance services where payment by the Customer of any undisputed amount due to Sherwood (whether under this or any other agreement) is overdue and Sherwood shall have no liability with respect to Customer’s use of the Product until all undisputed past due amounts and any applicable reinstatement fees are paid in full.

4. Customer Obligations

In order to enable Sherwood to perform Maintenance, Customer undertakes and agrees at its own expense to: provide such access to Customer’s premises and computer and such office accommodation and other facilities and resources as may reasonably be required by Sherwood to properly offer Maintenance; provide Sherwood promptly with all information and documentation reasonably required by Sherwood; ensure that all information provided by Customer is correct and accurate in all material respects; ensure in the interests of health and safety that Sherwood’s personnel, in the event that in the offering of Maintenance on Customer premises, they are at all times familiar with Customer’s premises and safety procedures; and make available appropriate staff, Nominated Contacts or otherwise, who are familiar with Customer’s programs and/or applications and procure that its staff co-operates with Sherwood.

It is Customer’s sole responsibility to ensure that all service/s obtained from third parties (and not provided by Sherwood or its assignees) meet Customer requirements (including but not limited to specification, fitness for purpose, operation, use) whether recommended by Sherwood or not. Customer will be liable to reasonably compensate Sherwood for any additional expense incurred by Sherwood through the Customer’s failure to follow the reasonable instructions of Sherwood’s staff, or through the Customer’s failure to materially comply with provisions herein.

5. Use of Experience/Information Gained

Nothing in this Agreement shall prevent Sherwood from using any experience acquired or developed during the performance of this Agreement in the provision of services for other Customers or on its own behalf, unless expressly provided for in the mutually agreed work orders. Any information provided by Sherwood to Nominated Contacts/Customer as to the expected results of the provision of Maintenance is given for the purposes of guidance only.

6. Core Maintenance Service

Sherwood shall use best efforts to address any functional anomaly as may be identified by Customer, within such period as may be reasonable having regard to the nature, seriousness, and operational significance of the reported non-conformity. The foregoing shall not include maintenance service/s in respect of: defects resulting from any modifications of the current release of the Sherwood software in question made by any entity other than Sherwood; any version of Sherwood software other than the then current release; use of a current release other than in accordance with instruction/s, written or otherwise, of Sherwood; non-conformities caused by use of Sherwood current release on other than specified and agreed equipment; operator error/s; any bespoke work carried out in relation to Sherwood software.

Sherwood will: notify Customer of any corrections and make the same available to the Customer to allow a reasonable time to test or agree to the correction before it becomes operational; handle all telephone enquiries through Sherwood’s Global Help Desk; ensure Maintenance response and correction service shall be available during Support Hours for Customer Location in question; undertake escalation procedures to ensure the allocation of appropriate resources and skills having regard to the technical needs of the call.

STRICTLY CONFIDENTIAL
Copyright SunGard 2004

(Support and Maintenance Agreement)

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Sherwood shall make available quarterly or on reasonable demand an outstanding corrections list for Customer. Non-conformities shall be categorised as follows:

The Customer shall: use only Sherwood’s current release of software unless otherwise agreed; ensure that software is used in a proper manner by competent trained employees only or by persons under their direct supervision; not request,, permit, or authorise anyone other than Sherwood to provide any Maintenance services in respect of the software; promptly supply to Sherwood an example of the output or processing in which any non-conformity has occurred, together with related input and a detailed and complete explanation of the circumstances; co-operate with best effort with Sherwood’s personnel in the diagnosis of any non-functionality; in order to remedy any call, comply with all instructions issued by Sherwood relating to the operation of software including, without limitation, procedures relating to the input of data.

Customer will pay Sherwood at standard Sherwood consultancy rates as Sherwood may amend from time-to-time for any work carried out in conjunction with a suspected non-functionality which Sherwood determines (such determination being reasonable in the circumstances) after investigation by Customer and Sherwood: did not exist; did not fall within the definition/s stated in this provision; was attributable to Customer failing to comply with the instructions of Sherwood; arose in any of the circumstances set out above.

7. Enhancements

Sherwood may supply any enhancement and update to the current release of Sherwood software as it may produce from time-to-time. In conjunction with the same, Sherwood will revise and reissue where appropriate related documentation. Customer may be entitled to the provision of such software enhancements as may be offered by Sherwood to the Customer as optional and chargeable enhancements.

If the Customer requests Sherwood to provide advice, consultancy, amendments, or enhancements to Sherwood software, the supply of such service/s shall be subject to the provisions of an executed Sherwood Order Form and/or Change Order Form and such terms and conditions as may be applicable under the same.

8. Releases

Sherwood shall support the then current release until a new software release is made available to the Customer under this Schedule for Maintenance. Following the Delivery of a new software release Sherwood shall maintain the preceding release for a period of five (5) months unless otherwise mutually agreed in writing by and between the parties. Customer shall make the new Sherwood software release operational during said period. If Customer fails so to do without the agreement of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ shall have no further obligation to supply Maintenance until such time as the new release is made operational by Customer; notwithstanding, Customer’s payment obligations hereunder shall not be affected.

STRICTLY CONFIDENTIAL
Copyright SunGard 2004

(Support and Maintenance Agreement)

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SCHEDULE 5. ENHANCED SUPPORT AGREEMENT

Provided that Customer has subscribed to Maintenance in Schedule 4, this Schedule 5 Support Agreement and this Schedule 5 shall be incorporated herein.

The packaged support service offerings are summarised as follows:

These Support offerings are described below.

Service Description 1 – Response Target Service

The Response Target Service builds on Maintenance to give discrete response time targets for the priorities defined below. The escalation procedure is described at the end of this Service Description.

Priority 1 – Show Stopper

Loss of application function such that the Product is completely unavailable to users and cannot be used in production with no workaround immediately available. For example, all terminals are inoperable, a critical machine is completely down, or a total production system failure has occurred.

Priority 2 – High

Loss of application function such that a substantial portion of the Sherwood Product cannot be used in production and there is no workaround immediately available. For example, a number of people are unable to work or are unable to complete time critical tasks such as month end processing.

Priority 3 – Medium

Loss of application function such that a substantial portion of the Product can still be used in production although no workaround is immediately available. For example some users are unable to use parts of the software, or aborted jobs need restarting.

Priority 4 – Standard

Loss of application function such that a substantial portion of the Product can still be used in production and/or a workaround can be implemented by Customer personnel with remote assistance from Sherwood.

Priority 5 – General

General inquiries, requests for enhancements and/or reporting of defects that do not

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impact the users’ ability to continue production of work.

Escalation Procedure

Support Services requests, which are not resolved before the escalation targets described in the priority descriptions above, will be escalated through the following levels

Service Description 2 – Extended Support Hours

Extended Support Hours extend the Support Hours to incorporate Support Services performed outside of normal business hours during the week, at weekends and on statutory holidays.

Extended Support Hours are comprised of two categories:

Extended Support Hours are normally provided as On-Call Support Hours. When a Support Service is requested during On-Call Support Hours, Work Support Hours commence within the agreed Extended Support Hours according to Response Target Service guidelines. The exact nature of the Extended Support Hours required by Customer is defined in the appropriate Order Form.

Service Description 3 – Operational Support

Sherwood offers support for the operation of the deployed Sherwood software in a production environment the form of Operational Support. For example, Operational Support services may include the initiation of electronic file transfers or the monitoring of batch processes.

Each specific Operational Support task is defined in the appropriate Order Form.

General Provisions regarding Support

The terms and conditions to which Customer is bound under Sherwood’s Standard Support and Maintenance Schedule (Schedule 4) apply hereunder; specifically applicable are the non-solicitation, warranty, termination, and Customer obligation provisions. Nothing in this Support Agreement shall prevent Sherwood from using any experience acquired or developed during the performance of this Agreement in the provision of services for other Customers or on its own behalf, except as considered confidential or proprietary information of Customer under this Agreement, any statement of work or mutually executed confidentiality agreement. Any information provided by Sherwood to Customer as to the expected results of the provision of Support is given for the purposes of guidance only.

This Support Agreement sets out Sherwood’s entire liability in relation to its performance, non-performance, and offering of Support service/▇. ▇▇▇▇▇▇▇▇ reserves the right in its absolute discretion to suspend the supply of Support services where payment by Customer of any undisputed amount due to Sherwood (whether under this or any other agreement) is overdue.

It is further understood and agreed that::

Sherwood shall provide technical support to Customer via telephone helpline (the “Support Hotline”), according to the Response Target Service set forth herein, between 9:00 a.m. Central time and 5:00 p.m. Central time, Monday through Friday, exclusive of Public Holidays in the relevant jurisdiction in which the Services are being provided holidays, (“Support Hours”).

Email Support. Sherwood shall provide technical support to Customer via email (“Email Support”), according to the Error Remediation Process set forth below during the Support Hours.

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Schedule 6. PROFESSIONAL TECHNICAL SERVICES AGREEMENT

AGREEMENT FOR THE SUPPLY OF PROFESSIONAL SERVICES PURSUANT TO MASTER SOFTWARE SALES AND SERVICES AGREEMENT

The effective date of this Professional Services Schedule (“Services Agreement”) is the date of execution of the applicable Order Form and/or Change Order Form (“Effective Date”), and this Services Agreement is pursuant to the Sherwood Master Software Sales and Services Agreement (and all Schedules and any Sub-Schedules thereto) and Order Form by and between the parties (“Master Agreement”), and binds the same under the terms and conditions as follows.

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Notice of termination, which is given during the currency of the Order Form or Change Order Form/s, shall not take effect until the completion of the Service/s specified therein.

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