Master Agreement



 






EXHIBIT 10.24




      



      



      



      



MASTER AGREEMENT FOR BUSINESS PROCESS OUTSOURCING SERVICES




between




ACS COMMERCIAL SOLUTIONS, INC.




and




OFFICE DEPOT, INC.




      



      



      



      



 









 





MASTER AGREEMENT FOR BUSINESS PROCESS OUTSOURCING SERVICES




     This Master Agreement for Business Process Outsourcing Services (this “Agreement” or “MSA”) is
entered into between ACS Commercial Solutions, Inc. a Nevada corporation with an address for the
purposes of this Agreement at 2828 N. Haskell, Dallas, Texas 75204 (“ACS”) and Office Depot, Inc.,
a Delaware corporation with an address at 2200 Old Germantown Road, Delray Beach, FL 33445
(“Customer”). (ACS and Customer are sometimes hereinafter referred to collectively as the
“Parties” and individually as a “Party”.) The obligations set forth in this Agreement will be
performed by ACS itself and through direct and indirect wholly-owned subsidiaries. This Agreement
will become effective as of November 30, 2004 (the “Effective Date”). This Agreement is further
entered into with reference to the following facts:



A. ACS is in the business of providing business process outsourcing and related services to its
customers, including the services contemplated by this Agreement; and



B. Customer has chosen to engage ACS to provide certain business process outsourcing services to
Customer, as such services may be agreed by Customer and ACS from time to time and documented in
separate Statements of Work; and



C. Customer and ACS desire to establish a mechanism for the execution of such Statements of Work
and agree upon standard provisions that will govern each such Statements of Work.



     Accordingly, the Parties agree as follows:



1. DEFINITIONS




     In this Agreement, the following terms will have the indicated meanings:



     “Accountancy” will have the meaning set forth in Section 3.6.



     “ACS Competitor” will mean those persons or entities set forth on the attached Schedule
B.



     “ACS Facilities” means any facility owned, operated or managed by ACS from where ACS provides
Services.



     “ACS Materials” means any materials, documentation, manuals, guidelines, business processes,
methodologies, software, tools, patents, registered designs, trade marks and service marks (whether
registered or not), copyright, database rights, inventions, designs, drawings, performances,
computer programs, confidential information, business names, or other items licensed or owned by
ACS and used by ACS to the Services, including ACS Software (excluding the Customer Materials).



     “ACS Personnel” means employees of ACS and its subcontractors assigned to perform the
Services.



     “ACS Solution” means all systems, software, designs, documentation, literary works or works of
authorship, computer programs, program tools, drawings, user manuals, technical manuals, charts,
graphs, machine readable text and files, computer code (in object code and source code form),
applications, utilities, operating systems, procedures, methodologies, databases, ways of doing
business, know-how, screen layouts, tools and programs, including all IPR subsisting therein, that
ACS uses to provide the Services, implements pursuant to this Agreement or otherwise, or otherwise
offers to Customer or other ACS customers as part of ACS service offerings, and any improvements,
modifications, corrections, compilations, derivative works, derivations, or other revisions of
same. For clarification, the ACS Solution includes the ACS Software, ACS Materials, and unless
otherwise expressly stated, the ACS Solution excludes the Existing Customer Solution.



     “ACS Software” means software that is owned or licensed by ACS and used by ACS to provide the
Services.



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     “Affiliate” of any specified person or entity, means any other person or entity that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by, or is under common
Control with, the specified person or entity.



     “Agreement” means this Master Agreement for Business Process Outsourcing Services and all
Schedules and Attachments hereto.



     “Authorized User” means a user authorized to access and use one or more portions of the ACS
Solution as set forth in the applicable Statement of Work.



     “Base Charges” means the fixed component of Customer’s monthly Charges as set forth in
Schedule A, Attachment A (Pricing).



     “Business Day” means any day other than a Saturday, Sunday or legal holiday in the locality in
which the Services are provided.



     “Change Control Document” will have the meaning set forth in Section 10.5(b).



     “Change Control Procedures” will have the meaning set forth in Section 10.5(a).



     “Charges” will have the meaning set forth in Article 13.



     “Commissioned Work” means any work, design, output, document, system, software or component
thereof (including IPR subsisting therein), that is (a) defined as a Deliverable or project in a
task order or similar change order document executed by authorized representatives of both parties;
(b) to be provided by ACS or a subcontractor of ACS; (c) provided by ACS at a separately
identifiable, discrete charge as stated in the task or change order; and (d) has terms governing
Customer’s acceptance testing and acceptance criteria for the Deliverable or project.



     “Confidential Information” will have the meaning set forth in Section 9.1.



     “Contract Year” means each of the seven (7) annual periods beginning on the Effective Date and
each anniversary thereof.



     “Control” and its derivatives means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person or entity, whether through
the ownership of more than fifty percent (50%) of voting securities, by contract, or otherwise.



     “Critical Service Levels” means the Critical Service Levels designated as such in Schedule
A, Attachment B.



     “Customer Data” means all Confidential Information of Customer as well as all data and
information (including data relating to the transactions reflected in this Agreement and databases)
(i) submitted to ACS by Customer, (ii) obtained, maintained, developed or produced by ACS or ACS
Agents in connection with the Services and/or this Agreement or (iii) to which ACS or ACS Agents
have access in connection with the provision of the Services, including, but not limited to, in
(i), (ii) and (iii) above, information relating to Customer’s customers, employees, third party
vendors, technology, operations, facilities, financials, consumer markets, products, capacities,
systems, procedures, security practices, research development, business affairs and finances, and
excluding in (i), (ii, and (iii) above any ACS Software, ACS Materials and ACS’ Confidential
Information.



     “Customer Facilities” will have the meaning set forth in Section 4.2.



     “Customer Materials” means any materials, documentation, manuals, guidelines, business
processes, methodologies, software, tools, patents, registered designs, trade marks and service
marks (whether registered or not), copyright, database rights, inventions, designs, drawings,
performances, computer programs, confidential information, business names, or other items licensed
or owned by Customer and required to be used by ACS to provide the Services (excluding the ACS
Materials).



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     “Customer Third Party Resources” has the meaning set out in Section 8.1(c) above.



     “Deliverable” means a specific item, writing, output or work that (i) is clearly defined and
identified in the Statement of Work as a “Deliverable”; and (ii) is to be provided by ACS at a
separate charge. Deliverables will not be construed to include any pre-existing works of authorship
or other intellectual property rights owned or licensed ACS or a third party or any ACS Software.



     “Disaster” will mean any Force Majeure event (defined herein) that causes an unplanned
interruption of the Services and materially impairs the ability of ACS to deliver the Services in
the manner specified in Schedule A.



     “Disaster Recovery” will mean the restoration by ACS of the critical processing functions as
identified in a Disaster Recovery Plan pursuant to the terms of such plan as set forth in
Schedule A, Attachment D (Disaster Recovery Plan). “Effective Date” has the meaning
set forth in the introductory paragraph.



     “Equipment” means the computer and related equipment owned or leased by ACS and used by ACS to
provide the Services.



     “Excused Performance Problem” will have the meaning set forth in Section 5.3(c).



     “Executive Committee” will have the meaning set forth in Section 10.2.



     “Existing Customer Solution” means all systems, software, designs, documentation, literary
works or works of authorship, computer programs, program tools, drawings, user manuals, technical
manuals, charts, graphs, machine readable text and files, computer code (in object code and source
code form), applications, utilities, operating systems, procedures, methodologies, databases, ways
of doing business, know-how, screen layouts, tools and programs, including all IPR subsisting
therein, that Customer or a Customer Affiliate used immediately prior to the Effective Date to
perform functions equivalent or similar to the Services, including all IPR associated with such
items.



     “Force Majeure Events” will have the meaning set forth in Section 17.3(a).



     “Intellectual Property Rights” or “IPR” means all intellectual property rights or analogous
rights, including without limitation patents, trade secret, registered designs, trademarks and
service marks (whether registered or not), rights in the nature of unfair competition rights,
copyright, database right, design right and all similar proprietary rights including those
subsisting (in any part of the world) in inventions, designs, drawings, business methods,
performances, computer programs, semi-conductor topographies, confidential information, business
names, goodwill and the style and presentation of goods or services and applications for protection
of any of the above rights anywhere in the world.



     “Interest” means interest at the monthly rate of one percent (1%) or twelve percent (12%) per
annum.



     “Key ACS Positions” will have the meaning set forth in Section 7.1(a).



     “Losses” means all losses, liabilities, damages and claims, and all related costs and expenses
(including any and all reasonable legal fees and reasonable costs of investigation, litigation,
settlement, judgment, appeal, interest and penalties) incurred by an indemnified party in
connection with an indemnified claim.



     “Notice of Assumption of Defense” will have the meaning set forth in Section 16.3(a).



     “Pass-Through Expenses” will mean the actual invoiced amounts (excluding any ACS profit,
administrative fee or internal overhead charges) charged to ACS by third parties as more
particularly described the applicable Statement of Work.



     “Project Executive” will have the meaning set forth in Section 10.1.



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     “Reports” will have the meaning set forth in Section 10.4.



     “Required Consent” will have the meaning set forth in Section 8.1(c).



     “Schedules” means any schedule, exhibit, agreement or other document either (i) attached to
this Agreement, (ii) executed by the Parties concurrently with this Agreement or on the
Commencement Date, or (iii) executed by the Parties at any time after the Effective Date, if such
document states that it is a Schedule to this Agreement.



     “Service Commencement Date” means the date(s) ACS is obligated to commence provision of
Services as more fully described in Schedule A (Statement of Work).



     “Service Levels” will have the meaning set forth in Section 5.1.



     “Service Level Termination Event” will have the meaning set forth in Section 1.6 of
Schedule A, Attachment B (SLA).



     “Services” collectively means those services, functions and responsibilities to be performed
by ACS as more fully described in Schedule A (Statement of Work).



     “Software” will mean the source code and object code versions of any applications programs,
operating system software, computer software languages, utilities and other computer programs
(i.e., any set of statements or instructions to be used directly or indirectly in a computer in
order to bring about a certain result), and documentation and supporting materials relating
thereto, in whatever form or media, used or developed in connection with the provision of the
Services, including the tangible media upon which such applications programs, operating system
software, computer software languages, utilities and other computer programs, and documentation and
supporting materials relating thereto are recorded or printed, together with all corrections,
improvements, updates and releases thereof.



     “Statement of Work” means the document entered into from time to time by Customer, which sets
forth the description of Services and related obligations to be performed by ACS under this
Agreement, and any support required from Customer.



     “Term” will have the meaning set forth in Section 2.1.



     “Termination/Expiration Assistance” will have the meaning set forth in Section
18.6(a).



     “Transitioned Employees” means employees transitioned to ACS pursuant to the terms set forth
in Schedule A, Attachment F (Transition Plan).



     “Variable Charges” means the fluctuating component of the Charges, based on Customer’s
utilization of the Services or any Charges that are one-time in nature (i.e. not recurring, such as
a Pass-Through Expense and are set forth in Schedule A, Attachment A (Pricing).



     “Virus” will mean harmful surreptitious code or other contaminants, including commands,
instructions, devices, techniques, bugs, web bugs or design flaws that may be used to access,
alter, delete, threaten, infect, assault, vandalize, disrupt, damage, disable, or shut down
Customer or ACS’, as the case may be, systems, databases, Software, or hardware.



2. TERM




2.1 Term.




     The term of this Agreement (the “Term”) will begin on the Effective Date and will continue
through the seventh (7th) Contract Year, unless earlier terminated or extended in accordance with
the provisions of this Agreement.



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2.2 Renewal Term.




     Customer will have the option to request a renewal of the Term for up to one (1) additional
one (1) year term by delivering written notice of such renewal to ACS at least ninety (90)days
before expiration of the seventh (7th) Contract Year and before expiration of the first renewal
term as applicable. ACS will have thirty (30) days after receipt of such notice to respond to
Customer, which written response will specify whether or not ACS accepts such renewal request, or
under what modified terms and conditions ACS would be willing to accept such renewal. All of the
terms of this Agreement will continue to apply without change, unless otherwise agreed by the
Parties in writing, during any renewal period(s), and the “Term” as used in this Agreement will
refer to both the original 7-year term of this Agreement and any renewal(s) thereof.



3. SERVICES




3.1 Services.




     During the Term of this Agreement, ACS will provide to Customer the Services in accordance
with the terms of this Agreement and a Statement of Work Number 1, Schedule A that
describes all services, resources and deliverables to be provided by ACS to Customer. Any
additional services mutually agreed to by the Parties shall be set forth in a Statement of Work in
the form of Schedule A for the compensation set forth therein. Each Statement of Work
shall be governed by the terms and conditions of this Agreement by reference and will include the
following if applicable: (i) a reference to this Agreement, which reference will be deemed to
incorporate all of the provisions of this Agreement; (ii) the date as of which the provisions of
the Statement of Work will be effective and, if applicable, the term or period of time during which
the Services described therein will be provided; (iii) a description of the Services to be provided
by ACS under the Statement of Work (including the location at which such Services are to be
provided and, if applicable, the names, positions and rates for all ACS personnel to be used) and
the performance criteria, standards and milestones applicable to such Services; (iv) the amounts
payable for the Services to be provided under the Statement of Work and the schedule on which such
amounts will be invoiced by ACS; and (v) any additional provisions applicable to the Services to be
provided under the Statement of Work that are required by this Agreement to be addressed, are not
otherwise set forth in this Agreement or are exceptions to the provisions set forth in this
Agreement. No Statement of Work will become effective until it has been executed by an authorized
representative of each Party. Such Services may be amended and supplemented from time to time
pursuant to the Change Control Procedures. Statement of Work Number 1 attached under this
Agreement as Schedule A describes the initial services to be provided by ACS to Customer.
As described in each applicable Statement of Work, ACS will provide the Services from the locations
specified in such Statement of Work; provided, however, with the consent of Customer, which consent
will not be unreasonably withheld or delayed, ACS may provide the Services from other service
locations.



3.2 Additional Services.




     Customer may, from time to time, request that ACS perform a new or additional service beyond
the scope of the Services being provided at the time of such request (the “Additional Services”).
Any implementation of such new or additional services will be administered in accordance with
Section 10.5. Customer will initiate all such requests only through an authorized
representative in accordance with the process set forth in Section 10.5 and ACS will not
begin performing any additional service(s) until an appropriate Change Control Document has been
duly executed by Customer and ACS.



3.3 Resources.




     The facilities, personnel, Equipment, Software, and other resources necessary to provide the
Services will be described in each Statement of Work. To the extent that Customer is obligated to
provide any facilities, personnel, Equipment, Software or other resources in connection with ACS’
provision of the Services, such resources will be specified in the applicable Statement of Work.



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3.4 Affiliates Receiving the Services as of the Effective Date.




     ACS will provide the Services to Customer and to those Affiliates of Customer identified in
each applicable Statement of Work provided however that such Affiliates will not be deemed third
party beneficiaries of this Agreement and will have no right of action against ACS arising out of
this Agreement. Customer may pursue any claims for damages alleged by any Customer Affiliates
receiving the Services to the same extent as if such damages were incurred by Customer. If at any
time during the Term of this Agreement, Customer sells or otherwise transfers ownership of an
Affiliate to a third party, ACS will continue to provide the Services to such Affiliate if
requested by Customer, provided, that (i) such divested entity or unit is not an ACS Competitor;
(ii) Customer or such divested entity agree to pay any and all costs associated with making the
Services available to them (e.g. one time software access fees, telecommunication provisioning
charges); and (iii) Customer will remain liable for the payment of all Charges related to the
Services provided by ACS to such Affiliate and for any breach of this Agreement arising from the
action or inaction of such Affiliate.



3.5 New Affiliates.




     If following the Effective Date, Customer desires ACS to provide Services to an Affiliate of
Customer that is not identified in a Statement of Work, then ACS and Customer will follow the
Change Control Procedures to add such new Affiliate. Any new Affiliates added pursuant to this
Section 3.5 will be subject to Section 3.4 above. Customer will pay any mutually
agreed to charges that may be imposed by ACS’ third party suppliers and any other costs and
expenses incurred by ACS in order to allow a Customer Affiliate to access the Services.



3.6 No Accountancy.




     Notwithstanding anything set forth in this Agreement or any Exhibit or Schedule hereto, in no
event will the Services include, or this Agreement be construed as requiring that ACS (i) perform
any services reserved to a licensed or certified public accountant pursuant to the law of any
applicable jurisdiction (“Accountancy”), or (ii) provide, or be deemed or construed to have
provided, any attestation or opinion in connection with the Services or with respect to any
financial statements or disclosures made by Customer or any Customer Affiliate. ACS represents
that ACS is not licensed to practice Accountancy in any jurisdiction and Customer acknowledges that
a) this Agreement does not require any ACS Personnel to practice Accountancy; (b) no ACS Personnel
providing the Services are licensed accountants or certified public accountants; and (c) Customer
will retain sole responsibility for verifying or otherwise providing any attestation or opinion as
to the reliability of any information contained in or derived from any Customer or Customer
Affiliates financial statements or disclosures.



3.7 Reliance on Instructions.




     In performing its obligations under this Agreement, ACS will be entitled to rely upon any
routine instructions, authorizations, approvals or other information provided to ACS by Customer.
Unless ACS knew or in the course of its provision of the Services or should have known, of any
error, incorrectness or inaccuracy in such instructions, authorizations, approvals or other
information, ACS will incur no liability or responsibility of any kind in relying on or complying
with any such instructions, authorizations, approvals or other information received from Customer.



3.8 Viruses; Disabling Code.




     Customer will use commercially reasonable efforts, including the use of commercially available
virus detection software, to ensure that any Software or hardware provided by Customer is delivered
free of any Virus and shall not knowingly, intentionally or negligently introduce into such
Software or hardware, any Virus. In the event any such Virus is introduced as a result of a breach
by Customer or Customer Agents of this covenant, Customer will exercise commercially reasonable
efforts to eradicate the Virus and reduce the effects of the Virus as existed prior to the
introduction of such Virus at Customer’s sole cost and expense.



     ACS will use commercially reasonable efforts, including the use of commercially available
virus detection software, to ensure that any Software, or hardware provided by ACS is delivered
free of any Virus and ACS shall not knowingly, intentionally or negligently introduce into the
Software or hardware, any Virus. In the event such a Virus



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is introduced without a breach by ACS or ACS Agents of this covenant, ACS shall, (i) at no
additional charge to Customer, using the ACS resources fully-dedicated to Customer (to the extent
feasible) or (ii) if additional skills or time are required, on a time and materials basis, and
with reasonable assistance from Customer, exercise commercially reasonable efforts to eradicate the
Virus, reduce the effects of the Virus, and restore the Software and/or hardware to the same level
of service or operation as existed prior to the introduction of such Virus. Notwithstanding the
foregoing, in the event any such Virus is introduced as a result of a breach by ACS of this
covenant, ACS will exercise commercially reasonable efforts to eradicate the Virus, reduce the
effects of the Virus, and restore the Software and/or hardware to the same level of service or
operation as existed prior to the introduction of such Virus at no charge to Customer.



3.9 Compliance with Laws.




     Each Party will comply, and will cause each of its employees, agents and subcontractors to
comply, with the laws of all governmental authorities to the extent such laws are applicable: (i)
in the case of ACS, to ACS’ provision of the Services, and (ii) in the case of Customer, Customer’s
receipt and use of the Services.



     ACS shall use commercially reasonable efforts to identify and notify Customer of any changes
in applicable laws and regulations that may relate to its delivery of the Services. Customer shall
use commercially reasonable efforts to identify and notify ACS of any changes in applicable laws
and regulations that may relate to its receipt and/or use of the Services. In the event changes in
laws or regulations prevent or impair ACS from delivering the Services under the Agreement, ACS
shall use commercially reasonable efforts to develop and, upon Customer’s written approval (such
approval not to be unreasonably withheld), implement a suitable work-around until such time as ACS
can perform the Services under the Agreement without such work-around.



     If the changes are to laws or regulations primarily applicable to ACS and not to Customer, ACS
shall develop and implement a work-around at its own expense. If the changes are due to laws or
regulations primarily applicable to Customer, ACS shall develop and implement a work-around at
Customer’s expense as mutually agreed in writing; provided, however, if the costs associated with
implementing such change(s) are also applicable to ACS’ other customers, any proposed increase by
ACS will include only Customer’s proportionate share of the costs to implement such change. If the
changes are due to laws or regulations applicable to both Customer and ACS, then ACS shall develop
and implement a work-around, the expense of which shall be shared by Customer and ACS as mutually
agreed in writing.



4. TRANSITION




4.1 Transition Services.




     ACS will perform all functions and services necessary to accomplish the transition of
Customer’s operations, systems, and capabilities to ACS as such functions and services are more
particularly described in Schedule A (Statement of Work). Schedule A,
Attachment F (Transition Plan) sets forth the transition plan and milestone criterion
comprised of objectively measured transition activities.



4.2 Customer Facilities; Use of Customer Assets.




     Customer will make available to ACS furnished space in Customer’s Wichita, Kansas facility
(the “Wichita Site”) for the purpose of allowing ACS to perform the Services. If the aggregate
ACS occupancy-related costs and expenses of the furnished space at the Wichita Site (“Occupancy
Expenses”) exceed three hundred sixty thousand dollars ($360,000) for the period that ACS occupies
the space at the Wichita Site, then with respect to all Occupancy Expenses the Parties mutually
agree exceed $360,000 (the “Excess Lease Expense”)Customer and ACS will bear the Excess Lease
Expense on an equal basis.



     With respect to the Customer assets set forth in Section [14] of Schedule A, Statement of
Work, Customer hereby grants to ACS the right to use such assets for the sole purpose of providing
the Services.



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4.3 Bill of Sale




     ACS and Customer anticipate that on or before the Service Commencement Date the assets set
forth in Section 14 of Schedule A, Statement of Work will be transferred from Customer to ACS at
the price (“Asset Transfer Consideration”) and in accordance with the additional terms as the
Parties may agree pursuant to the execution of a Bill of Sale and Assignment substantially in the
form attached as Schedule F. At Customer’s option, the Asset Transfer Consideration may be
paid by Customer in cash or as a credit against ACS’ first invoice to Customer.



5. SERVICE LEVELS




5.1 Service Levels.




     ACS will meet the required quantitative levels of performance for the Services specified as
Key Measurements and Critical Service Levels as more fully set forth in Schedule A, Attachment
B (SLA) (“Service Levels”).



5.2 Review of Service Levels.




     Each quarter after the applicable Service Commencement Date, the Parties will jointly review
the Service Levels and mutually agree upon adjustment of any Service Level to reflect any improved
performance capabilities associated with advances in the technology and methods used to perform the
Services. Throughout the Term, ACS will use commercially reasonable efforts to identify and notify
Customer of commercially reasonable methods of improving the Service Levels or ACS’ performance of
Services. Any change in Service Levels is subject to the Change Control Procedures.



5.3 Failure to Meet Critical Service Levels.




     (a) If ACS fails to meet a Critical Service Level for reasons other than those specified in
Section 5.3(c) below, Customer will receive a credit against future Charges in the
applicable amount specified in the Service Level Schedule attached hereto as Schedule A,
Attachment B (SLA) (“Performance Credits”). The Performance Credits will not limit or preclude
Customer’s right to recover, in accordance with this Agreement, other damages incurred by Customer,
or to seek other remedies to which it may be entitled, as a result of such failure; provided,
however, that the amount of any related damages that Customer is awarded (or any monetary
settlement agreed upon) for such failure will be offset by the amount of Performance Credits paid
to Customer by ACS. Any Performance Credits owed to Customer under a Statement of Work will be
credited pursuant to Section 13.3 of this Agreement.



     (b) Each time ACS fails to meet a Critical Service Level, ACS will (i), promptly investigate
the root cause(s) of the failure and deliver to Customer a written report identifying such root
cause(s), (ii) use commercially reasonable efforts to correct such failure and to begin meeting the
applicable Critical Service Level as soon as practicable; and (iii) at Customer’s request, advise
Customer of the status of such corrective efforts. All Critical Service Levels and applicable
Performance Credits remain in effect notwithstanding ACS’ use of commercially reasonable efforts to
correct any performance problem.



     (c) ACS will not be liable for failure to meet any Key Measurement or any Performance Credits
resulting from ACS’ failure to meet a Critical Service Level if such failure is attributable solely
to (i) Customer’s (or a Customer agent’s) acts, errors, omissions, or breaches of this Agreement,
including, without limitation, any failure due to incorrect data and/or information provided by
Customer or Customer agents; (ii) infringements of third party proprietary rights by Customer or a
Customer agent; (iii) willful misconduct or violations of Law by Customer or a Customer agent;
(iii) Service or resource reductions requested or approved by Customer and agreed to by the Parties
through the Change Control Procedures; provided that ACS has previously notified Customer in
writing as part of such Change Control Procedures that the implementation of such request would
result in such failure to meet the applicable Critical Service Level or Critical Milestone; (v) a
Force Majeure Event; (vi) business process or other changes requested by Customer but which ACS
demonstrates are not supportable within the Service Levels under this Agreement; (vii) any failures
or defects in Customer controlled software or hardware not under the control of ACS (collectively
and individually (i)-(vii) constitute an “Excused Performance Problem”).



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5.4 Earnback.




     In the event ACS meets the Expected Service Level(s) as described in Schedule A,
Attachment B (SLA), ACS will accrue an earnback credit (the “Earnback Credit”) as described
in Schedule A, Attachment B (SLA). Earnback Credits will be applied using the
methodology described in Section 13.3 below.



5.5 Measurement and Monitoring Tools.




     As part of the Services throughout the Term, and at no additional cost to Customer, ACS will
implement the measurement and monitoring tools and procedures necessary to measure its performance
of the Services and compare such performance to that required by the Service Levels. Such
measurement and monitoring tools are more particularly described in each applicable Statement of
Work. Upon Customer’s request, ACS will provide Customer or its auditors with any information
produced by the measurement and monitoring tools necessary to verify compliance by ACS with the
Service Levels.



5.6 Benchmarking.




     At any time after the second (2nd) anniversary of the applicable Service Commencement Date, or
in the event of multiple Service Commencement Dates within a particular Statement of Work, the
final Service Commencement Date, and thereafter, no more frequently than once during any twelve
(12) month period thereafter Customer may request a benchmark of the performance of the Services.
Within 15 days of such request, the Parties will agree on an acceptable third-party, that is not an
ACS Competitor (the “Benchmarker”), and the Parties will jointly approach such third party to
engage them to benchmark the Services. ACS will reasonably cooperate with the Benchmarker and
provide all data relating to the provision of the Services requested by the Benchmarker, provided
that ACS will not be required to provide any information relating to its margins, costs, cost
elements or business processes, or to disclose any proprietary or trade secret information of ACS
or its other customers. The fees and expenses charged by the Benchmarker will be shared equally by
the Parties. In conducting the benchmarking, the Benchmarker will normalize the data used to
perform the benchmarking to accommodate, as appropriate, differences in duration of the contract,
volume of services, scope of services, service levels, financing and payment schemes (including
up-front incentive payments), geographic configurations of the solution and other pertinent
factors. Based upon the results of such benchmarking, ACS will cooperate with Customer to
investigate any unfavorable variances, determine if such unfavorable variances are due to unique
Customer requirements or ACS’ resource allocation and related pricing. Following a benchmarking,
and at Customer’s request, Customer and ACS will meet to discuss in good faith the benchmarking and
any appropriate adjustment to the Services, Charges, and Service Levels.



6. DISASTER RECOVERY; BUSINESS CONTINUITY; SECURITY




6.1 The disaster recovery obligations of each Party are set forth in Schedule A,
Attachment D (Disaster Recovery Plan).



6.2 Beginning on each Service Commencement Date and continuing through the Term of this Agreement,
ACS will maintain commercially reasonable security measures to preserve, protect, and restrict
access to those ACS facilities, equipment, software, data storage, and documentation that contain
Customer Data or are used to provide the Services, which measures will be no less than those used
to protect ACS’ own data and other proprietary business processes. In addition, ACS agrees to
submit, once each Contract Year, to security compliance testing, provided, however, in the event a
compliance audit (as described below) conducted by Customer results in a finding that ACS is not in
compliance with Customer security requirements (which have been previously provided to ACS),
Customer will have the right to conduct more frequent compliance audits until ACS resolves the
deficiency identified in such compliance audit. This periodic compliance testing consists of a
right by Customer to audit ACS’ information systems, networks, applications, switches, routers,
firewalls, or other information technologies as deemed appropriate by Customer in order to assure
that ACS’ security posture does not adversely effect or degrade Customers information security
posture. These audits may be performed by Customer or a third party contracted by Customer to
determine the security posture of ACS provided that any such third party is not an ACS Competitor.



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7. PERSONNEL




7.1 Key ACS Positions.




     (a) Customer and ACS may jointly designate certain positions (the “Key ACS Positions”) as
critical to providing the Services under an applicable Statement of Work throughout the Term. Such
Key ACS Positions, if any, will be set forth in a schedule attached to the applicable Statement of
Work (the “Key ACS Positions Schedule”). Customer may request a change to or update the Key ACS
Positions from time to time during the Term. Unless otherwise agreed by the Parties, the number of
Key ACS Positions will not exceed five percent (5%) of the ACS employees fully dedicated to
provision of the Services.



     (b) Unless consented to by Customer, ACS will not, from the date an individual first fills a
Key ACS Position until completion of the period set forth next to such Key ACS Position in the
applicable Key ACS Positions Schedule, either (i) terminate the employment of any individual
originally or subsequently filling such Key ACS Position except for cause or (ii) at its
initiative, transfer such individual from such Key ACS Position.



     (c) Before assigning an individual to fill a Key ACS Position, ACS will notify Customer of the
proposed assignment, will introduce the individual to appropriate Customer representatives as
designated by Customer’s Project Executive, and will provide Customer with a resume and such other
information as Customer may reasonably request. If Customer objects in good faith to the proposed
assignment within fifteen (15) days after being notified thereof, ACS will discuss such objections
with Customer and attempt to resolve them on an agreeable basis. If Customer continues to object
to the proposed assignment, ACS will not assign the individual to that position and will propose
another individual to fill the Key ACS Position.



     (d) ACS agrees (a) that the ACS personnel (“Long-Term Restricted Personnel”) holding the
positions expressly identified in Schedule E (Office Depot Key Personnel) who have
performed Services for Office Depot for a period of at least one (1) month shall not perform any
services for Staples, Inc. (“Staples”), Office Max, Boise, Corporate Express, Inc., or Buhrmann
during the term of the Project and for a period of twelve (12) months after the Long-Term
Restricted Personnel conclude their respective involvement in the Project; and (b) the Long-Term
Restricted Personnel will not perform any Finance implementation services for Staples until 12
months after the termination of this contract.



     The restrictions under this Section shall immediately and automatically terminate if: (a) the
Project is terminated by ACS for a material breach by Office Depot, which breach remains uncured
after the applicable notice period from ACS; or (b) if Office Depot terminates the Project without
cause. For purposes of this Section, a material breach by Office Depot shall only include a
non-payment by Office Depot of an outstanding invoice which breach remains uncured after a thirty
(30) day notice period from ACS or a breach of Office Depot’s confidentiality obligations as
provided under this Agreement.



7.2 Removal of ACS Employees from Customer Account.




     In the event Customer notifies ACS that an ACS Employees has engaged in willful misconduct or
has committed a material breach of the Agreement which is detrimental to Customer, ACS will
immediately remove such employee from Customer’s account. In all other cases, Customer may notify
ACS if Customer, in good faith, determines that the continued assignment to the Customer account of
any ACS employee is not in the best interests of Customer. Upon receipt of such notice, ACS will
have a reasonable time period not to exceed 30 days to investigate the matters stated therein,
discuss its findings with Customer and attempt to resolve such matters in a manner acceptable to
Customer. If Customer continues to request the replacement of such individual after such period,
ACS will remove the individual from the Customer account. Nothing in this Section 7.2 will
be deemed to require ACS to terminate the employment of such individual.



7.3 Employment.




     During the Term and while ACS is providing any Termination/Expiration Assistance, and for up
to one (1) year thereafter, Customer will not employ, as a result of direct solicitation, or
directly or indirectly solicit the employment of, any ACS employee, involved in the provision of
the Services. During the Term and while ACS is



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providing any Termination/Expiration Assistance, and for up to one (1) year thereafter, ACS
will not employ, as a result of direct solicitation, or directly or indirectly solicit the
employment of, any Customer employees involved in the Services except for the Transitioned
Employees. If a Party is interested in hiring one or more employees of the other Party, such
interest will be discussed first with the other Party prior to discussing such an offer with the
employee.



7.4 Other Employee Issues.




     In the event the Parties determine that Customer personnel will be transferred to ACS to
support ACS’ provision of Services to Customer, the transfer of such employees will be effected in
accordance with the terms and conditions set forth in the applicable Statement of Work; provided,
however, that Customer acknowledges and agrees to retain all obligations and liabilities stemming
from or related to employment of such employees for the period of time prior to employment by ACS.
ACS will have all obligations and liabilities stemming from or related to employment of employees
that have been transferred to ACS pursuant to this Agreement.



8. INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS




8.1 Existing Customer Solution.




     (a) Customer retains all right, title and interest in the Existing Customer Solution and any
other Customer property utilized in the provision of the Services, including but not limited to the
Customer Data. ACS is hereby granted a limited license to use the Existing Customer Solution only
as expressly described in this Section 8.1.



     (b) Except as set forth below, Customer hereby grants ACS a limited, worldwide and
non-exclusive license to use, access, practice, embody, implement, load, execute, store, transmit,
display, copy, maintain, modify, enhance, create derivative works, make and have made the Existing
Customer Solution and all components thereof, in accordance with the following:




1. ACS agrees to comply with such terms and conditions of the third party contracts for the
Customer Third Party Resources (as defined below) as Customer provides to ACS.




2. The license granted ACS pursuant to this Section 8.1 will be limited to ACS and
its subcontractors, employees and authorized agents of ACS. ACS may use the Existing
Customer Solution for the purpose of providing Services to Customer and for no other
purpose.




3. ACS’ license to use the Existing Customer Solution will expire automatically on the later
of the expiration of the Term, termination of this Agreement by either party or completion
of the Termination/Expiration Assistance. Following such expiration or termination of the
Agreement or completion of the Termination/Expiration Assistance, ACS agrees to comply with
Section 18.6 below concerning the return of materials associated with the Existing
Customer Solution.



     (c) The Parties acknowledge that the Existing Customer Solution includes equipment, materials,
software or other items licensed or procured by Customer from a third party (“Customer Third Party
Resources”). Customer will obtain the relevant required consent from each third party provider of
the Customer Third Party Resources (each, a “Required Consent”). For clarification, such Required
Consents will be obtained so as to enable ACS to provide the Services (i) upon the Service
Commencement Date, and (ii) following the Service Commencement Date to the extent the parties agree
that ACS will continue to use a Customer Third Party Resource to provide the Services.



     (d) The Parties’ respective financial responsibilities for Required Consents associated with
ACS’ use of those Customer Third Party Resources that consist of third party software are set forth
in Schedule A, Attachment A (Pricing). Unless expressly stated otherwise in this
Agreement, financial responsibility for Required Consents associated with non-software related
items will be that of Customer.



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     (e) Subject to any agreements governing the Customer Third Party Resources, all right, title
and interest in improvements, modifications, corrections, compilations, derivative works,
derivations, or other revisions of the Existing Customer Solution, or components thereof, will be
retained by Customer. Customer hereby grants to ACS by way of present assignment a limited,
non-exclusive, worldwide right to use such improvements, which license will be further governed by
Section 8.1(b) above. To the extent an improvement constitutes a Commissioned Work,
Customer retains all right, title and interest in such Commissioned Work as more fully described in
Section 8.4 below.



8.2 ACS Solution.




     Except as expressly set forth herein, ACS retains all right, title and interest in the ACS
Solution. Customer is hereby granted a limited license to use portions of the ACS Solution as
described in Sections 8.3 through 8.6 below.



8.3 ACS Software.




     (a) ACS hereby grants to Customer a limited, non-exclusive, non-transferable royalty-free
license to use the ACS Software and any end user documentation associated with such Software solely
for Customer’s internal business purposes to the extent necessary to receive the Services from ACS
during the Term of the applicable Statement of Work. The foregoing license grant is hereby made
subject to any access or other restrictions on use specified in any third-party license agreements
governing ACS Software.



     (b) The license granted to Customer pursuant to Section 8.3(a) will be an object-code
license only. Customer may not in any way adapt, vary, modify, transfer, reverse assemble, reverse
compile or otherwise reverse engineer or derive the source code of the ACS Software, in whole or in
part. Upon the request of Customer, ACS will provide such information as is necessary to allow
Customer to develop software that is interoperable with such ACS Software.



     (c) Customer’s access to the ACS Software will be limited to Authorized Users. In each case,
Authorized Users of a given ACS Software product will consist of Customer employees or agents who
have a need to access or support access of such ACS Software for the performance of Customer’s
internal business functions to receive the Services from ACS. In no event will Customer knowingly
enable an employee, contractor or agent of an ACS Competitor to be an Authorized User.



     (d) The license granted pursuant to this Section 8.3 will expire immediately upon
termination or expiration of the applicable Statement of Work. At such time the provisions of
Section 18.6 will apply.



8.4 Commissioned Work.




     As between ACS and Customer, Customer will own all right, title and interest in and to
Commissioned Work. Customer hereby grants to ACS, by way of present assignment , a perpetual,
worldwide, royalty-free, non-exclusive license to use, access, practice, embody, implement, load,
execute, store, transmit, display, copy, maintain, modify, enhance, create derivative works from,
make and have made any and all Commissioned Works or any part thereof to the extent necessary for
ACS to provide the Services to Customer.



8.5 Trademarks.




     In fulfilling their respective obligations under this Agreement, neither Party will modify,
alter or obscure the other Party’s trademarks or use the other Party’s trademarks in a manner that
disparages the other Party or its products or services, or portrays the other Party or its products
or services in a false, competitively adverse or poor light. Each Party will, and will cause each
of its Affiliates to, comply with the other Party’s instructions as to the form of use of the other
Party’s trademarks and will avoid any action that diminishes the value of such trademarks. Either
Party’s and/or any of its Affiliate’s unauthorized use of the other’s trademarks is strictly
prohibited.



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8.6 Work Product.




     (a) Any ideas, concepts, work product, business methods, know-how or techniques (and
Intellectual Property Rights therein) developed for Customer at Customer’s expense will, as between
Customer and ACS, be owned by Customer, and ACS will have no license to use such Intellectual
Property Rights except as expressly permitted pursuant to this Agreement.



     (b) Any ideas, concepts, work product, business methods, know-how or techniques (and
Intellectual Property Rights therein) developed by ACS at ACS’ expense, or any third party acting
on ACS’ behalf, whether in connection with this Agreement or otherwise (“Work Product”), will, as
between Customer and ACS, be owned by ACS, and Customer will have no license to use such
Intellectual Property Rights except as expressly permitted pursuant to this Agreement.



     (c) With respect to any modifications or enhancements made by ACS at the request of Customer
to any Third Party Software licensed by Customer after the Effective Date (“Customer Requested
Third Party Modifications”), prior to making any such modifications or enhancements, the Parties
will mutually agree in writing on the allocation of Intellectual Property Rights, including
ownership of such Customer Requested Third Party Modifications. In no event will the development
of and/or allocation of Intellectual Property Rights in such Customer Requested Third Party
Modifications be deemed to alter, modify, or amend, the rights and or obligations of each Party in
or to the Existing Customer Solution, ACS Solution, Commissioned Works, Work Product, or Residual
Information.



8.7 Customer Data.




     Nothing in Sections 8.1 through 8.6 above will be construed to convey any
right, title or interest in the Customer Data to ACS. To the extent necessary and contemplated in
this Agreement, Customer hereby grants ACS a limited, non-exclusive, license to use such Customer
Data to the extent required to deliver the Services, including specifically any
Termination/Expiration Assistance set forth in Section 18.6. ACS’ license to use the
Customer Data will expire automatically on the later of the expiration of the Term, termination of
this Agreement by either party or completion of the Termination/Expiration Assistance. Following
such expiration or termination of the Agreement or completion of the Termination/Expiration
Assistance, ACS agrees to return or destroy, at Customer’s option, all Customer Data and any copies
thereof in ACS’ possession or control. Customer will relieve ACS from its obligation to perform
the Services to the extent that ACS is required to return, erase, or destroy the Customer Data in
its possession and such return, erasure, or destruction prevents ACS from performing the Services.



8.8 Additional Acts.




     Each Party agrees to execute, and cause its employees, agents or subcontractors to execute,
any documents or take any other actions as may be reasonably necessary or as requested by the other
Party, to perfect each Party’s respective ownership rights as set forth in Sections 8.1
through 8.6 above.



8.9 Privacy Laws.




     The Parties acknowledge and agree that Customer will be and remain the controller of the
Customer Data for purposes of all applicable laws relating to data privacy, transborder data flow
and data protection (collectively, the “Privacy Laws”), and nothing in this Agreement or any
Statement of Work will restrict or limit in any way Customer’s rights or obligations as owner
and/or controller of the Customer Data for such purposes. The Parties also acknowledge and agree
that ACS may have certain responsibilities prescribed by applicable Privacy Laws as a processor of
the Customer Data and any other services provided hereunder, and ACS hereby acknowledges such
responsibilities to the extent required thereby for processors of data and any other services
provided hereunder, and agrees that such responsibilities will be considered as a part of the
Services to be provided by ACS under this Agreement and each Statement of Work. Notwithstanding the
above, in the event that Privacy Laws to which the activities contemplated by this Agreement and
each Statement of Work are subject are materially modified, ACS will work with Customer to continue
to comply with such Privacy Laws.



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8.10 Residual Information.




     Nothing in this Agreement shall be construed to limit or prohibit either Party from
independently creating or developing (or having created or developed for it), or from acquiring
from third parties, any information, products, concepts, processes, methodologies, systems,
techniques, and/or any general information, ideas, concepts, know-how, techniques, programming
routines and subroutines, methodologies, processes, skills, experience, and/or expertise
(collectively, “Residual Information”) that are similar to or compete with the information
products, concepts, processes, methodologies, systems, techniques, and/or Residual Information
contemplated by or embodied in the other Party’s Confidential Information, provided that (in
connection with such creation, development, or acquisition) the receiving Party does not (except as
otherwise specified in this Agreement) use the Customer Materials or ACS Materials, as applicable,
the disclosing Party’s Software or Confidential Information and/or otherwise violate any of its
obligations under this Agreement.



     Notwithstanding the foregoing (and except as otherwise specified in this Agreement), neither
Party shall, nor assist others to, (i) disassemble, decompile, reverse engineer, or otherwise
attempt to recreate, the Customer Material or ACS Material, as applicable, the other Party’s
Confidential Information, and/or ACS Software or Customer Software, (ii) modify, enhance, or create
derivative works based on the Customer Material or ACS Material, as applicable, the other Party’s
Confidential Information, or ACS Software or Customer Software, or (iii) rent, lease, grant a
security interest in, or otherwise transfer rights to the Customer Material or ACS Material, as
applicable, the other Party’s Confidential Information, or ACS Software or Customer Software.



9. CONFIDENTIALITY




9.1 Defined.




     Certain information which the Parties may exchange from time to time may be considered by the
Party disclosing such information to be confidential and proprietary in nature, including but not
limited to: (i) Customer Data, (ii) the Existing Customer Solution, (iii) any ACS proprietary
software licensed or otherwise made available to Customer, including, but not limited to, the ACS
Software, (iv) business plans or records of each Party made available to the other, (v) any and all
such other information that the disclosing Party specifies as confidential and provides to the
receiving Party (vi) the terms of this Agreement; (vii) and any other information that a reasonable
business person would deem confidential (collectively, “Confidential Information”). The Parties
agree to treat any and all Confidential Information that may be exchanged in accordance with the
terms of the Mutual Nondisclosure Agreement attached hereto as Schedule C.



9.2 Exclusions.




     The obligations of confidentiality will not apply to any Confidential Information that is (i)
publicly available or becomes so in the future without restriction, (ii) rightfully received by
either Party from a third party and not accompanied by confidentiality obligations, (iii) already
in the receiving Party’s possession and lawfully received from sources other than the disclosing
Party, (iv) independently developed by the receiving Party, or (5) approved in writing for release
or disclosure without restriction by the disclosing Party.



9.3 Limited Waivers.




     The terms of this Article 9 will not preclude the disclosure of Confidential
Information by either Party if such disclosure is (i) in response to a valid order of a court or
other governmental body of the United States or any political subdivision thereof, or (ii)
otherwise required by law; provided, however, that the Party from whom disclosure is sought will
provide written notice to the disclosing Party of such request and will limit the disclosure to the
extent required for such purposes.



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10. MANAGEMENT AND CONTROL




10.1 Project Executives.




     On or before each applicable Service Commencement Date, and from time to time thereafter
during the Term, Customer and (subject to Section 7.1 (Key ACS Positions)) ACS will each
designate an individual as its project executive (the “Project Executive”). A Party’s Project
Executive will be authorized to act as the primary contact for such Party with respect to all
matters relating to the applicable Statement of Work. Each Party will ensure that its respective
Project Executive has the authority necessary to allow such Project Executive to make prompt
decisions with respect to such Statement of Work and this Agreement.



10.2 Executive Committee.




     On or before each applicable Service Commencement Date, the Parties will form a joint
committee (the “Executive Committee”) as described in Schedule A, Attachment E
(Governance) and chaired by a senior level executive of Customer (who may delegate meeting protocol
duties to another senior level executive of Customer).



10.3 Meetings.




     Throughout the Term, the Parties at a minimum will hold those meetings and review the items
described in Schedule A, Attachment E (Governance)



10.4 [intentionally omitted].




10.5 Contract Change Control.




     (a) From time to time during the Term, Customer or ACS may propose changes in or additions to
the Services or other aspects of this Agreement. All such changes will be implemented pursuant to
the procedures set forth in this Section 10.5 (the “Change Control Procedures”).



     (b) If Customer desires to propose a change in or addition to the Services or other aspects of
this Agreement, Customer’s Project Executive (or a person authorized in writing by Customer’s
Project Executive) will deliver a written notice to the ACS Project Executive describing the
proposal. ACS will respond to such proposal as promptly as reasonably possible by preparing, at
ACS’ expense, and delivering to the Customer Project Executive a written document , indicating:
(i)the effect of the proposal, if any, on the Charges and the manner in which such effect was
calculated; (ii) the effect of the proposal, if any, on Service Levels and any necessary revisions
thereto; (iii) the anticipated time schedule for implementing the proposal; and (iv) any other
information requested in the proposal or reasonably necessary for Customer to make an informed
decision regarding the proposal (“Change Control Document”).



     (c) If ACS desires to propose a change in or addition to the Services, or the manner of their
delivery as set forth in the Statement of Work, or other aspects of this Agreement, it may do so by
preparing and delivering, at its expense, and a Change Control Document to the Customer Project
Executive.



     (d) No change in or addition to the Services or any other aspect of this Agreement will become
effective without the written approval of each Party’s authorized representative. If Customer
elects to accept the offer set forth in the Change Control Document, as evidenced by the written
approval of the Customer Project Executive, any changes in or additions to the Services described
in the Change Control Document will thereafter be deemed “Services,” any other changes described in
the Change Control Document will be deemed to have amended this Agreement, and the Parties will
agree on any further modifications to the Agreement required to reflect the Change Control
Document.



10.6 Subcontracting.




     ACS may, in the ordinary course of business subcontract any portion of the Services, provided,
however, that prior to subcontracting any material component of the Services, ACS will notify
Customer of the proposed



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subcontract and will obtain Customer’s prior written approval of such subcontract. Customer
will not unreasonably withhold its approval for such subcontractors. Notwithstanding the
foregoing, ACS may not, without the written consent of Customer, subcontract to a third party any
of the Services that will or may require such third party to have access to Customer facilities. No
subcontracting will release ACS from its responsibility for its obligations under this Agreement.
In no event will ACS will disclose Customer Confidential Information to a subcontractor unless and
until such subcontractor has agreed in writing to protect such information in a manner
substantially equivalent to that required of ACS under this Agreement, and then only as necessary
for the subcontractor to perform its obligations under the Agreement.



11. CUSTOMER REVIEW RIGHTS




11.1 General.




     Employees of Customer and its auditors who are from time to time designated by Customer, and
in the case of third-party auditors, are not an ACS Competitor, and who agree in writing to the
security and confidentiality obligations and procedures reasonably required by ACS will be provided
with reasonable access to any facility at which the Services are being performed to enable them to
conduct audits of ACS’ performance of the Services and other matters relevant to this Agreement,
including (i) verifying the accuracy of ACS’ charges to Customer (ii) verifying that the Services
are being provided in accordance with this Agreement, including any Service Levels, and (iii)
ascertaining compliance with applicable law, rule, or regulation, including, without limitation,
the Sarbanes-Oxley Act.



11.2 Procedures.




     Such audits may be conducted once a year (or more frequently if requested by the governmental
authorities who regulate Customer’s business or if auditors require follow-up access to complete
audit inquiries) during reasonable business hours upon commercially reasonable notice;
provided, however, that the Parties may agree to more frequent audits as deemed
reasonably necessary. Customer will provide ACS with prior written notice of an audit. ACS will
cooperate in the audit, will make the information reasonably required to conduct the audit
available on a timely basis and will assist the designated employees of Customer or its auditors as
reasonably necessary. If Customer requests resources beyond those resources then assigned to the
account team who are able to provide reasonable assistance of a routine nature in connection with
such audit, such resources will be provided as Additional Services. Records that support ACS’
performance of the Services and other matters relevant to this Agreement will be retained by ACS in
accordance with the retention guidelines set forth in Section 11.5. Notwithstanding
anything to the contrary in this Agreement, ACS will not be required to provide access to the
proprietary data of ACS related to its underlying costs or profit margins or other ACS customers.
All information learned or exchanged in connection with the conduct of an audit, as well as the
results of any audit, is confidential.



11.3 Results.




     Following an audit, Customer will conduct an exit conference with ACS to discuss issues
identified in the audit that pertain to ACS. The Parties will review each ACS audit issue and will
determine (i) what, if any, actions will be taken in response to such audit issues, when and by
whom and (ii) which Party will be responsible for the cost of taking the actions necessary to
resolve such issues in accordance with the Parties’ obligations as set forth in Section
3.9.



11.4 Audit of the Charges.




     Upon reasonable notice from Customer, ACS will provide Customer and Customer agents with
access to such financial records and supporting documentation as may be reasonably requested by
Customer in connection with or relating to the Charges for the purposes of performing audits and
inspections of ACS’ performance and to determine that such Charges are accurate and in accordance
with this Agreement and that work charged was actually performed. If, as a result of such audit,
Customer determines that ACS has overcharged Customer, Customer will notify ACS of the amount of
such overcharge and ACS will promptly investigate the same and if findings show Customer is correct
then ACS will promptly pay to Customer the amount of the overcharge. In the event any such audit
reveals an overcharge to Customer during any 12-month period exceeding five percent (5%) of all
Charges in



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the aggregate paid by Customer under this Agreement during such period and ACS fails to
demonstrate within thirty (30) days of receipt of such audit, to Customer’s reasonable
satisfaction, that the overcharges did not exceed five percent (5%) of the Charges, then ACS will
reimburse Customer for the cost of such audit. In no event will ACS be obligated to disclose its
underlying costs or profit margins to Customer or its auditors.



     In the event any such audit reveals an undercharge, Customer will promptly pay to ACS the
amount of any such undercharge forty-five (45) days from receipt of an invoice for the same.



     If, as a result of such audit, Customer determines that ACS has not performed, ACS will
promptly remedy the non-performance and/or issue a credit for the Charges related to the Services
that were not provided in accordance with this Agreement. If Customer determines that ACS has not
performed, ACS may at its option within 30 days secure, at its sole expense, an independent,
nationally-recognized, reputable auditing firm to review the result of such audit and issue an
independent report to ACS and Customer regarding ACS’ performance (or non-performance). In the
event the auditing firm selected by ACS issues a report regarding ACS’ performance that is
substantially different than Customer’s determination of non-performance, then Customer and ACS
will agree upon an approach to remedy any non-performance. However, in the event the auditing firm
selected by ACS issues a report regarding ACS’ performance that is not substantially different than
Customer’s determination of non-performance, then ACS will promptly remedy the non-performance
and/or issue a credit with accrued Interest for the Charges paid to ACS for the Services that were
not provided in accordance with this Agreement.



11.5 Record Retention.




     Unless otherwise specified in the applicable Statement of Work, ACS will retain all records
and Confidential Information for a period of six (6) years. Upon expiration or termination of the
Agreement, ACS will return to Customer all records and Confidential Information.



11.6 Survival.




     Customer’s audit rights will survive expiration or termination of this Agreement for a period
of two (2) years.



11.7 Storage and Return of Records.




     ACS will provide commercially reasonable storage space and media required for proper storage
of the records and documentation. At the expiration or termination of this Agreement at Customer’s
discretion, Customer may request that the ACS deliver to Customer the records and supporting
documentation specified in the applicable Statement of Work.



12. INSURANCE; RISK OF LOSS




12.1 Required Insurance Coverages.




     During the Term, each Party will maintain at its own expense, in addition to all legally
required insurance, policies of insurance in such amounts and on such other terms and conditions as
it reasonably determines are necessary with regard to its business, provided that the amounts and
other terms and conditions of such policies must be at least equivalent to policies appropriate for
and typically maintained by other companies of comparable size engaged in similar business
activities. Notwithstanding the foregoing, ACS agrees to maintain commercial general liability
insurance with a minimum limit of $5,000,000 per claim and an aggregate limit of no less than
$10,000,000. Each such ACS policy shall name Customer as an additional insured. ACS’ insurance
shall be primary and not be entitled to contribution from any insurance maintained by Customer.
Each Party will provide, upon written request, proof of its insurance coverage (such as a
certificate of insurance executed by an authorized representative of the Party). Such certificates
shall require that the policies shall not be canceled or reduced in coverage until thirty (30) days
written notice of such cancellation or reduction has been received by the other Party. All
coverages for subcontractors shall be subject to all of the requirements stated herein. In
addition, the insurance requirements set forth in this Section 12.1 will not limit or
expand ACS’ liability under or related to the Services or this Agreement.



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13. CHARGES




13.1 Charges for Services.




     In consideration for the performance of the Services, Customer will pay to ACS the Charges
(defined as the Base Charges and any Variable Charges) set forth in Schedule A,
Attachment A (Pricing), plus any taxes and duties further described in Section
13.10 below.



13.2 Invoicing.




     Unless otherwise specified in an applicable Statement of Work, ACS will invoice Customer, on a
monthly basis as follows: (i) Base Charges will be invoiced on or before the tenth
(10th) day of each month for which the Services are to be provided, such Base Charges
will be payable to ACS within forty-five (45) days from the date of invoice and (ii) all Variable
Charges will be invoiced to Customer within ten (10) days following the end of the month in which
such Charges are incurred and the undisputed portion of all such Variable Charges will be payable
to ACS within forty-five (45) days from date of invoice. By way of illustration: If Customer’s
Base Charges for the month of June in a given year were $150,000, such amount would be invoiced to
Customer on or before June 10th of that month. If Customer’s Variable Charges for the
month of June equaled $5,000 (based for example on ARC/RRC calculations and/or other variable
components), ACS would invoice the amount on or before July 10th, and the undisputed
portion of that Variable Charge for June Services would be owed to ACS within forty-five (45) days
of date of invoice.



13.3 Performance Credits.




     In the event the accumulated Performance Credits for a calendar year exceeds the accumulated
Earnback Credits for a calendar year described in Section 5.4 above (such excess, if any,
will be referred to as the “Net Annual Performance Credit”), then Customer may assess against ACS’
next invoice a credit in an amount not to exceed the Net Annual Performance Credit. If no further
amounts are payable to ACS under the applicable SOW, ACS will pay the amount of the Performance
Credit to Customer within thirty (30) days after the Performance Credit is earned.



13.4 Prorated Charges.




     All periodic Charges under this Agreement (excluding Charges based upon actual usage or
consumption of Services) will be computed on a calendar month basis, and will be prorated for any
partial month.



13.5 Disputed Amounts.




     If Customer in good faith disputes all or any portion of an invoice for Charges, then Customer
will pay the undisputed portion of the invoice by the due date and Customer will notify ACS as soon
as possible of the specific amount disputed and will provide reasonable detail as to the basis for
the dispute. Except as provided in this Agreement, Customer will not withhold timely payment of any
undisputed amount pending resolution of the disputed amount and ACS will continue to provide the
Services pending resolution of the dispute. Promptly after Customer notifies ACS of the dispute,
the Parties will then attempt to resolve the disputed portion of such invoice in accordance with
the informal dispute resolution procedures set forth in Section 19. If Customer and ACS
are unable to resolve the disputed amount in 10 days and the disputed amount exceeds five (5%)
percent of the Base Charges, Customer will deposit the disputed amount in an escrow account
established by agreement of Customer and ACS pending a resolution of the dispute. Only Customer’s
Variable Charges may be subject to the withholding mechanism described in this Section
13.5. In no event will ACS have the right to withhold Services for any reason; provided,
however that ACS will have the right to terminate this Agreement for cause in accordance with
Section 18.1(c) of the Agreement for Customer’s failure to pay undisputed amounts.



13.6 Late Payment.




     Any Charges due to ACS under this Agreement that are not paid on the date otherwise due will
thereafter bear Interest until paid.



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13.7 Pass-Through Expenses.




     Subject to the provisions of this Section 13.6, Customer will pay all Pass-Through
Expenses. ACS will review for accuracy the third party invoice for any Pass-Through Expenses and
will pay when due to such third party all valid amounts set forth on such invoice. ACS will
include the amount of such payment on its next invoice to Customer and will include with such
invoice a copy of the third party invoice. Pass-through expenses will be amended as needed within
each Statement of Work.



13.8 ACS Personnel.




     ACS bears sole responsibility for payment of all compensation, fringe benefits, payroll taxes,
contributions and other, similar costs for ACS’ employees.



13.9 Record Keeping.




     ACS will maintain complete and accurate records of, and supporting documentation for, the
amounts billed to and payments made by Customer under this Agreement or the Statement of Work. ACS
will retain such records throughout the Term and for six (6) years thereafter. ACS will provide
Customer, at Customer’s request, with paper and electronic copies of documents and information
reasonably necessary to verify ACS’ compliance with this Agreement. Customer and its authorized
agents and representatives will have access to such records for audit purposes during normal
business hours during the Term and thereafter for the period during which ACS is required to
maintain such records.



13.10 Taxes.




     Each Party will pay any real property taxes or personal property taxes on property it either
owns ,leases or subleases.



     (a) ACS will pay any sales, use, excise, value-added, services, consumption, and other taxes
and duties imposed on any goods acquired, used or consumed by ACS in connection with the Services
(excluding any taxes applicable to Pass-Through Expenses).



     (b) In addition to invoicing Customer for the Charges associated with the Services, ACS will
invoice amounts equal to the taxes, assessments, duties, permits, fees and other charges of any
kind, however designated, assessed, charged or levied, based on, with respect to or measured by (i)
such Charges, (ii) this Agreement or (iii) the Services, Software, Equipment, Materials or other
property (intangible or intangible) or, the use thereof or the resources used therefore, provided
under this Agreement. ACS will either remit these taxes on Customer’s behalf, in which case
Customer will reimburse ACS for such amounts, or Customer will pay such amounts directly to the
applicable taxing authority.



     (c) The Parties will cooperate with each other to enable the Parties to determine accurately
their respective tax liabilities and to reduce such liabilities to the extent permitted by law.
ACS invoices to Customer will separately state the amount of any taxes ACS is collecting from
Customer.



13.11 Charges Pursuant to Change Control Procedures.




     (a) If either Customer or ACS proposes a change in or addition to the Services pursuant to the
Change Control Procedures, the charge for such change or addition will be determined in the manner
set forth in this Section.



     (b) To the extent the proposed change or addition can be accommodated within the existing
level of resources then being used by ACS to provide the Services and without degradation to
existing Service Levels (unless otherwise agreed by the Parties in writing), the Charges payable by
Customer under this Agreement will not be



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increased. To the extent the proposed change or addition will increase or lower ACS’ cost to
provide the Services thereafter, the Charges payable by Customer under this Agreement will be
equitably adjusted as appropriate.



     (c) To the extent the proposed change or addition will require the addition or subtraction of
resources for which a pricing metric exists under this Agreement, the resulting change to the
Charges payable by Customer hereunder will be calculated in accordance with that pricing metric.



13.12 Gain Sharing.




     ACS and Customer will bring forward proposals (each an “Improvement Proposal”) which improve
the efficiency of the delivery of the Services and that are commercially reasonable under
prevailing industry practices and standards applicable to the services in question. To the extent
Customer and ACS agree to implement any such Improvement Proposal, and such Improvement Proposal
results in an increase in ACS’ profit margin in an amount (the “Excess Amount”) which is greater
than twenty-five percent (25%) of the current average profit margin to date, then Customer and ACS
agree to share equally in such Excess Amount.



14. POLICIES AND PROCEDURES; CUSTOMER DATA




14.1 Compliance with Procedures.




     ACS will perform the Services in compliance with the policies and procedures set forth in the
applicable Statement of Work.



14.2 Accuracy of Customer Data and Processing.




     Customer will be responsible for the accuracy and completeness of any information, materials
or data that Customer or its Affiliates provide to ACS, and for the accuracy and completeness of
Customer’s transmission to ACS of such information, materials or data. ACS will be responsible for
the accuracy and completeness of ACS’ systems electronic receipt of any such information, materials
or data, and for the accuracy and completeness of information, materials or data that ACS provides
or transmits. ACS will promptly correct any errors or inaccuracies attributable to ACS in Customer
Data or reports discovered by Customer and identified to ACS, or discovered by ACS or any errors or
inaccuracies that ACS should have reasonably discovered. Such corrections will be provided at no
charge to Customer. Corrections and reruns will be reported in reports defined jointly by Customer
and ACS and produced by ACS. Customer acknowledges and agrees that the foregoing is not intended to
obligate ACS to correct any errors in Customer systems or software outside of ACS’ reasonable
control which cause such errors or inaccuracies. ACS will not be responsible for errors in or the
delay or nonperformance of its responsibilities or obligations under this Agreement to the extent
caused by the inaccuracy and/or incompleteness of information, materials, or data provided to ACS
by Customer, its Affiliates or the third party providers or by the failure of Customer, its
Affiliates or the third party providers to furnish information, materials or data. Notwithstanding
the foregoing, ACS will promptly notify Customer in writing of all inaccuracies, insufficiencies or
errors discovered by ACS in such Customer information, materials or data or if there is any
information, materials or data that ACS requires Customer to furnish. ACS will promptly correct
all such inaccuracies and errors in such Customer information, materials or data, and in any errors
in the Services caused by the inaccuracies or errors in such Customer information, materials or
data. Customer will indemnify, defend and hold harmless ACS, its Affiliates and ACS’ directors,
officers and employees and their respective successors and assigns from and against all Losses
arising from third-party claims resulting from any inaccuracies in or incompleteness of any
information or materials, including, but not limited to, the Customer Data, provided by Customer,
its Affiliates or third parties to ACS under this Agreement. ACS will indemnify, defend and hold
Customer, its Affiliates and Customer’s directors, officers and employees and their respective
successors and assigns from and against all Losses resulting from (i) any inaccuracies in or
incompleteness of any information or materials, including, but not limited to, the Customer Data
caused by the acts or omissions of ACS, or (ii) ACS’ failure to correctly perform the Services
and/or accurately



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process Customer transactions as required by the policies and procedures set forth in the
applicable Statement of Work.



14.3 Review of ACS Materials.




     Customer will endeavor to promptly notify ACS in writing of all inaccuracies, insufficiencies
or errors found in the ACS Materials or any other information, materials and data provided to
Customer by ACS.



15. REPRESENTATIONS AND WARRANTIES




15.1 Mutual Representations and Warranties.




     Each Party represents and warrants that, as of the Effective Date:



     (a) it is a corporation duly incorporated, validly existing and is in good standing under the
laws of the state in which it is incorporated, and is good standing in each other jurisdiction
where the failure to be in good standing would have a material adverse affect on its business or
its ability to perform its obligations under this Agreement;



     (b) it has all necessary corporate power and authority to own, lease and operate its assets
and to carry on its business as presently conducted and as it will be conducted pursuant to this
Agreement;



     (c) it has all necessary corporate power and authority to enter into this Agreement and to
perform its obligations hereunder, and the execution and delivery of this Agreement and the
consummation of this transactions contemplated by this Agreement have been duly authorized by all
necessary corporate actions on its part;



     (d) this Agreement constitutes a legal, valid and binding obligation of such Party,
enforceable against it in connection with its terms;



     (e) to its knowledge, it is not a party to, and is not bound or affected by or subject to, any
instrument, agreement, charter or by-law provision, law, rule, regulation, judgment or order which
would be contravened or breached as a result of the execution of this Agreement or consummation of
the transactions contemplated by this Agreement;



     (f) it will exercise commercially reasonable efforts to screen any Software provided, or
otherwise made available by it to the other Party under this Agreement for the purpose of avoiding
the introduction of any computer virus; and



     (g) ACS will comply with all applicable laws, rules and regulations related to its delivery of
the Services and Customer will comply with all applicable laws, rules and regulations related to
its receipt of the Services.



15.2 ACS Representations and Warranties.




     ACS represents and warrants to Customer that:



     (a) As of the Effective Date, it has not violated any applicable laws or regulation or any
Customer policies regarding the offering of unlawful inducement in connection with this Agreement;



     (b) It has as of the Effective Date, and will have throughout the Term, the right and
authority to use the ACS Materials and the ACS Solution to provide Services during the Term and to
grant to Customer the licenses described in this Agreement; and



     (c) the Services will be performed in a professional and workmanlike manner by ACS using
qualified individuals who are sufficiently trained to perform their responsibilities in conjunction
with the rendering of the Services.



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15.3 Regulatory and Corporate Proceedings.




     Each Party will obtain all regulatory approvals, independently examine government regulations
applicable to its business that may affect the Services, obtain any necessary permits and comply
with any regulatory requirement associated with its business and this Agreement that may affect the
Services. Each Party will from time to time inform the other in writing of regulatory or legal
requirements specific to its business that may affect the Services.



16. INDEMNIFICATION




16.1 Mutual Indemnification.




     Each Party will indemnify, defend and hold harmless the other Party, and their respective
officers, directors, employees, successors and assigns, from and against all Losses arising from:
(i) death of or injury to any agent, employee, customer, invitee, visitor or other person to the
extent caused by the negligent or willful acts or omissions of the indemnitor, or its respective
agents, employees or contractors, (ii) damage to, or loss or destruction of, any real or tangible
personal property, to the extent caused by the errors, or acts or omissions of the indemnitor, or
its respective agents, employees or contractors and (iii) any breach of its respective
representations and warranties set forth in Sections 15.1 and 15.2.



16.2 Intellectual Property Indemnification.



     Customer and ACS each agree to defend and hold harmless the other against any third party
action to the extent that such action is based on a claim that the Customer Materials and/or the
Existing Customer Solution, in the case of Customer, and the ACS Materials and/or the ACS Solution,
in the case of ACS, or the Confidential Information provided by the indemnitor, or any party
thereof or any other intellectual property right of a Party (i) infringes a copyright under United
States law, (ii) infringes a patent granted or pending under United States law or (iii) constitutes
an unlawful disclosure, use or misappropriation of another party’s trade secret. The indemnitor
will bear the expense of such defense and pay any damages and reasonable attorneys’ fees that are
attributable to such claim finally awarded by a court of competent jurisdiction or any costs
associated with settlement of said claim.



     If the Customer Materials, Existing Customer Solution, ACS Materials, ACS Solution, any
Confidential Information or any other intellectual property right of a Party becomes the subject of
a claim under this Section, or in the indemnitor’s opinion is likely to become the subject of such
a claim, then the indemnitor may, at its option, (a) modify the Customer Materials or Existing
Customer Solution (if the indemnitor is Customer) or the ACS Materials or ACS Solution (if the
indemnitor is ACS) or Confidential Information or other intellectual property right of a Party to
make it noninfringing or cure any claimed misuse of another’s trade secret, provided such
modification does not adversely affect the functionality of the Customer Materials, Existing
Customer Solution, ACS Materials, or ACS Solution, as applicable or (b) procure for the indemnitee
the right to continue using the Customer Materials, Existing Customer Solution, ACS Materials, or
ACS Solution, as applicable or Confidential Information or other intellectual property right of a
Party pursuant to this Agreement, or (c) replace the Customer Materials, Existing Customer
Solution, ACS Materials, or ACS Solution or other intellectual property right of a Party, as
applicable with substantially equivalent Software that is noninfringing or that is free of claimed
misuse of another’s trade secret. Any costs associated with implementing any of the above
alternatives will be borne by the indemnitor.



     With respect to any Software provided or developed by a Party pursuant to this Agreement, such
Party will have no liability to the other Party under this Agreement (a) to the extent that any
claim of infringement is based upon the use of the Software in connection or in combination with
equipment, devices or Software not supplied by that Party or used in a manner for which the
Software was not designed, (b) for infringements that arise solely as a result of the
implementation by that Party of functionality requirements presented by the other Party where there
is no non-infringing alternative to such implementation, and the other Party has been so advised by
that Party prior to implementation, and (c) for maintenance, modifications, updates, enhancements
and improvements to the Software made by any Party other than that Party.



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16.3 Indemnification Procedures.




     (a) Promptly after receipt by an indemnitee of any written claim or notice of any third party
action giving rise to a claim for indemnification by the indemnitee, the indemnitee will so notify
the indemnitor and will provide, as soon as reasonably possible, copies of such claim or any
documents relating to the action. Failure to so notify an indemnitor will not relieve the
indemnitor of its obligations under this Agreement except to the extent that such failure or delay
is prejudicial to indemnitor. Within thirty (30) days following receipt of such written notice,
but in any event no later than ten (10) days before the deadline for any responsive pleading, the
indemnitor will notify the indemnitee in writing (a “Notice of Assumption of Defense”) if the
indemnitor elects to assume control of the defense and settlement of such claim or action.



     (b) If the indemnitor delivers a Notice of Assumption of Defense with respect to a claim
within the required period, the indemnitor will have sole control over the defense and settlement
of such claim; provided, however, that (i) the indemnitee will be entitled to participate in the
defense of such claim and to employ counsel at its own expense to assist in the handling of such
claim and (ii) the indemnitor will obtain the prior written approval of the indemnitee before
entering into any settlement of such claim or ceasing to defend against such claim. After the
indemnitor has delivered a timely Notice of Assumption of Defense relating to any claim, the
indemnitor will not be liable to the indemnitee for any legal expenses incurred by such indemnitee
in connection with the defense of such claim; provided, that the indemnitor will pay for separate
counsel for the indemnitee to the extent that conflicts or potential conflicts of interest between
the Parties so require. In addition, the indemnitor will not be required to indemnify the
indemnitee for any amount paid by such indemnitee in the settlement of any claim for which the
indemnitor has delivered a timely Notice of Assumption of Defense if such amount was agreed to
without prior written consent of the indemnitor, which will not be unreasonably withheld or delayed
in the case of monetary claims. An indemnitor may withhold consent to settlement of claims of
infringement affecting its proprietary rights in its sole discretion.



     (c) If the indemnitor does not deliver a Notice of Assumption of Defense relating to a claim
within the required notice period, the indemnitee will have the right to defend the claim in such a
manner as it may deem appropriate, at the cost and expense of the indemnitor. The indemnitor will
promptly reimburse the indemnitee for all such costs and expenses upon written request therefor.



17. LIMITATIONS ON LIABILITY




17.1 Limit on Types of Damages Recoverable.




     (a) EXCEPT AS SET FORTH IN CLAUSE (b) BELOW AND TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, EACH
PARTY DISCLAIMS LIABILITY FOR AND IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, INDIRECT,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.



     (b) The exclusion set forth in clause (a) above will not apply to Losses arising from a
third-party claim otherwise recoverable by an indemnitee pursuant to Article 16
(Indemnification), statutory penalties arising as a result of a material breach of Section
8.9 (Privacy Laws), Article 9 (Confidentiality) and statutory penalties arising as a
result of a material breach of Section 14.2 (Accuracy of Customer Data and Processing).



17.2 Limit on Amount of Direct Damages Recoverable.




     (a) ACS’ cumulative liability for any and all damages arising out of or relating to its
performance of the Services performed pursuant to a Statement of Work under this Agreement will not
exceed the lesser of (i) Customer’s actual proven direct damages for the event(s) giving rise to
the cause(s) of action or (ii) the total Charges payable to ACS for the Services provided under the
applicable Statement of Work for the nine (9) calendar months immediately preceding the month in
which the event giving rise to the liability occurred (or, if the event giving rise to the
liability occurs during the first nine (9) months after the Service Commencement Date, the total
Charges payable to ACS pursuant to the applicable Statement of Work under this Agreement for such
nine (9) months). This limitation will not apply to losses or damages attributable to claims by an
indemnitee pursuant to Article 16



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(Indemnification) statutory penalties arising as a result of a material breach of Section
8.9 (Privacy Laws), Article 9 (Confidentiality), statutory penalties arising as a
result of a material breach of Section 14.2 (Accuracy of Customer Data and Processing),
claims relating to any amounts or credits due Customer from ACS under this Agreement as set forth
in this Agreement, claims relating to ACS’ willful or intentional misconduct or gross negligence or
claims submitted for coverage under ACS’ commercial general liability policies set forth in Section
12.1 as such policies are required to be maintained by ACS up to the amount of the proceeds
received under such policies for the subject claim.



     (b) Customer’s cumulative liability for any and all damages arising out of or related to this
Agreement will not exceed an amount equal to the total Charges payable to ACS under the applicable
Statement of Work for the nine (9) calendar months immediately preceding the month in which the
event giving rise to the liability occurred (or, if the event giving rise to the liability occurs
during the first nine (9) months after the Commencement Date, the total Charges payable to ACS
pursuant to the applicable Statement of Work under this Agreement for such first nine (9) months).
] This limitation will not apply to losses or damages attributable to (i) claims by an indemnitee
pursuant to Article 16 (Indemnification), statutory penalties arising as a result of a
material breach of Section 8.9 (Privacy Laws), Article 9 (Confidentiality),
statutory penalties arising as a result of a material breach of Section 14.2 (Accuracy of
Customer Data and Processing), claims relating to Customer’s willful or intentional misconduct or
gross negligence, or claims relating to the failure by Customer to pay undisputed amounts under
this Agreement or any Termination Fees as set forth in this Agreement.



     (c) Each Party will have a duty to mitigate damages as provided by applicable law.



17.3 Force Majeure.




     (a) Subject to clause (d) below, neither Party will be liable for any failure or delay in the
performance of its obligations (excluding Customer’s obligation to pay the Charges, but not delay
in payment) under this Agreement, if any, to the extent such failure or delay both:



          (i) is caused, directly or indirectly, without fault by such Party, by: fire, flood,
earthquake, elements of nature or acts of God; acts of war, terrorism, riots, civil disorders,
rebellions or revolutions; quarantines, embargoes and other governmental action; or any other cause
beyond the reasonable control of such Party; and



          (ii) could not have been prevented by reasonable precautions and cannot reasonably be
circumvented by the non-performing Party through the use of alternate sources, work-around plans or
other means (including, in the case of ACS, compliance with ACS’ obligations with respect to the
provision of disaster recovery services as set forth in Schedule A, Attachment D
(Disaster Recovery Plan).



     Events meeting both of the criteria set forth in clauses (i) and (ii) above are referred to
collectively as “Force Majeure Events.”



     (b) Subject to clause (d) below, upon the occurrence of a Force Majeure Event, the
non-performing Party will be excused from any further performance or observance of the affected
obligation(s) for as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance whenever and to whatever extent possible
without delay. Any Party so delayed in its performance will immediately notify the other by
telephone or by the most timely means otherwise available (to be confirmed in writing within a
reasonable time and describe in reasonable detail the circumstances causing such delay.



     (c) If a Force Majeure Event causes a material failure or delay in the performance of any
Services for more than 5 consecutive Business Days, Customer may, procure such Services from an
alternate source until ACS is again able to provided such Services, and Customer will be liable for
all payments made and costs incurred by Customer required to obtain the Services from such
alternate source during such period; and provided, however, Customer will not be obligated to
continue to pay ACS the Charges established during such period, but ACS will not be entitled to any
additional payments as a result of the Force Majeure Event, and Customer expressly agrees to



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exercise commercially reasonable efforts to mitigate any charges payable to any third party
under this Section 17.3(c); or



     (d) If the circumstance described in Section 17.3(c) above continues for more than 60
consecutive days, Customer may terminate the applicable Statement of Work so affected and the
charges payable hereunder will be equitably adjusted to reflect those terminated Services.



     (e) Notwithstanding any other provision of this Section, a Force Majeure Event will not
relieve ACS of its obligation to implement the applicable disaster recovery measures.



17.4 Actions of Other Party.




     Neither Party will be liable for any failure or delay in the performance of its obligations
under this Agreement if and to the extent such failure or delay is caused by the actions or
omissions of the other Party or breaches of this Agreement by the other Party provided that the
Party which is unable to perform has provided the other Party with reasonable notice of such
non-performance and has used commercially reasonable efforts to perform notwithstanding the
actions, omissions or breaches of the other Party.



18. TERMINATION




18.1 Termination for Cause.




     (a) Either Party will have the option, but not the obligation, to terminate this Agreement or
an applicable Statement of Work upon thirty (30) days prior written notice if the other Party
materially breaches this Agreement, or the affected Statement of Work, as applicable, and fails to
cure such breach within such thirty (30) day time period. For purposes of this Section
18.1(a), Customer acknowledges and agrees that its failure to pay undisputed amounts to ACS
constitutes a material breach of this Agreement.



     (b) Either Party will have the option, but not the obligation, to terminate this Agreement or
any applicable Statement of Work upon thirty (30) days prior written notice in the event the other
Party commits a series of non-material breaches (other than in the case of ACS Service Level
Failures) which, in the aggregate constitute a material breach provided that the Party said to be
in breach will have such thirty (30) day time period in which to cure the condition(s) of breach.



     (c) Customer will have the option, but not the obligation, to terminate this Agreement or any
applicable Statement of Work upon thirty (30) days prior written notice upon the occurrence of a
Service Level Termination Event.



18.2 Exercise of Rights.




     (a) In the event a Party has a right to terminate this Agreement or any Statement of Work
under Section 18.1, above, that Party must exercise such right within ninety (90) days of
the event(s) giving rise to the right of termination, or it will be deemed to have waived such
right(s), but such waiver will not adversely affect any future rights of termination that may
accrue to such Party.



     (b) The non-breaching Party will exercise its termination option by delivering to the
breaching Party written notice of such termination identifying the scope of the termination and the
termination date.



18.3 Termination for Convenience.




     After the expiration of the second (2nd) Contract Year, Customer will have the option to
terminate the Services for convenience upon no less than ninety (90) days’ notice. Prior to the
effective date of any such termination, Customer will pay to ACS: (i) Charges for Services
provided up through the effective date of such termination and (ii) the early termination fees set
forth in the applicable Statement of Work.



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18.4 Termination for Insolvency.




     Either Party will have the option, but not the obligation, to terminate this Agreement in its
entirety (i) becomes insolvent or is unable to meet its debts as they mature, (ii) files a
voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement
with creditors, (iii) files an answer or other pleading admitting, or fails to deny or contest, the
material allegations of an involuntary petition filed against it pursuant to any act of Congress
relating to bankruptcy, arrangement or reorganization, (iv) is adjudicated a bankrupt or makes an
assignment for the benefit of its creditors generally, (v) applies for, consents to or acquiesces
in the appointment of any receiver or trustee for all or a substantial part of its property, or
(vi) any such receiver or trustee is appointed and not discharged within thirty (30) days after the
date of such appointment. A Party will exercise its termination option by delivering to the other
Party, within six (6) months after the any one or more of such events, written notice of such
termination identifying the termination date (which will be at least thirty (30) days after the
date of such notice).



18.5 Extension of Termination Effective Date.




     The Parties may agree to extend the termination date specified pursuant to this Article
18 one or more times, provided that the total of all such extensions will not exceed one (1)
year and each such extension may be no less than ninety (90) days in duration.



18.6 Effect of Termination.




     Termination of this Agreement or any categories of Services for any reason under this
Article 18 will not affect (i) any liabilities or obligations of either Party arising
before such termination or out of the events causing such termination or (ii) any damages or other
remedies to which a Party may be entitled under this Agreement, at law or in equity arising from
any breaches of such liabilities or obligations.



18.7 Termination/Expiration Assistance.




     (a) Commencing six (6) months before the expiration of the Term or, if applicable, upon
delivery of a termination notice by Customer or ACS pursuant to this Article 18, and
continuing until the expiration of the Term or, if applicable, the termination date (as it may be
extended pursuant to Section 18.5 (Extension of Termination Effective Date), ACS will
provide to Customer or Customer’s designee the assistance reasonably requested by Customer to
enable any or all of the Services to continue without interruption and to facilitate the orderly
transfer of the Services to Customer or its designee (“Termination/Expiration Assistance”).
Notwithstanding the above, in the event that this Agreement is terminated by ACS for non-payment
pursuant to Section 18.1(c), Customer must prepay, on a monthly basis, all Charges
commencing with the first date of Termination/Expiration Assistance by ACS.



     (b) At Customer’s request, ACS will provide to Customer for up to six (6) months after the
expiration date of the Term or, if applicable, the effective date of termination, any and all of
the Services being performed by ACS prior to such date, including, without limitation,
Termination/Expiration Assistance. This Agreement will continue to govern the performance of all
such Services during such period, except that (i) the charge for such Services will be the rates in
effect as of the expiration or termination date., and (ii) the charge for any
Termination/Expiration Assistance services not included in the Services will be fair and reasonable
and consistent with industry standards. The Termination/Expiration Assistance will be provided to
Customer at no additional cost in connection with any expiration or non-renewal of the Term of this
Agreement or if this Agreement is terminated by Customer for breach. Notwithstanding the above, in
the event this Agreement is terminated by ACS pursuant to Section 18.1, Customer must
prepay, on a monthly basis, all Charges commencing with the first date of Termination/Expiration
Assistance by ACS.



     (c) Customer will relieve ACS from its obligation to perform Termination/Expiration Assistance
to the extent that ACS is required to return, erase, or destroy the Customer Data in its possession
and such return, erasure, or destruction prevents ACS from performing the Termination/Expiration
Assistance.



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19. DISPUTE RESOLUTION




19.1 General.




     Any dispute or controversy between the Parties with respect to the interpretation or
application of any provision of this Agreement or the performance by ACS or Customer of their
respective obligations hereunder will be resolved as provided in this Article.



19.2 Informal Dispute Resolution.



     The Parties may, by mutual agreement, attempt to resolve their dispute informally in the
following manner:



     (a) Either Party may submit the dispute to the Executive Committee, which will meet as often
as the Parties reasonably deem necessary to gather and analyze any information relevant to the
resolution of the dispute. The Executive Committee will negotiate in good faith in an effort to
resolve the dispute.



     (b) During the course of negotiations, all reasonable requests made by one Party to the other
for non-privileged information, reasonably related to the dispute, will be honored in order that
each of the Parties may be fully advised of the other’s position.



     (c) The specific format for the discussions will be determined at the discretion of the
Executive Committee, but may include the preparation of agreed upon statements of fact or written
statements of position.



     (d) Proposals and information exchanged during the informal proceedings described in this
Article between the Parties will be privileged, confidential and without prejudice to a Party’s
legal position in any formal proceedings. All such proposals and information, as well as any
conduct during such proceedings, will be considered settlement discussions and proposals, and will
be inadmissible in any subsequent proceedings.



     (e) In the event of a dispute that cannot be resolved by business negotiations set forth
above, each Party hereby agrees that before initiating any litigation, the Parties shall first
attempt to resolve their dispute through the means of mediation using a qualified and experienced
third-party mediator in a location to be mutually determined by the Parties, or if the Parties
cannot agree, then in West Palm Beach, Florida. The costs of such mediation shall be equally
divided between the Parties. Such mediation shall be conducted by each Party designating a duly
authorized officer or other representative to represent the Party, with authority to bind the
Party, and that the Parties then meet with the mediator in good faith. In the course of mediation,
the Parties agree to exchange informally such information as is reasonably necessary and relevant
to the issues being mediated. If such mediation is unsuccessful, then either Party shall have the
right to initiate litigation in the appropriate court as provided herein. In such event, no part
of the mediation, including the statements made by the Parties or the mediator shall be admissible
against either party in the litigation.



     In the event a Party seeks injunctive relief, specific performance or in the event of an
approaching deadline prescribed by any applicable statute of limitation, then there shall be no
requirement that such Party utilize the mediation process referred to herein.



19.3 Applicable Law, Waiver of Jury Trial.




     All questions concerning the validity, interpretation and performance of this Agreement will
be governed by and decided in accordance with the laws of the State of Florida without giving
effect to any choice-of-law provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any other jurisdiction.



     IN ANY ACTION BROUGHT BY EITHER PARTY AGAINST THE OTHER, EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES THE RIGHT TO REQUEST A JURY TRIAL, TO THE FULLEST EXTENT PERMITTED BY LAW, AND
ANY SUCH LITIGATION SHALL BE TRIED TO THE JUDGE SITTING AS THE FINDER OF FACT AS WELL AS THE JUDGE
OF THE APPLICABLE LAW.



-27-









 





19.4 Jurisdiction and Venue.




     Any litigation initiated by either party involving this Agreement shall be pursued in the
United States courts sitting in the Southern District of Florida, which is the exclusive
jurisdiction and venue of any action brought hereunder, unless the amount in controversy does not
exceed the jurisdictional limit for federal court, in which case the action may be brought in the
courts of the State of Florida in West Palm Beach, Florida.



19.5 Charges and Costs.




     In any legal action, the prevailing Party will be entitled to recover, in addition to its
damages (subject to limitations stated elsewhere in this Agreement), its reasonable attorneys’
fees, expert witness fees, and other ordinary and necessary costs of litigation, as determined by
the court. Such costs include, without limitation, costs of any legal proceedings brought to
enforce a judgment or decree.



19.6 Equitable Remedies.




     The Parties agree that in the event of any breach or threatened breach of any provision of
this Agreement concerning (i) Confidential Information, (ii) intellectual property rights or (iii)
other matters for which equitable rights are expressly provided in this Agreement, money damages
may be an inadequate remedy. Accordingly, either Party may seek a preliminary or permanent,
mandatory or prohibitory, injunction or such other order of a court of competent jurisdiction.



20. MISCELLANEOUS




20.1 Interpretation.




     (a) All Schedules are hereby incorporated in this Agreement by reference. In the event of any
conflict or inconsistency between this Agreement and the Schedules, such conflict or inconsistency
will be resolved by giving precedence first to this Agreement and second to the Schedules.



     (b) The division of this Agreement into Articles, Sections, subsections, Attachments and
Schedules, the division of Schedules or Attachments of this Agreement into Sections and
subsections, and the insertion of headings in this Agreement are for convenience of reference only
and will not affect its constructions or interpretation.



20.2 Binding Nature and Assignment.




     This Agreement will be binding on the Parties and their respective successors and permitted
assigns. Notwithstanding the above, neither Party may assign this Agreement, the Services, any
rights or obligations hereunder, without the other Party’s prior written consent; provided,
however, that either Party may make such an assignment, to an Affiliate or another entity or
business unit of such Party or pursuant to an internal reorganization of such Party (including an
Affiliate, business unit or entity that was receiving or entitled to receive the Services under
this Agreement) upon written notice to the other Party, provided, however, that with respect to
any assignment by ACS, any proposed assignee must be financially secure and an entity with the
necessary resources to provide the Services. Any assignment in contravention of this subsection
will be void. Any consent by a Party to any assignment of this Agreement will not constitute its
consent to further assignments.



-28-









 





20.3 Processor’s Agreement.




20.4 On or before the Service Commencement Date, ACS and Customer agree to enter into a processor’s
agreement with Dun & Bradstreet, Inc. (“D&B”) pursuant to which the parties will agree to maintain
the confidentiality and other restrictions with respect to that certain copyrighted database of D&B
more particularly described in that certain Master License Agreement between Customer and D&B dated
September 30, 2004. Amendment and Waiver.



     No supplement, modification, amendment or waiver of this Agreement will be binding unless
executed in writing by the Party against whom enforcement of such supplement, modification,
amendment or waiver is sought. No waiver of any of the provisions of this Agreement will
constitute a waiver of any other provision (whether or not similar) nor will such waiver constitute
a continuing waiver unless otherwise expressly provided.



20.5 Further Assurances; Consents and Approvals.




     Each Party will provide such further documents or instruments required by the other Party as
may be reasonably necessary or desirable to give effect to this Agreement and to carry out its
provisions. Whenever this Agreement requires or contemplates any action, consent or approval, such
Party will act reasonably and in good faith and (unless the Agreement expressly allows exercise of
a Party’s sole discretion) will not unreasonably withhold or delay such action, consent or
approval.



20.6 Publicity.




     ACS may not include Customer’s name on a list of ACS clients that ACS discloses to third
parties without Customer’s prior written consent. In addition, unless the other Party gives prior
written consent, neither Party will issue any public statement or announcement relating to this
Agreement, nor display or use, in advertising or otherwise, any of the other Party’s trade names,
logos, trademarks, service marks or other indicia of origin. For purposes of this Section
20.5, prior written consent must be given by an officer of the relevant Party.



20.7 Severability.




     If any provision of this Agreement will be determined by any court of competent jurisdiction
to be invalid or unenforceable, as to such jurisdiction, such invalidity or unenforceability will
not affect the remainder of this Agreement, which will be construed as if such invalid or
unenforceable provision had never been a part of this Agreement but in a manner so as to carry out
as nearly as possible the Parties’ original intent.



20.8 Entire Agreement.




     This Agreement, including the Schedules, constitutes the entire agreement between the Parties
pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the Parties pertaining to
the subject matter hereof. There are no warranties, representations or other agreements between
the Parties in connection with the subject matter hereof except as specifically set forth in this
Agreement.



20.9 Notices.




     Any notice, demand or other communication required or permitted to be given under this
Agreement will be in writing and will be deemed delivered to a Party (i) when delivered by hand or
courier, (ii) one business day after being sent by reputable overnight courier , or (iii) six (6)
days after the date of mailing if mailed by United States certified mail, return receipt requested,
postage prepaid, in each case to the address of such Party set forth below (or at such other
address as the Party may from time to specify by notice delivered in the foregoing manner):



     If to ACS, to:




		
	                      	ACS Commercial Solutions, Inc.

8911 South Sandy Parkway

Sandy, Utah 84070

Attention: President for Commercial Solutions Group





-29-









 








     With a Copy to:




		
	                      	ACS Commercial Solutions, Inc.

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

Dallas, Texas 75204

Attn: Thomas Hall

Group Counsel for Commercial Solutions

Telephone: (214) 841-6175

Telex or facsimile: (214) 584-5525





     If to Customer, to:




		
	                      	Office Depot, Inc.

2200 Old Germantown Road

Delray Beach, FL 33445

Attn.: George Bryan, VP Financial Services





     With a Copy to:




		
	                      	Office Depot, Inc.

2200 Old Germantown Road

Delray Beach, FL 33445

Attn.: Office of the General Counsel





20.10 Survival.




     Any provision of this Agreement which contemplates performance or observance subsequent to any
termination or expiration of this Agreement, will survive termination of this Agreement.



20.11 Independent Contractors.




     ACS will perform its obligations under this Agreement as an independent contractor of
Customer. Nothing herein will be deemed to constitute ACS and Customer as partners, joint
venturers, or principal and agent. Neither Party has the authority to represent the other Party as
to any matters, except as expressly authorized in this Agreement.



20.12 Third Party Beneficiaries.




     Nothing in this Agreement, express or implied, is intended to confer on rights, benefits,
remedies, obligations or liabilities on any person (including, without limitation, any employees or
Affiliates of the Parties) other than the Parties or their respective successors or permitted
assigns.



20.13 Counterparts.




     This Agreement may be executed in one or more counterparts, each of which will be deemed an
original but all of which taken together will constitute one and the same instrument.



     The Parties have executed this Agreement by the signatures of their respective authorized
representatives on the date set forth below.



-30-









 





	 	 	 
	ACS COMMERCIAL SOLUTIONS, INC.

	 	OFFICE DEPOT, INC.
	 
	 	 
	By:

	 	By: /s/ GEORGE BRYAN
	 

	 	 
	Print Name:

	 	Print Name: George Bryan
	 

	 	 
	Title:

	 	Title: V.P., Financial Services
	 

	 	 
	Date:

	 	Date: 11/30/04
	 

	 	 






-31-










 






LIST OF SCHEDULES





		
	SCHEDULE A 	Statement of Work

     w Attachment A       Pricing

     w Attachment B      SLA

     w Attachment C      HR Provision

     w Attachment D      Disaster Recovery Plan

     w Attachment E      Governance

     w Attachment F      Transition Plan

     w Attachment G      OD Policy & Procedures

               o Office Depot

               o Viking

               o Tech Depot




		
	SCHEDULE B 	ACS Competitors




		
	SCHEDULE C 	Mutual Nondisclosure Agreement




		
	SCHEDULE D 	Sarbanes Oxley and SAS70




		
	SCHEDULE E 	Office Depot ACS Key Personnel




		
	SCHEDULE F 	Bill of Sale and Assignment





A-1









 








SCHEDULE A




STATEMENT OF WORK





A-2









 








SCHEDULE B




ACS COMPETITORS





A-3









 








SCHEDULE C




MUTUAL NONDISCLOSURE AGREEMENT





A-4









 








SCHEDULE D




SARBANES OXLEY AND SAS70





A-5









 








SCHEDULE E




OFFICE DEPOT ACS KEY PERSONNEL




A-6









 








SCHEDULE F




BILL OF SALE AND ASSIGNMENT




This BILL OF SALE AND ASSIGNMENT (“Bill of Sale and Assignment”) is made and entered into as of
this 30th day of November 2004 by ACS Commercial Solutions, Inc. (“ACS”) and Office
Depot, Inc. (“Customer”) with respect to the conveyance of certain assets by Customer to ACS
pursuant to that certain Master Agreement for Business Process Outsourcing Services dated as of
November 30, 2004 by and between ACS and Customer (“Agreement”). This Bill of Sale and Assignment
is executed and delivered in connection with the Agreement and all terms not defined herein shall
have the same meanings as in the Agreement.




	 	1.  	Sale and Transfer of Assets and Contract Rights. For good and valuable
consideration the receipt and adequacy and legal sufficiency of which are hereby
acknowledged, Customer hereby sells, transfers, assigns, conveys, grants and delivers
to ACS effective as of the Service Commencement Date all of Customer’s right, title,
and interest in and to those assets set forth on Exhibit A hereto (the
“Customer Transferred Assets”).
	 
	 	2.  	Further Actions. If subsequent to the date hereof any property that is
part of the Customer Transferred Assets comes into the possession of Customer, Customer
shall deliver the same to ACS at a location specified by ACS.
	 
	 	3.  	No Warranties. THE PARTIES AGREE AND ACKNOWLEDGE THAT CUSTOMER
TRANSFERS TITLE AND INTERESTS TO THE CUSTOMER TRANSFERRED ASSETS ON AN “AS-IS,
WHERE-IS” BASIS WITH NO WARRANTY OF ANY KIND EXPRESS OR IMPLIED INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT THAT CUSTOMER WARRANTS THAT
IT HAS GOOD AND MARKETABLE TITLE TO THE CUSTOMER TRANSFERRED ASSETS AND SUCH TITLE IS
FREE AND CLEAR OF ANY LIENS OR ENCUMBRANCES.
	 
	 	4.  	Further Assurances. Customer covenants and agrees at the request of
ACS to execute and deliver (or cause to be executed and delivered) further instruments
of transfer and assignment and take such other action as ACS may reasonably request to
more effectively transfer and assign to and vest in ACS each of the Customer
Transferred Assets
	 
	 	5.  	Terms of the Agreement; Conflict. The terms of the Agreement are
incorporated herein by this reference. In the event of any conflict or inconsistency
between the terms of the Agreement and the terms hereof, the terms of the Agreement
shall govern.
	 
	 	6.  	Notices. All notices or other communications or deliveries provided
for under this Bill of Sale and Assignment shall be given as provided in the Agreement.
	 
	 	7.  	Binding Effect; Assignment. This Agreement will be binding on the
Parties and their respective successors and permitted assigns. Notwithstanding the
above, neither Party may assign this Agreement or any rights or obligations hereunder,
without the other Party’s prior written consent; provided, however, that either Party
may make such an assignment, to an Affiliate or another entity or business unit of such
Party or pursuant to a reorganization of such Party (including an Affiliate, business
unit or entity that was receiving or entitled to receive the Services under this
Agreement) upon written notice to the other Party, provided, however, that with
respect to any assignment by ACS, any proposed assignee must be financially secure and
an entity with the necessary resources to provide the Services. Any assignment in
contravention of this subsection will be void. Any consent by a Party to any
assignment of this Agreement will not constitute its consent to further assignments.
	 
	 	8.  	Governing Law. This Bill of Sale and Assignment will be governed by
and construed in accordance with the substantive laws of the State of Florida, without
giving effect to any choice of law rules that




A-7









 












	 	   	may require the application of the laws of another jurisdiction. The Parties consent to
venue in the United States courts sitting in the Southern District of Florida, which is
the exclusive jurisdiction and venue of any action brought hereunder, unless the amount
in controversy does not exceed the jurisdictional limit for federal court, in which case
the action may be brought in the courts of the State of Florida in West Palm Beach,
Florida.
	 
	 	9.  	Counterparts. This Bill of Sale and Assignment may be executed in two
or more counterparts (including by means of telecopied signature pages) each of which
shall be deemed to be an original, but all of which together shall constitute one and
the same agreement.





IN WITNESS WHEREOF, the Parties have duly executed and delivered this Bill of Sale and
Assignment as of the Effective Date.



ACS COMMERCIAL SOLUTIONS, INC.





			
	By: 	





			
	Print Name 	





			
	Title: 	





			
	Date: 	






OFFICE DEPOT, INC.





			
	By: 	GEORGE
BRYAN





			
	Print Name 	George Bryan





			
	Title: 	V.P. Financial Services





			
	Date: 	11/30/04






A-8









 








EXHIBIT A (TO SCHEDULE F)




CUSTOMER TRANSFERRED ASSETS





A-9









 













CREDIT & COLLECTIONS




AND




SALES TAX SUPPORT




STATEMENT OF WORK









 




 




 




 




Office Depot and ACS Proprietary and Confidential




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	1.0	 	 	INTRODUCTION AND DEFINITIONS
	 	 	3	 
	 
	 	2.0	 	 	SYSTEMS AND TOOLS DEFINITIONS
	 	 	4	 
	 
	 	3.0	 	 	ACS RESPONSIBILITIES: CREDIT AND COLLECTIONS
	 	 	5	 
	 
	 	 	 	 	3.1        NEW ACCOUNT SETUP AND APPROVAL
	 	 	6	 
	 
	 	 	 	 	3.2        ACCOUNT MAINTENANCE
	 	 	6	 
	 
	 	 	 	 	3.3        CREDIT APPROVAL
	 	 	6	 
	 
	 	 	 	 	3.4        RISK MANAGEMENT
	 	 	7	 
	 
	 	 	 	 	3.5        HOLD/RELEASE
	 	 	7	 
	 
	 	 	 	 	3.6        COLLECTIONS
	 	 	7	 
	 
	 	 	 	 	3.6.1      CREDIT CARD PAYMENTS
	 	 	8	 
	 
	 	 	 	 	3.7        ACCOUNT WRITE-OFFS
	 	 	8	 
	 
	 	 	 	 	3.7.1      AGENCY PLACEMENT
	 	 	8	 
	 
	 	 	 	 	3.7.2      BANKRUPTCY ADMINISTRATION
	 	 	8	 
	 
	 	4.0	 	 	SALES TAX SUPPORT OVERVIEW
	 	 	9	 
	 
	 	 	 	 	4.1        EXEMPTION CERTIFICATE VALIDATION
	 	 	9	 
	 
	 	 	 	 	4.2        EXEMPTION CERTIFICATE DENIAL
	 	 	9	 
	 
	 	 	 	 	4.3        ACCOUNTS RECEIVABLE TAX WRITE-OFFS — MARS
	 	 	10	 
	 
	 	 	 	 	4.4        CASH/CHECK REFUNDS
	 	 	10	 
	 
	 	 	 	 	4.5        COMMERCIAL/ACS CREDIT CARD
	 	 	10	 
	 
	 	 	 	 	4.6        AB CONTRACT CUSTOMER
	 	 	10	 
	 
	 	 	 	 	4.7        AMAZON CREDIT CARD
	 	 	11	 
	 
	 	 	 	 	4.8        MONEY CARDS
	 	 	11	 
	 
	 	 	 	 	4.9        TECH DEPOT
	 	 	11	 
	 
	 	 	 	 	4.10      ACS EXEMPTION APPLICATIONS
	 	 	12	 
	 
	 	 	 	 	4.11      CASH APPLICATIONS DATABASE
	 	 	12	 
	 
	 	 	 	 	4.12      DEBIT CARD
	 	 	12	 
	 
	 	 	 	 	4.13      SYSTEMS AND TOOLS
	 	 	13	 
	 
	 	 	 	 	4.14      AUDIT SUPPORT
	 	 	13	 
	 
	 	5.0	 	 	COMMUNICATIONS
	 	 	13	 






-2-









 






1.0 INTRODUCTION/DEFINITIONS




1.1 This Statement of Work (SOW) will confirm the mutual understanding and agreement of ACS
Commercial Solutions (“ACS”) and Office Depot, Inc. (“OD”) as to the terms and conditions pursuant
to which ACS, itself and through its direct and indirect wholly-owned subsidiaries, will perform
the Credit and Collections Services (the “C&C Services”) and Sales Tax Support (the, “STS
Services”) described in this SOW for OD. All references to ACS in this SOW will be deemed to
include all such subsidiaries, and ACS and OD may be referred to in this SOW as a “Party” and
together as the “Parties”.



1.2 The terms and conditions of this SOW are as follows: (i) this SOW is entered into by the
Parties under the provisions of that certain Master Services Agreement for Business Process
Outsourcing Services, dated as of November 30, 2004 , between ACS and OD (the “Agreement”), and,
except as otherwise provided in this SOW, all applicable provisions of the Agreement are
incorporated into this SOW by this reference; (ii) the term of this SOW will commence on December
26, 2004 and, unless earlier terminated as provided in the Agreement or this SOW, will expire on
December 25, 2011 provided, however, that the term of this SOW may be extended as provided in the
Agreement; (iii) during the term of this SOW, ACS will provide to OD the Services described in this
SOW; (iv) in connection with the Services provided by ACS under this SOW, ACS will provide to OD
the support and resources described in this SOW; (v) for the Services provided by ACS under this
SOW, OD will pay to ACS the amounts specified in the attached Attachment A to this SOW; (vi) ACS
will provide the Services in accordance with the Policies and Procedures and the Service Levels
currently established at the Wichita, Kansas location for Services described in this SOW; and
(vii) additional terms and conditions related to the Services are set forth in the following
Attachments which address various details that relate to the scope of Services and are hereby
incorporated by reference. Within (180) days after the Effective Date, ACS and OD will jointly
develop detailed project plans that describe the Transition Plan and Migration Schedule to/from ACS
facilities. The Attachment F Transition Plan reflects a view of the transition activities that must
occur. Office Depot and ACS agree that in the event that the ACS technical infrastructure build
cannot be completed by December 25, 2004, Office Depot agrees to maintain the current
infrastructure for up to thirty one additional days (through January 25, 2005) to ensure
uninterrupted service during the transition period.



On or before April 30th, 2005, ACS will deliver to Office Depot a written proposal (the
“ACS Proposal”) with respect to designing an AR Application Tool. Within thirty (30) days of
receipt of the ACS Proposal, Office Depot may elect to implement the ACS Proposal. The
implementation of any such AR Application Tool is subject to Office Depot and ACS reaching mutual
written agreement with respect to the implementation and on-going costs and expenses of such AR
Application Tool. The ACS Proposal, when mutually agreed to by ACS and OD, will be set forth in a
Statement of Work governed by the terms and conditions of the Agreement, including without
limitation the allocation of Intellectual Property Rights.




	 	•  	Attachment A: Pricing
	 
	 	•  	Attachment B: Service Level Agreement
	 
	 	•  	Attachment C: Human Resource Provisions
	 
	 	•  	Attachment D: Disaster Recovery
	 
	 	•  	Attachment E: Governance
	 
	 	•  	Attachment F: Transition Plan
	 
	 	•  	Attachment G. Office Depot’s Polices and Procedures Manual




-3-









 











1.3 Definitions. For purposes of this SOW, the following terms shall have the meanings indicated
therein:



     “Effective Date” means the date on which the Agreement is executed.



     “In-Scope Site” means the OD site located in Wichita, Kansas.



     “Migration Plan” means the activities associated with the migration of employees from the ACS
site located in Wichita, Kansas to another ACS site, as described in the migration plan to be
prepared by ACS and delivered to OD.



     “Service Commencement Date(s)” means the date(s) that ACS commences providing Services at the
In-Scope Site.



     “Steady State” means that all C&C and STS Services have been fully transitioned to ACS to the
extent contemplated by this SOW.



     “Transition Period(s)” means the time beginning on the Effective Date and continuing until
Steady State during which (i) preparation and transition activities and milestones occur for the
full and complete transition of C&C and STS Services from OD to ACS in accordance with the
Transition Plan.



     “Transition Plan” means the activities that the Parties will engage in, and the milestones
that will be delivered and/or occur as set forth in Schedule A, Attachment F (Transition
Plan). “Transition Schedule” means the date(s) on which the activities and milestones set forth
in the Transition Plan are scheduled to occur.



2.0 SYSTEMS AND TOOLS — DEFINED




JMIL

Office Depot GUI/Windows based order entry system of AOPS



MBS

Office Depot Mainframe billing system



BSD

Office Depot’s Business Services Division



BSD Finance

Office Depot web based billing interface of customer information



BSG

Office Depot’s Business Services Group



Credit Settlement System

Office Depot’s credit card settlement system



VK Finance

Viking web based billing interface of customer information



AB

Account Billing for Office Depot’s BSD Credit porfolio



Viking Credit Portfolio

Accounts receivables stemming from Viking contract sales



-4-









 








Tech Depot Credit Portfolio

Accounts receivables stemming from Tech Depot contract sales



TDM

Total Document Management Workflow system that ACS provides for Office Depot’s Accounts Payable and
Sales Tax Support processes



VERTEX Rate Locator

Third party software utilized to research sales/use tax rates



VERTAX Sales Tax Reference

Third party software utilized to perform sales tax research



RIA

Third party software (internet based) used to perform more thorough tax research



AOPS

Office Depot system for new customer account setup for the BSD Portfolio



VARS

Viking system for new account setup, customer account management, credit and collection, etc. for
the Viking BSD portfolio



MARS

Master Accounts Receivable System utilized for the BSD portfolio



TechDepot

A subsidiary of Office Depot, which utilizes “Great Plains” for credit administration, billing, and
collections



Hardware/software

To support the above mentioned portfolios



GetPaid

Collections workflow software used in the BSD Credit Portfolio



Avolent

Web based tool for customer and employees to view accounts receivable information. Also know as
single “BSD Finance” and “VK Finance”



D&B Website

Utilized to research new customers and evaluate their credit worthiness



3.0 CREDIT & COLLECTIONS OVERVIEW




The Credit & Collections solution for Office Depot assumes that ACS shall perform the current
Credit & Collections (“C&C”) responsibilities of the Office Depot’s C&C department located in
Wichita, Kansas, as defined in this SOW. After stabilization of the C&C processes, ACS will begin
to implement the Migration Plan as it relates to the specific processes. In doing so, ACS shall
continue the current service levels. Within six (6) months of the Service Commencement Date, ACS
will begin to migrate the work to an ACS facility and begin defining and implementing mutually
agreeable process improvements. Office Depot will not unreasonably withhold approval of process
changes and will provide its approval within five (5) business days of receiving ACS’ proposed
written changes. The main Credit & Collections functions consist of the following: the BSD, Viking
and TechDepot portfolios currently being processed in the Wichita, Kansas facility are “in-scope”.
These functions include: New Account Set-up and Approval, Account Maintenance, Credit Approval,
Risk Management, Hold/Release, Collections, Credit



-5-









 








Card Payments, Account Write-Offs, Agency Placement, Bankruptcy Administration. The Wichita,
Kansas location operation hours will remain the same as of the date this document is signed.
Within 90 days after the Service Commencement Date, Office Depot and ACS will mutually develop a
responsibility matrix that identifies which risk management deliverables are the responsibility of
Office Depot and ACS; provided, however that the Parties’ responsibilities will be consistent with
the responsibilities of the Parties as set forth in this SOW.



ACS RESPONSIBILITIES: CREDIT & COLLECTIONS




3.1 NEW ACCOUNT SET-UP AND APPROVAL





The Credit Approval process is based on the Office Depot Polices & Procedures Manual see
Attachment G.




Office Depot will continue to exclusively negotiate service contracts for credit
information from designated vendors (e.g., Dun & Bradstreet, Experian, and Equifax). While
ACS will administer credit granting processes using proscribed rules set forth in Attachment
G, and Office Depot will continue to pay or those services. Office Depot will retain final
approval on all decisions to grant, or not grant, credit to customers. Office Depot will
respond to credit granting inquiries from ACS within one (1) business day.




ACS’ responsibilities are to:



               (a) Assume responsibility for the Credit Approval process utilizing and following
the Office Depot Policy & Procedure Manual (Attachment G.).



3.2 ACCOUNT MAINTENANCE





The Credit and Collections group administers account maintenance for the three (3)
portfolios (BSD, Viking and TechDepot). The group oversees this “maintenance” to ensure
procedures are followed for customer changes, thereby reducing the risk to Office Depot.




ACS’ responsibilities are to:



               (b) Assume responsibility for the Credit and Collections’ group account maintenance
for the three (3) portfolios (BSD, Viking and TechDepot) utilizing and following the Office Depot
Policy & Procedure Manual (Attachment G.).



3.3 CREDIT APPROVAL





The Credit approval process is based upon the Office Depot Policy & Procedure Manual
(Attachment G.). Office Depot will continue to exclusively negotiate service contracts for
credit information from designated vendors (e.g., Dun & Bradstreet, Experian, and Equifax).
Office Depot will continue to maintain the costs for those services. While ACS will
administer credit granting processes using proscribed rules in Attachment G, Office Depot
will retain final approval on all decisions to grant or not grant, credit to customers.

Office Depot will respond to credit granting inquires from ACS within one (1) business day.




ACS’ responsibilities are to:



               (c) administer credit granting processes using proscribed rules in the Office Depot
Policy & Procedures Manual (Attachment G).



-6-









 





3.4 RISK MANAGEMENT





The Risk Management process currently performed in the Wichita, Kansas facility is addressed
in the Office Depot’s Policy & Procedures Manual (Attachment G) for all three portfolios.
While ACS will administer risk management processes using proscribed rules in Attachment G,
Office Depot will retain final approval on all decisions to grant, or not grant, credit to
customers. Office Depot will respond to credit granting inquiries from ACS within one (1)
business day.




ACS’ responsibilities are to:



               (a) administer risk management processes using proscribed rules in the Office Depot
Policy & Procedure Manual (Attachment G.).



3.5 HOLD/RELEASE





The hold/release functions include reviewing the customers current order, credit limits,
past dues (or delinquencies), frequency of orders, customers requiring purchase orders
(PO’s) and collectors reasons for placing an account on “hold”. “Releases” are based on
several automated and decision points defined in Attachment G. GetPaid, AOPS, and MARS are
used concurrently for hold/release decisions for BSD. 80% of the Viking hold/release issues
are processed automatically based on programming in VARS. The remaining 20% hold/release
issues are performed at the point of sale. GreatPlains is used for Hold/release issues
processed for Tech Depot.




While ACS will administer hold/release processing used proscribed rules in Attachment G,
Office Depot will continue to retain final approval on decisions to release, or not release,
orders to customers for credit related reasons. Office Depot will respond to credit granting
inquiries from ACS within one (1) business day.




ACS’ responsibilities are to:



               (a) Continued use of GetPaid, AOPS, and MARS for the BSD portfolio and the steps
referenced in the Office Depot’s Policy & Procedures Manual found in Attachment G.



3.6 COLLECTIONS





Collections are varied based on portfolio and customer relations. Collections include:
friendly fax near the due date, first calls, follow-up calls, friendly reminders, serious
fax, obtain promises or commitments to pay both in amount and by date, letters to the
account manager, final demand letter, third party participation including assignment of an
account to a third party. GetPaid software is used to manage the collectors’ duties and
prompts them for collection activities for the BSD portfolio. Any daily payment activity is
not updated in GetPaid until the nightly update routine between MARS and GetPaid, therefore
the collectors must use both systems before collection activities begin for BSD.
Collections for Viking are generally the same as for BSD with the exception of the software
and hardware used to support the Viking portfolio as well as exceptions that prompt
collections (ex., when to begin collections, days past due, etc.)




ACS’ responsibilities are to:




	 	a)  	Continue to use GetPaid, AOPS and MARS for the BSD portfolio
and the steps referenced in the Office Depot Policy & Procedures Manual
(Attachment G).
	 
	 	b)  	Continued use of VARS and JMIL utilizing the steps outlined
referenced in the Office Depot Policy and Procedures Manual (Attachment G);




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	 	c)  	TechDepot Utilizing the steps outlined in the Office Depot Policy and Procedures
Manual (Attachment G).





3.6.1 CREDIT CARD PAYMENTS





Credit card payments are processed by collectors for customer payments on delinquent
accounts. The payment is processed in MARS or VARS, and the payment processing is verified
by Office Depot’s Financial Control and Office Depot’s Customer Programs to ensure
collections are processed for all authorized credit card transactions.




ACS’ responsibilities are to:




	 	a)  	Process the credit card payments referenced in and utilizing
the policies in the Office Depot Policy & Procedure Manual (Attachment G).





3.7 ACCOUNT WRITE-OFFS





Individual collectors determine when to write accounts off and proposed write offs are sent
to the collections lead for approval for each portfolio. Write offs are currently reviewed
and authorized by the Office Depot Director of Credit. A detailed narrative is provided in
the Office Depot Policy & Procedures Manual referenced in Attachment G. While ACS will
administer write-off processing using proscribed rules in Attachment G, Office Deport will
retain the authority to approve, or dis-approve, all write-offs. Fees will be paid by Office
Depot.




ACS’ responsibilities include:




	 	a)  	Continued use of the above mentioned process and the steps referenced in the
Office Depot Polices & Procedures Manual in Attachment G.





3.7.1 AGENCY PLACEMENT





Once the account has been “written-off” a Third Party Collection Agency is engaged to
collect bad debt accounts for all three portfolios. A detailed narrative is provided in the
Office Depot Polices & Procedures Manual (Attachment G). Office Depot will continue to
negotiate all contracts with third-party agencies and continue to pay for those services.




ACS’ responsibilities are to:




	 	a)  	Continued use of the above mentioned process following the
steps referenced in the Office Depot Policies & Procedures Manual (Attachment
G).





3.7.2 BANKRUPTCY ADMINISTRATION





ACS’ responsibilities are to:




	 	a)  	Continue to use process and steps referenced in the Office Depot Policies &
Procedures Manual (Attachment G).




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4.0 SALES TAX SUPPORT OVERVIEW




The Sales Tax Support solution for Office Depot assumes that ACS will perform the current Sales Tax
Support (“STS”) responsibilities of Office Depot’s Sales Tax Support department located in Wichita,
Kansas, as defined in this SOW. In doing so, ACS shall continue the current service levels. In
addition, ACS will migrate the work to an ACS facility and begin defining and implementing mutually
agreeable process improvements. Office Depot will not unreasonably withhold approval of process
changes and will provide their approval within five (5) business days of receiving ACS’ proposed
written changes. In performing the STS functions, ACS shall process customer exemption document
requests, validate exempt status of customers, and process sales tax refund/write-off requests for
all Office Depot entities and sales channels.



Additionally, ACS shall support additional requests from the OD Sales and Use tax group located in
Delray Beach, Florida. These functions include sales tax audit support, as well as processing of
mass exemption certificate updates.



The Wichita, Kansas location operation hours will remain the same. Except as agreed otherwise in
writing by the parties, ACS will provide the STS services in accordance with current Office Depot
STS service levels. Within 90 days after the Service Commencement Date, Office Depot and ACS will
mutually develop a responsibility matrix that identifies which deliverables are the responsibility
of Office Depot and ACS.



ACS RESPONSIBILITIES: SALES TAX SUPPORT



4.1 EXEMPTION CERTIFICATE VALIDATION





ACS will assume the Sales Tax Support group’s responsibilities of validating the exempt
status of customers based on exemption documentation forwarded via mail, fax, or through the
TDM work flow process. If documentation is validated, ACS will set up the exempt customers
in the AOPS Customer Information System as tax-exempt in the applicable state as either
Statutory (S) or Resale ® and either full or partial exemption. ACS shall establish new
customer accounts or update as necessary during exemption certificate processing. ACS
shall then prepare exemption certificates for imaging. If the customer is a retail (as
opposed to a Contract) customer, ACS will request a tax exempt card(s) to be sent to the
customer. Currently AOPS sends an update to POS overnight to activate the customer’s exempt
status at the register. There are slight differences between Office Depot, Viking and Tech
Depot processing.




ACS’s responsibilities are to:




Use the same procedures currently used by STS to validate and link the customer’s exemption
documentation to the AOPS Customer Information System, thus activating the customer’s
tax-exempt status within the AOPS and POS systems.



4.2 EXEMPTION CERTIFICATE DENIAL





ACS STS personnel will deny tax-exempt status to customers whose exemption documentation is
not complete, expired, or not valid. The Customer Information System in AOPS will be
updated to indicate that the customer is not tax exempt and the file will be noted that
either additional information has been requested, a new certificate has been requested, or
that the customer does not qualify for exempt status. New customer accounts are established
or updated as necessary during exemption certificate processing.




ACS’s responsibilities are to:




Follow the same exemption denial criteria as established by research materials made
available to all STS staff.



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4.3 ACCOUNTS RECEIVABLE TAX WRITE-OFFS — MARS





The Office Depot sales tax system will charge tax to BSG customers until and unless the
Customer Information System in AOPS reflects that the customer is tax-exempt in the state of
purchase, or that certain purchases made by the customer are tax-exempt. Trade Credit
representatives will write-off the sales tax charged to the customer through the MARS — AR
system using the applicable state code. Office Depot STS will review requested sales tax
write-offs and either approve or deny them based on the reason for write-off and whether the
customer is exempt or not. Notes are entered into MARS for the reason a write-off was
denied. Tax write-off codes are 122-172. There is a hierarchy for write-off approvals.




ACS’s responsibilities are to:




Continue to approve or deny sales tax write-offs in the MARS system.



4.4 CASH/CHECK REFUNDS





The Office Depot sales tax system will charge tax to commercial and retail customers until
valid tax exemption documentation is received and entered in AOPS. Once exemption
documentation has been received and validated, sales tax will be refunded via check to a
customer who paid for merchandise by cash or check. Prior to issuing a tax refund, Office
Depot STS will review purchase history to determine whether there have been any returns,
whether the merchandise qualifies for the exemption and Office Depot STS will determine
whether the refund has previously been processed. Checks are requested through TDM and
forwarded to customers by Office Depot Accounts Payable. Occasionally checks will be
returned for various reasons and Office Depot STS will process these returned checks
accordingly.




ACS’s responsibilities are to:




Continue issuing sales tax refunds via check to cash customers who have provided valid tax
exemption documentation and sales receipts/invoices indicating that tax was paid.



4.5 COMMERCIAL/ACS CREDIT CARD





The Office Depot sales tax system will charge tax to commercial and retail customers until
valid tax exemption documentation is received and entered in AOPS. Once exemption
documentation has been received and validated, sales tax will be refunded to a customer who
paid for merchandise with a commercial or ACS credit card. Prior to issuing a tax refund,
Office Depot STS will review purchase history to determine whether there have been any
returns, whether the merchandise qualifies for the exemption and Office Depot STS will
determine whether the refund has previously been processed. Refunds are requested through
Credit Settlement System. If for some reason tax was not charged or there was a tax rate
error, Office Depot STS will actually charge the customer’s credit card the applicable
additional sales tax. Data entry errors are returned and researched as necessary. There
are slight differences between Office Depot and Viking processing.




ACS’s responsibilities are to:




Continue processing sales tax refunds using the Credit Settlement System to customers that
have provided valid tax exemption documentation and sales receipts/invoices indicating that
tax was paid.



4.6 AB CONTRACT CUSTOMER





The Office Depot sales tax system will charge tax to contract customers until valid tax
exemption documentation is received and entered in AOPS. Once exemption documentation has
been received and validated, sales tax will be refunded or written off, as applicable, for a
contract customer who charged merchandise to their open account. Prior to processing a tax
refund, Office Depot STS will review



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purchase history to determine whether there have been any returns, whether the merchandise
qualifies for the exemption and Office Depot STS will determine whether the refund has
previously been processed. Refunds are requested through an Access spreadsheet and
submitted to Accounts Receivable for processing as either a refund or a write-off if tax was
short-paid. Data entry errors are returned and researched as necessary. If for some reason
tax was not charged or there was a tax rate error, Office Depot STS will actually charge the
customer the applicable additional sales tax using a different spreadsheet. There are
slight differences between Office Depot and Viking processing.




ACS’s responsibilities are to:




Continue processing sales tax refunds for AB customer using the current Access spreadsheet
process for customers that have provided valid tax exemption documentation and sales
receipts/invoices indicating that tax was paid in error.



4.7 AMAZON CREDIT CARD





Amazon charges sales tax on all purchases of Office Depot merchandise processed through
their website. Amazon will contact Office Depot if their customer requests a sales tax
refund. Office Depot STS will determine whether the customer is exempt from sales tax.
Once exemption documentation has been received and validated, Office Depot STS enters
applicable information on a spreadsheet that is returned to Amazon who will then issue the
sales tax refunds. Prior to processing a tax refund, Office Depot STS will review the order
in question to determine whether the merchandise qualifies for the exemption. Data entry
errors are returned and researched as necessary.




ACS’s responsibilities are to:




Continue processing sales tax refunds for Amazon customers using the current spreadsheet
process for Amazon customers that have provided valid tax exemption documentation and
invoices indicating that tax was paid in error.



4.8 MONEY CARDS





The Office Depot sales tax system will charge tax to customers until valid tax exemption
documentation is received and entered in AOPS. Once exemption documentation has been
received and validated, sales tax will be refunded for a customer who paid for merchandise
using only an Office Depot money card. Prior to processing a tax refund, Office Depot STS
will review purchase history to determine whether there have been any returns, whether the
merchandise qualifies for the exemption. Refunds requests are forwarded via mail to
Accounts Receivable for processing.




ACS’s responsibilities are to:




Continue processing sales tax refunds for Money Card customers using the current process for
customers that have provided valid tax exemption documentation and sales receipts indicating
that tax was paid in error.



4.9 TECH DEPOT





The Tech Depot sales tax system will charge tax to customers until valid tax exemption
documentation is received and entered in the Tech Depot customer master. Once exemption
documentation has been received and validated, sales tax will be refunded a customer who was
incorrectly charged sales tax on merchandise purchased. Prior to requesting a tax refund,
Office Depot STS will review purchase history to determine whether there have been any
returns and whether the merchandise qualifies for the exemption. If a refund is due the
customer the refund information is entered into an Excel spreadsheet that is furnished to
the Tech Depot accounting department for processing.



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ACS’s responsibilities are to:




Continue processing Tech Depot sales tax refunds as noted above.



4.10 ACS EXEMPTION APPLICATIONS





ACS (CITI Group) receives sales tax exemption applications along with credit card
applications. Sales tax exemption applications are forwarded to Office Depot STS who
processes them in the same manner as described above under 4.1 and 4.2. Upon completion
Office Depot STS notifies ACS of the exempt status of each customer in question. Office
Depot STS will also enter the applicable credit card number in AOPS.




ACS’s responsibilities are to:




Continue processing Tech Depot sales tax refunds as noted above.



4.11 CASH APPLICATION DATABASE





Accounts Receivable has developed a database where they track customer exemptions in
process. Exemption certificates they receive are forwarded to Office Depot STS for
processing as noted in 4.1 and 4.2 above. Office Depot STS updates the database with
applicable tax information as exemption certificates are received and again upon completion
of processing.




ACS’s responsibilities are to:




Continue updating the Accounts Receivable database as noted above.



4.12 DEBIT CARD





The Office Depot sales tax system will charge tax to commercial and retail customers until
valid tax exemption documentation is received and entered in AOPS. Once exemption
documentation has been received and validated, sales tax will be refunded to a customer who
paid for merchandise with a debit card. Prior to issuing a tax refund, Office Depot STS
will review purchase history to determine whether there have been any returns, whether the
merchandise qualifies for the exemption and Office Depot STS will determine whether the
refund has previously been processed. Refunds are requested through Credit Settlement
System. If for some reason tax was not charged or there was a tax rate error, Office Depot
STS will actually charge the customer’s debit card the applicable additional sales tax.
Data entry errors are returned and researched as necessary.




ACS’s responsibilities are to:




Continue processing sales tax refunds using the Credit Settlement System to customers that
have provided valid tax exemption documentation and sales receipts/invoices indicating that
tax was paid.



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4.13 SYSTEMS AND TOOLS





See Section 2.0



4.14 AUDIT SUPPORT





The Sales Tax Support group currently assists the Office Depot Sales Tax Audit group by
providing copies of exemption certificates that have been requested by state and local sales
tax auditors.




ACS’s responsibilities are to:




Continue to provide support to supply copies of exemption certificates for Viking and Tech
Depot customers that are on site in Wichita, Kansas. Also, ACS will prepare and image all
such documents currently on site, at Office Depot’s expense, and make these imaged documents
available to the Sales Tax Audit Group in Delray Beach through the TDM system.



5.0 COMMUNICATION




ACS will provide training to any employees providing Services to Office Depot from a call center
located at ACS locations outside of the United States in order to ensure that such employees
effectively communicate to Office Depot and its designees, including minimizing the use of
colloquialisms. To the extent that Office Depot determines in its reasonable discretion, and for
reasons that are not unlawful, that such ACS employees are not effectively communicating to Office
Depot or its designees, Office Depot will specify its concerns in writing and ACS will supplement
the training for such ACS employees to address the concerns specified by Office Depot.




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