Master Agreement For Business Processing Outsourcing Services

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 Custom ...