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EYE » Topics » CHANGES TO IBM SERVICES

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

CHANGES TO IBM SERVICES

5.01 Changes to Services.

AMO may from time to time during the Term request IBM to perform Modified Services or to perform an Out-of-Scope Service. Upon receipt of such a request from AMO, IBM shall, as soon as reasonably possible, but in no event more than thirty (30) days from receipt of AMO’s request, provide AMO with (included within the Annual Services Charges at no additional cost to AMO):

 

  (1) a written description of the work IBM anticipates performing in connection with such Out-of-Scope Service or Modified Services;

 

  (2) a schedule for commencing and/or completing such Out-of-Scope Service or Modified Services;

 

  (3) IBM’s prospective Charges, including a detailed breakdown of any applicable Charges for an Out-of-Scope Service, or any changes to the applicable Charges that may result from Modified Services;

 

  (4) when appropriate, a description of any new or changed Software and/or Equipment to be provided in connection with such Out-of-Scope Service or Modified Services;

 

  (5) when appropriate, the Software and Equipment and run-time requirements necessary to develop and operate any new Software and/or Equipment in connection with any such Out-of-Scope Service or Modified Services;

 

  (6) a written description of the human resources necessary to develop and operate or provide the Out-of-Scope Service or Modified Services;

 

  (7) when appropriate, a list of any existing Software and/or Equipment included in or to be used in connection with such Out-of-Scope Service or Modified Services; and

 

  (8) when appropriate, acceptance test criteria and procedures for any new Software or any products, package or services to be used in performing the Out-of-Scope Service or Modified Services.

 

  (9) when appropriate, Out-of-Scope Service Levels as may be mutually agreed upon for any Out-of-Scope Service.

 

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  (10) when appropriate, adjusted Service Levels as may be mutually agreed upon for any Modified Services.

If the Parties are unable to mutually agree upon whether any particular request is deemed an Out-of-Scope Service or Modified Services, such issue shall be resolved by the Steering Committee. If the Steering Committee is unable to agree, then the rest of the dispute resolution process set forth in Article 24 shall be followed. IBM shall not begin performing any Out-of-Scope Service or Modified Services until AMO has provided IBM with written authorization to perform the Out-of-Scope Services or Modified Services from the AMO Manager. All Out-of-Scope Services and Modified Services shall be made through the Change Control Procedures.

5.02 Third Party Services.

Notwithstanding any request made to IBM by AMO pursuant to Section 5.01, AMO shall have the right to contract with a third party to perform any Out-of-Scope Service, including systems operations and related services, to augment or supplement the Covered Services or to interface with the Software used to provide the Covered Services and the Equipment used to provide the Covered Services. Upon AMO’s request, IBM shall assist AMO in identifying qualified third party suppliers to provide Out-of-Scope Services. In the event AMO contracts with a third party to perform any Out-of-Scope Service, IBM shall reasonably cooperate in good faith with AMO and any such third party (provided that AMO will reimburse IBM for any mutually agreed, reasonable (as determined by the Steering Committee) documented added costs or expenses that are (i) incurred by IBM in the performance of the Covered Services and (ii) directly related to or resulting from the performance of the Out-of Scope Services by such third party), to the extent reasonably required by AMO, including by providing:

 

  (1) in writing, applicable requirements, standards and policies for the Designated Services, to the extent available, so that the enhancements or developments of such third party may be operated by IBM or any other third party and are compatible with the Systems, to the extent necessary to provide the Covered Services;

 

  (2) assistance and support services to such third party; and

 

  (3) access to the Software used to provide the Covered Services and the Equipment used to provide the Covered Services, to the extent permitted under any underlying agreements regarding such Software, and that such access is required for the Out-of-Scope Service and does not adversely affect IBM’s ability to perform its obligations pursuant to this Agreement.

5.03 Additional Business Units.

AMO reserves the right to add existing or new business units to this Agreement, provided however, that the Parties shall negotiate in good faith with regard to any additional mutually-agreeable Charges that may be due to IBM as a result of the inclusion of such additional business units. AMO shall share such information with IBM as may be necessary for AMO and IBM to jointly determine which resources will be required to meet AMO’s needs. AMO shall not be obligated to obtain the Covered Services from IBM with respect to any additional entity or business unit or pursuant to an acquisition.

 

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