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EYE » Topics » ADDITIONAL COVENANTS

This excerpt taken from the EYE 8-K filed Jul 3, 2007.

ADDITIONAL COVENANTS

23.01 By AMO.

AMO covenants and agrees with IBM that during the Term and the Termination Assistance Period:

 

  (1) AMO shall comply with all applicable Federal, state, local or other laws and regulations applicable to AMO in connection with its obligations under this Agreement and shall obtain all applicable permits and governmental licenses required of AMO in connection with its obligations under this Agreement.

 

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23.02 By IBM.

IBM covenants and agrees with AMO that during the Term and the Termination Assistance Period:

 

  (1) IBM shall comply with all applicable Federal, state, local or other laws and regulations applicable to IBM as an information technology services provider and shall obtain all applicable permits and governmental licenses required of IBM in connection with its obligations under this Agreement;

 

  (2) None of the IBM Proprietary Software, the Developed Software, the Work Product, or other items created by, or on behalf of, IBM and furnished to AMO hereunder will infringe upon the proprietary rights of any third party (except such infringements as may result from modifications by AMO or AMO Agents); provided, however, that the sole remedy for breach of this covenant is the indemnification obligations in Section 27.02 and Section 27.03;

 

  (3) IBM and IBM Staff will use commercially reasonable efforts to not code or knowingly or negligently introduce viruses or similar items into any of the Systems. IBM agrees that, in the event a virus or similar item is found to have been introduced into any of the Systems by IBM, IBM shall use its commercially reasonable efforts at no additional charge to assist AMO in correcting and reducing the effects of the virus or similar item and, if the virus or similar item causes a loss of operational efficiency or loss of data, to assist AMO to the same extent to mitigate and restore such losses; the foregoing, coupled with Section 15.02, states IBM’s sole and exclusive remedy with regard to viruses;

 

  (4) Without the consent of AMO, IBM and/or IBM Staff (i) shall not insert into the Software used to provide the Covered Services any code that would have the effect or ability of disabling or otherwise shutting down all or any portion of the Covered Services, other than code which is inserted into commercially available products to ensure that the purchaser or licensee uses the product in accordance with the license agreement, and (ii) with respect to any disabling code that may be part of the Software used to provide the Covered Services, IBM and/or IBM Staff shall not invoke such disabling code at any time, including upon expiration or termination of this Agreement, without AMO’s consent; and

 

  (5) The Covered Services shall be provided in conformity with the Service Levels set forth in the SOW; provided, however, that the sole remedy for breach of this covenant is the Service Level Credits set forth in Schedule B (Service Levels).

 

  (6) The Systems and the Covered Services shall conform to the Transition Acceptance Criteria and shall operate in conformity therewith.

 

  (7)

the IBM Provided Systems shall be maintained in accordance with the specifications of the respective vendors of the hardware and software components thereof, and IBM shall, at no additional charge to AMO, keep all IBM Provided Systems properly maintained and current relative to the software and hardware

 

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maintenance recommendations of the respective vendors, including any engineering changes and software enhancements or updates and revisions to correct errors in the components of the IBM Provided Systems provided or recommended by such vendors.

 

  (8) the Covered Services shall be rendered in a professional and workmanlike manner in accordance with the requirements of the SOW and the Service Levels and in accordance with the generally accepted best practices used in well managed operations performing services similar to the Services, provided, however, to the extent that a Service Level defines the required level of IBM’s performance for any portion of the Covered Services, this Section shall not impose upon IBM an obligation to perform at a level higher than such Service Level.

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