Computer and Communications Systems Agreement - Quality Dining Inc. and Bagel Acquisition Corp.
COMPUTER AND COMMUNICATIONS SYSTEMS AGREEMENT
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This Computer And Communications Systems Agreement ("Agreement") is made as of
the 12th day of August, 1996 by and between Quality Dining, Inc., an Indiana
corporation ("Company"), and Bagel Acquisition Corporation, an Indiana
corporation ("Developer").
RECITALS
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WHEREAS, The Company and the Developer have entered into or propose to
enter into one or more Franchise Agreements (each a "Franchise Agreement" and,
collectively, the "Franchise Agreements"), whereby the Company or a subsidiary
of Company shall grant to the Developer the right to operate a Bruegger's Bagel
Bakery Restaurant (the "Restaurant").
WHEREAS, under the Franchise Agreements, Developer is required to operate
the Restaurants in compliance with the specifications and standards which
Company prescribes from time to time for the Restaurants, including without
limitation, Company's specification and standards for computer hardware and
software and communications systems; and
WHEREAS, Company has developed specifications and standards for computer
hardware and software and communications systems to be used in the operation of
the Restaurants.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for good and valuable consideration, the sufficiency and receipt of which is
hereby acknowledge, the parties hereby agree as follows:
1. DEFINITIONS.
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1.1 "COMPUTER SYSTEM" - Those brands, types, makes, and/or models of
communications and computer systems or hardware specified or required by
Company for use by, between, or among the Restaurants.
1.2 "SPECIFIED SOFTWARE" - Such software, programming, and services which
Company from time to time specifies or requires for use by developers of
Restaurants.
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2. COMPUTER SYSTEMS AND SPECIFIED SOFTWARE.
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2.1. Developer shall (i) acquire a Computer System for each Restaurant
opened and operated under the Franchise Agreements and acquire the right to
use the Specified Software; (ii) obtain any and all peripheral equipment
and accessories and arrange for any and all support services that may be
necessary to enable the Computer System and the Specified Software to
operate as intended, and (iii) take all other actions (including but not
limited to installation of electrical wiring and cabling, and temperature
and humidity controls) that may be necessary to prepare the Restaurant to
enable the Computer System and the Specified Software to operate as
required; and (iv) commence using the Computer System and the Specified
Software in the operation of each Restaurant in the manner required.
Developer shall be responsible for all costs associated with the foregoing,
including but not limited to transportation; installation; sales, use,
excise and similar taxes; and site preparation, and Company shall have no
liability to Developer or to any other party in connection with any of the
foregoing.
2.2. Developer acknowledges that Company may, during the term of this
Agreement, require Developer to modify, enhance and/or replace all or any
part of the Computer System and/or the Specified Software at Developer's
expense. Any such modifications, enhancements, and replacements may
require Developer to incur costs to purchase, lease and/or license new or
modified computer hardware and/or software or other equipment and to obtain
different and/or additional service and support services during the term of
this Agreement. Developer acknowledges that Company cannot estimate the
costs of future enhancements, modifications, and replacements to the
Computer system or the Specified Software.
3. INITIAL FEE. For each Restaurant Franchise Agreement executed between
Developer and Company, Developer shall pay Company a fee of Ten Thousand Dollars
($10,000.00) for services provided in connection with the initial set-up for
each such Restaurant.
4. SOFTWARE SUPPORT SERVICE. During the term of this Agreement and, provided
that Developer is in compliance with the terms hereof, Company shall provide to
Developer such support services as Company deems reasonably necessary to cause
the Computer System to operate in accordance with the standards for the software
specified from time to time by Company.
5. SOFTWARE SUPPORT SERVICE FEE. For the software support service provided by
Company to Developer during the term of this Agreement, Developer agrees to pay
to Company a software support fee (the "Software Support Fee") in the amount of
Five Hundred Dollars ($500.00) per accounting period ("Accounting Period"), in
accordance with the Company's thirteen four-week account periods, for each
Restaurants and office location open and operational during any portion of the
applicable Accounting Period.
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The Software Support Fee may be increased by Company from time to time, at its
sole option, upon written notice to Developer.
6. MODIFICATION AND ENHANCEMENT. From time to time during the term of this
Agreement, Developer may request assistance from Company regarding use of the
Computer System or Specified Software or may request that Company provide
additional software for Developer's use. Developer agrees to pay Company for any
out of pocket expenses incurred by Company as a result of Developers use of
Company's MIS support services or proprietary software.
7. TERM. The term of this Agreement shall be for a period of time commencing
on the effective date and continuing so long as any of the Franchise Agreements
remain in effect.
8. ASSIGNMENT. This Agreement and the rights and obligations arising
hereunder may not be assigned by Developer except in conjunction with an
assignment of the Franchise Agreement made in compliance with the terms of the
Franchise Agreement. This Agreement is fully assignable by Company and shall
inure to the benefit of any assignee or other successor to the interests of
Company therein.
9. MISCELLANEOUS.
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9.1 In performing the Services set forth in this Agreement, the Company
will have neither express or implied power to execute agreements on behalf
of the Developer or in any manner bind the Developer as to any matter not
within the scope of this Agreement.
9.2 All notices provided for in this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
overnight express or facsimile transmission or registered or certified
mail, return receipt requested and postage prepaid. Any party may change
the address to which notices hereunder are to be sent to it by giving
written notice of such change of address in the manner herein provided for
giving notice. Any notice delivered personally or by overnight express
courier or facsimile transmission shall be deemed to have been given on the
date it is so delivered, and any notice delivered by registered or
certified mail delivery service shall be deemed to have been duly given
three business days after it is sent to the intended recipient at the
address set forth above.
9.3 THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
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9.4 A failure of any party to insist in any instance upon the strict and
punctual performance of any provision of this Agreement shall not
constitute a continuing waiver of such provision. No party shall be deemed
to have waived any rights, power, or privilege under this Agreement or any
provisions hereof unless such waiver shall have been in writing and duly
executed by the party to be charged with such waiver, and such waiver shall
be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the waiving party or the obligations of the
other party or parties in any other respect or at any other time. If any
provision of this Agreement shall be waived, or be invalid, illegal, or
unenforceable, the remaining provisions of this Agreement shall be
unaffected thereby and shall be unaffected thereby and shall remain binding
and in full force and effect. 9.5 This Agreement may be amended or modified
only by a written instrum ent signed by each of the parties hereto.
9.5 This Agreement may be amended or modified only by written instrument
signed by each of the parties hereto.
9.6 This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, either oral or written with respect thereto.
9.7 Nothing contained in this Agreement is intended, nor shall it be
construed, to create any rights in any person not a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
COMPANY: DEVELOPER:
Quality Dining, Inc. Bagel Acquisition Corporation
By: /s/ Michael G. Sosinski By: /s/ Daniel B. Fitzpatrick
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Name: Michael G. Sosinski Name: Daniel B. Fitzpatrick
Title: Chief Financial Officer Title: President