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Master Service Agreement For Information Technology (IT)

This is an actual contract between Dennys and Affiliated Computer Services.

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MASTER SERVICE AGREEMENT


FOR INFORMATION TECHNOLOGY SERVICES


BETWEEN


ADVANTICA RESTAURANT GROUP, INC.


AND


AFFILIATED COMPUTER SERVICES, INC.


JANUARY 25, 2000


TABLE OF CONTENTS


PAGE
---- BACKGROUND AND OBJECTIVES......................................................1 ARTICLE 1......................................................................2 DEFINITIONS..................................................................2
Section 1.1 Certain Definitions..........................................2
Section 1.2 Other Definitions............................................7 ARTICLE 2......................................................................7
MASTER AGREEMENT............................................................7
Section 2.1 Master Agreement.............................................7
Section 2.2 Master Schedules.............................................7
Section 2.3 Interpretation and Precedence................................7
Section 2.4 No Implied Agreement.........................................8 ARTICLE 3......................................................................8
TERM........................................................................8
Section 3.1 Term.........................................................8
Section 3.2 Renewal Term.................................................8 ARTICLE 4......................................................................8
SERVICES....................................................................8
Section 4.1 General; Service Agreements..................................8
Section 4.2 Migration Services...........................................9
Section 4.3 Specialized Services or Products............................12
Section 4.4 Third Party Services........................................12
Section 4.5 Resources...................................................12
Section 4.6 Cooperation.................................................13
Section 4.7 Affiliates..................................................13
Section 4.8 Changes in Law and Regulations..............................13
Section 4.9 Licenses and Permits........................................14
Section 4.10 Dedicated/Partitioned Environment...........................14
Section 4.11 Services Non-exclusive......................................14
Section 4.12 Correction of Errors........................................15
Section 4.13 Technical Change Control....................................15
Section 4.14 Contract Change Control.....................................16
Section 4.15 System Change Benchmarking..................................17
Section 4.16 Subcontracting..............................................17 ARTICLE 5.....................................................................18
SERVICE LEVELS.............................................................18
Section 5.1 Service Level Agreements....................................18
Section 5.2 Review of Service Levels....................................19
Section 5.3 Measurement and Monitoring Tools; Reporting.................19
Section 5.4 Failure to Meet Service Levels..............................19
Section 5.5 Performance Standards.......................................20
Section 5.6 Benchmarking................................................20
Section 5.7 Advantica Satisfaction Surveys..............................21
Section 5.8 Value Initiatives and Periodic IT Review....................21 ARTICLE 6.....................................................................22
TRANSFERS OF EQUIPMENT, FACILITIES AND THIRD PARTY CONTRACTS...............22
Section 6.1 Assumption of Equipment Leases..............................22
Section 6.2 Use of Advantica Facilities and Equipment...................22
Section 6.3 Third Party Contracts.......................................23
Section 6.4 Agency......................................................24 ARTICLE 7.....................................................................24
PERSONNEL..................................................................24
Section 7.1 Offers and Terms of Employment..............................24
Section 7.2 Key Transferred Employees...................................25
Section 7.3 Key Supplier Positions......................................25
Section 7.4 Supplier Employees Assigned to Advantica Account............25
Section 7.5 Supplier Personnel..........................................26 ARTICLE 8.....................................................................26
INTELLECTUAL PROPERTY RIGHTS AND OBLIGATIONS...............................26
Section 8.1 Advantica Software..........................................26
Section 8.2 Supplier Software...........................................26
Section 8.3 Third Party Software........................................27
Section 8.4 Work Product................................................27
Section 8.5 Use of Concepts, Know-how and Methods.......................28
Section 8.6 Non-Infringement............................................28
Section 8.7 Viruses.....................................................28
Section 8.8 Disabling Code..............................................28 ARTICLE 9.....................................................................28
CONFIDENTIALITY............................................................28
Section 9.1 Definitions............. ...................................28
Section 9.2 Rights, Restrictions and Obligations of the Receiving Party.30
Section 9.3 Rights and Remedies of the Disclosing Party.................31
Section 9.4 Nondisclosure Agreements....................................32
Section 9.5 Ownership of Advantica Data.................................32
Section 9.6 Return of Data..............................................32
Section 9.7 Security....................................................32
Section 9.8 Destroyed or Lost Data......................................33 ARTICLE 10....................................................................34
ACCOUNT MANAGEMENT.........................................................34
Section 10.1 Relationship Executives and Project Executives............34
Section 10.2 Joint Operating Committee and Executive Committee.........34
Section 10.3 Advantica Office Space at Supplier Facilities.............34
Section 10.4 Meetings..................................................34
Section 10.5 Reports...................................................35
Section 10.6 Procedures Manual.........................................35


ARTICLE 11....................................................................36
AUDITS.....................................................................36
Section 11.1 Audit Rights..............................................36
Section 11.2 Payments..................................................37
Section 11.3 Supplier Audits...........................................37
Section 11.4 Survival..................................................37 ARTICLE 12....................................................................37
INSURANCE; RISK OF LOSS....................................................37
Section 12.1 Required Insurance Coverages..............................37
Section 12.2 General Insurance Requirements............................38
Section 12.3 Risk of Loss..............................................39 ARTICLE 13....................................................................39
CHARGES....................................................................39
Section 13.1 Charges...................................................39
Section 13.2 Pass-Through Expenses.....................................39
Section 13.3 Taxes.....................................................40
Section 13.4 Charges Pursuant to Change Control Procedures.............41
Section 13.5 Most Favored Customer.....................................41 ARTICLE 14....................................................................42
INVOICING AND PAYMENT......................................................42
Section 14.1 Invoices..................................................42
Section 14.2 Payment...................................................42
Section 14.3 Proration.................................................43
Section 14.4 Refunds...................................................43
Section 14.5 Setoff and Withholding....................................43 ARTICLE 15....................................................................44
CERTAIN REPRESENTATIONS AND WARRANTIES.....................................44
Section 15.1 Mutual Representations and Warranties.....................44
Section 15.2 Supplier Representations and Warranties...................44
Section 15.3 RFP and Due Diligence Assistance..........................45 ARTICLE 16....................................................................46
INDEMNIFICATION............................................................46
Section 16.1 Indemnification by Supplier...............................46
Section 16.2 Indemnification by Advantica..............................47
Section 16.3 Mutual Indemnification....................................48
Section 16.4 Intellectual Property Indemnification.....................48
Section 16.5 Indemnification Procedures................................49
Section 16.6 Subrogation...............................................50 ARTICLE 17....................................................................50
LIMITATIONS ON LIABILITY...................................................50
Section 17.1 General Intent............................................50
Section 17.2 Limit on Types of Damages Recoverable.....................50
Section 17.3 Limit on Amount of Direct Damages Recoverable.............50
Section 17.4 Force Majeure.............................................52
Section 17.5 Actions of Other Party....................................53


ARTICLE 18....................................................................53
TERMINATION................................................................53
Section 18.1 Termination for Cause.....................................53
Section 18.2 Termination for Convenience...............................55
Section 18.3 Termination for Insolvency................................56
Section 18.4 Termination Upon Force Majeure Event......................56
Section 18.5 Extension of Expiration or Termination Effective Date.....56
Section 18.6 Effect of Termination.....................................57
Section 18.7 Termination/Expiration Assistance.........................57
Section 18.8 Purchase or Lease of Equipment............................57
Section 18.9 Supplier Software License.................................58
Section 18.10 Third Party Contracts.....................................58
Section 18.11 Offers to Supplier Employees..............................58 ARTICLE 19....................................................................59
DISPUTE RESOLUTION.........................................................59
Section 19.1 General...................................................59
Section 19.2 Informal Dispute Resolution...............................59
Section 19.3 Arbitration...............................................59
Section 19.4 Applicable Law............................................60
Section 19.5 Jurisdiction and Venue....................................60
Section 19.6 Equitable Remedies........................................61 ARTICLE 20....................................................................61
MISCELLANEOUS..............................................................61
Section 20.1 Interpretation............................................61
Section 20.2 Binding Nature and Assignment.............................62
Section 20.3 Expenses..................................................62
Section 20.4 Amendment and Waiver......................................62
Section 20.5 Further Assurances; Consents and Approvals................62
Section 20.6 Publicity.................................................62
Section 20.7 Severability..............................................63
Section 20.8 Entire Agreement..........................................63
Section 20.9 Notices...................................................63
Section 20.10 Survival..................................................64
Section 20.11 Independent Contractors...................................64
Section 20.12 Third Party Beneficiaries.................................64
Section 20.13 Counterparts..............................................64


SCHEDULES


Schedule A......Form of Service Agreement
Schedule B......Form of Service Level Agreement


Schedule C......Corporate Service Level Credits and Termination Events
Schedule D......Account Management and Governance Overview


MASTER AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES


THIS MASTER AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES (the "Master Agreement") is made, between Advantica Restaurant Group, Inc., a Delaware corporation ("Advantica"), and Affiliated Computer Services, Inc., a Delaware corporation ("Supplier").


BACKGROUND AND OBJECTIVES


This Master Agreement is entered into in connection with Advantica's decision to contract with Supplier for Supplier's provision of information technology services related to Advantica's business operations. This Master Agreement sets forth the general terms and conditions governing the contractual relationship between Advantica and Supplier. It is the intent of Advantica and Supplier that they will, upon entering into this Master Agreement, enter into one or more Service Agreements pursuant to this Master Agreement and may, from time to time in the future, enter into one or more Value Initiative Agreements or additional Service Agreements setting forth the specific terms and conditions applicable to specific Value Initiatives or Services to be contracted for by Advantica and Supplier.


Supplier is an established provider of a broad range of information technology services. By entering into this Master Agreement and each Service Agreement, Supplier represents that it has, and will have, the skills, qualifications, expertise and experience necessary to perform and manage the services described in each such Service Agreement in an efficient, cost-effective manner with a high degree of quality and responsiveness and has performed and continues to perform the same and similar services for other customers in such manner.


Advantica's objectives in entering into this Master Agreement include obtaining (i) high quality information technology services and systems in the areas described in this Master Agreement and related Service Agreements provided in a cost-effective manner; (ii) a flexible relationship with Supplier under which Supplier will be highly responsive to the requests of Advantica and to changes in technology and methods for providing information technology services, including accommodation of significant changes in volumes of operations, new generations of technology and improved methods of monitoring, measuring and achieving increased levels of service; (iii) continuous improvement in services and reduction of Advantica's associated costs in each area of Services performed by Supplier; and (iv) consistent and effective management of the relationship between Supplier and Advantica. Supplier will thoroughly review and analyze Advantica's needs and requirements for each information technology area described in each Service Agreement. Supplier fully understands Advantica's objectives in entering into this Master Agreement and, with respect to the Services, each Service Agreement. Based on such review and understanding, Supplier represents to Advantica that Supplier currently has the capability to achieve those objectives.


On the basis of the foregoing, Advantica desires to engage Supplier to perform the services described in each Service Agreement entered into pursuant to this Master Agreement.


The foregoing provisions set forth the background under which Advantica is entering into this Master Agreement and any Service Agreements and are intended to be a general introduction to this Master Agreement and such Service Agreements. They are not intended to expand the scope of the parties' express obligations under this Master Agreement or any Service Agreement or to alter the plain meaning of the terms and conditions of this Master Agreement or any Service Agreement. However, to the extent the terms and conditions of this Master Agreement or any Service Agreement do not address a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are to be interpreted and construed consistent with the foregoing provisions.


ARTICLE 1


DEFINITIONS


SECTION 1.1 CERTAIN DEFINITIONS


In this Master Agreement, the following terms shall have the indicated meanings:


"ADVANTICA" means Advantica Restaurant Group, Inc. and each of its Affiliates.


"ADVANTICA DATA" means all Advantica information, whether in written or electronic form.


"ADVANTICA EQUIPMENT" has the meaning given in Section 6.2(a).


"ADVANTICA FACILITIES" has the meaning given in Section 6.2(a).


"ADVANTICA SOFTWARE" means any Software owned by Advantica and used in conjunction with any of the Services.


"AFFILIATE" means, with respect to any specified person or entity, 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. For purposes of this Master Agreement, an "Affiliate" of Advantica includes any business unit or division of Advantica (including discrete restaurant "concepts").


"BUSINESS DAY" means any day during which Advantica is generally conducting business in its corporate offices.


"CHANGE OF CONTROL" means the transfer of the Control of a Party from the person(s), entity or entities who hold such Control on the Effective Date of this Master Agreement or the applicable Service Agreement Effective Date to one or more other persons or entities, but shall not include a transfer of the Control of a Party to an Affiliate of such Party.


2


"CHANGE CONTROL DOCUMENT" has the meaning given in Section 4.14(c).


"CHANGE CONTROL PROCEDURES" has the meaning given in Section 4.14(a).


"CHARGES" has the meaning given in Section 13.1.


"COMMERCIALLY REASONABLE EFFORTS" means, with respect to any objective, a level of effort to achieve such objective equal to or exceeding the higher of (i) the level of effort to achieve the same or similar objectives used by Advantica or any third party providing such services for Advantica immediately before the applicable Service Agreement Effective Date, or (ii) the level of effort to achieve the same or similar objectives used by other sophisticated outsourcing companies providing services similar to the Services, and in any event a prompt and diligent effort, made in a professional and workmanlike manner, using properly trained and qualified individuals.


"CONFIDENTIAL INFORMATION" has the meaning given in Section 9.1(b).


"CONFIDENTIAL MATERIALS" has the meaning given in Section 9.1(c).


"CONTRACT YEAR" with respect to a Service Agreement, means each annual period beginning on the Service Agreement Effective Date or the Service Commencement Date as defined within a Service Agreement.


"CONTROL" and its derivatives means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, or otherwise.


"CORPORATE SERVICE LEVEL CREDITS" has the meaning given in Section 5.4(a).


"DISCLOSING PARTY" has the meaning given in Section 9.1(a).


"EFFECTIVE DATE" means the date of execution of this Master Agreement.


"EQUIPMENT" means the computer, communications and other equipment owned or leased by Supplier and used by Supplier to provide the Services. Equipment includes, without limitation, all associated accessories and peripheral devices used in the provision of Services.


"EXECUTIVE COMMITTEE" has the meaning given in Section 10.2(b).


"FORCE MAJEURE EVENTS" has the meaning given in Section 17.4(a).


"JOINT OPERATING COMMITTEE" has the meaning given in Section 10.2(a).


"KEY SUPPLIER POSITIONS" has the meaning given in Section 7.3(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,


3


litigation, settlement, judgment, appeal, interest and penalties) incurred by an indemnified party hereunder in connection with an indemnified third party claim.


"MASTER AGREEMENT" means this Master Agreement For Information Technology Services, all Master Schedules, and, when the meaning so requires, all Service Agreements.


"MASTER SCHEDULE(S)" has the meaning given in Section 2.2.


"MATERIAL SUBCONTRACT" has the meaning given in Section 4.16(a).


"MIGRATION COMPLETION DATE" means the date a migration is completed in accordance with a Migration Plan.


"MIGRATION MILESTONES" has the meaning given in Section 4.2(b).


"MIGRATION PLAN" has the meaning given in Section 4.2(c).


"MIGRATION SERVICES" has the meaning given in Section 4.2(c).


"MIGRATION SOW" has the meaning given in Section 4.2(a).


"NOTICE OF ASSUMPTION OF DEFENSE" has the meaning given in Section 16.5(a).


"PARTIES" means Advantica and Supplier, and "PARTY" means either one of them.


"PASS-THROUGH EXPENSES" means the actual invoiced amounts (excluding any Supplier profit, administrative fee or overhead charges unless expressly provided for in the applicable Service Agreement) charged to Supplier by third parties that Advantica has agreed to pay directly or for which Advantica has agreed to reimburse Supplier.


"PERFORMANCE STANDARDS" has the meaning given in Section 5.5(a).


"PRELIMINARY MIGRATION PLAN" is a preliminary plan for migration of Services to be included as part of a Service Agreement, as described in Section 4.2(b).


"PROCEDURES MANUAL" has the meaning given in Section 10.6(a).


"PROJECT EXECUTIVE" has the meaning given in Section 10.1.


"RECEIVING PARTY" has the meaning given in Section 9.1(a).


"REPORTS" means, collectively, single or periodic reports relating to the Services that are provided by Supplier to Advantica under any Service Agreement, as defined in Section 10.5.


"RULES" has the meaning given in Section 19.3(a).


4


"SCHEDULES" means any schedule, exhibit, agreement or other document either (i) attached to this Master Agreement, (ii) attached to Service Agreements, or (iii) executed by the Parties at any time hereafter, if such document states that it is a schedule to this Master Agreement or any Service Agreement.


"SERVICE AGREEMENT" has the meaning given in Section 2.1.


"SERVICE AGREEMENT EFFECTIVE DATE" means the date on which a Service Agreement is executed by both Parties or as otherwise provided in the applicable Service Agreement.


"SERVICE COMMENCEMENT DATE" means the date that Supplier begins providing Services under a Service Agreement.


"SERVICE AGREEMENT TERM" means the term of the applicable Service Agreement, as defined in each Service Agreement.


"SERVICE LEVEL" has the meaning given in Section 5.1.


"SERVICE LEVEL AGREEMENT" has the meaning given in Section 5.1.


"SERVICE CREDITS," means, collectively, Service Level Credits and Corporate Service Level Credits.


"SERVICE LEVEL CREDITS" has the meaning given in Section 5.4(a).


"SERVICES" has the meaning given in Section 4.1.


"SIMILARLY SITUATED SUPPLIER CUSTOMERS" has the meaning given in Section 13.5.


"SOFTWARE" means any computer software that relates to Services provided under a Service Agreement, and includes any Advantica Software, Supplier Software and Third Party Software.


"SUPPLIER ENVIRONMENT" has the meaning given in Section 15.2(f).


"SUPPLIER FACILITIES" means the facilities owned or leased by Supplier and from which the Supplier will provide any Services as specifically identified in a Services Agreement.


"SUPPLIER PERSONNEL" means employees of Supplier and its subcontractors assigned to performing Services.


"SUPPLIER SOFTWARE" means any Software owned by Supplier and used in conjunction with any of the Services.


"SYSTEM CHANGE" has the meaning given in Section 4.15.


5


"TERM" has the meaning given in Section 3.1. When used herein in the context of a Service Agreement, "Term" refers to the applicable Service Agreement Term.


"TERMINATION/EXPIRATION ASSISTANCE" has the meaning given in Section 18.7(a).


"THIRD PARTY CONSENTS" has the meaning given in Sections 6.3(c).


"THIRD PARTY CONTRACTS" means any contract that is a Third Party Software License or Third Party Service Contract.


"THIRD PARTY SERVICE CONTRACTS" means, collectively, (i) the agreements between Advantica and a third party pursuant to which the third party is providing to Advantica immediately before a Service Agreement Effective Date any services included within the Services, and (ii) the agreements between Supplier and a third party pursuant to which the third party is providing to Advantica or Supplier at any time during the applicable Service Agreement Term any services included within the Services.


"THIRD PARTY SOFTWARE" means any Software that is owned by a person other than Supplier or Advantica and used to provide the
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