Advanced Medical Optics (EYE)

CONFLICTS OF INTEREST; AUDITS

20.01 Conflicts of Interest.

Except as otherwise expressly provided herein, neither IBM nor any director, employee or agent of IBM or IBM Staff shall give to or receive from any director, employee or agent of AMO or any of the AMO Controlled Affiliates any significant gift, significant entertainment or other favor of significant value outside of the normal course of business, or any commission, fee or rebate. Likewise, neither IBM nor any director, employee or agent of IBM or IBM Staff directly involved in providing the Covered Services shall, without prior written notification thereof to AMO, enter into any business relationship with any director, employee or agent of AMO or any of the AMO Controlled Affiliates, unless such person is acting for and on behalf of AMO or any of the AMO Controlled Affiliates.

20.02 Record Retention.

IBM and IBM Staff shall maintain complete and accurate records in connection with this Agreement and all transactions related thereto, including all routinely prepared records and supporting documentation appropriate or necessary to document the Covered Services performed by IBM and the Charges paid or payable by AMO under this Agreement for a period of *** after the termination or expiration of this Agreement.

20.03 Services.

Upon reasonable advance notice from AMO, and subject to the provisions of Section 20.05 hereof, IBM shall provide AMO, its auditors (including internal audit staff and external auditors) and any of the AMO Entities’ regulators with access to, and any assistance that they may reasonably require, with respect to, the appropriate portions of the Service Locations and the Systems and any of the records described in Section 20.02, for the purpose of performing audits or inspections to verify the performance of the Covered Services in accordance with the terms of the Agreement, the Systems, the adequacy of the IBM security systems, procedures and the Data and Systems Safeguards, and the business of the AMO Entities relating to the Covered Services and any of the records relating thereto. If any audit by an auditor designated by AMO or a regulatory authority results in IBM being notified that IBM or IBM Staff are not in compliance with any law, regulation, or audit requirement that is the responsibility of IBM under this Agreement, if IBM or IBM Staff is in fact not in compliance, IBM shall, and shall cause IBM Staff to, promptly comply with such audit. IBM shall bear the expense of any such action that is (1) required by a law, regulation or other audit requirement relating to IBM’s business or (2) necessary due to IBM’s noncompliance with any law, regulation or audit requirement imposed on IBM. To the extent the expense is not payable by IBM pursuant to the preceding sentence, AMO shall bear the expense of any such compliance that is (a) required by a law, regulation or other audit requirement relating to the AMO Entities’ businesses or (b) necessary due to the AMO Entities’ noncompliance with any law, regulation or audit requirement imposed on the AMO Entities.

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20.04 Charges.

Upon reasonable advance notice from AMO, and subject to the provisions of Section 20.05 hereof, IBM shall provide AMO and its auditors with access to audit, review and copy such records and supporting documentation relating to the Charges (other than the Annual Services Charges, or other fixed Charges) as may be reasonably requested by AMO to determine if such Charges are accurate and in accordance with this Agreement.

20.05 Conduct of Audits.

Any third party auditor designated by AMO shall (i) not be engaged primarily in the business of providing information technology infrastructure support services, including deskside support, help desk, IMAC, hardware or software deployment, outsourcing or related consulting services (other than an accounting or auditing firm that has a separate business unit performing such services, provided that no employees or agents of that business unit are involved in such audit), (ii) must execute a reasonable nondisclosure agreement with IBM that protects the Confidential Information of IBM and contains provisions at least as stringent as those set forth in Article 21, and (iii) will not be engaged on a contingency fee basis. Any audit conducted under this Agreement shall be conducted during normal business hours upon at least thirty (30) days advance written notice, or upon lesser notice if IBM and AMO agree in the Policy and Procedures Guide that certain audits, such as security audits, may be conducted on shorter notice; provided that IBM shall not be required to make such records available for inspection more than once per year unless otherwise provided for under this Agreement or AMO requests in good faith more frequent inspections, based on having reasonable grounds to suspect IBM may be in material breach of IBM’s obligations under the Agreement, or unless required to meet AMO’s regulatory requirements. In no event shall AMO or its auditors or regulators be entitled to, or have any access to, proprietary information of IBM, the books of IBM, or records pertaining to IBM’s other customers or any affiliate of IBM that is not performing a portion of the Covered Services. Subject to the provisions of Section 20.04(2), any audit conducted pursuant to this Agreement shall be at the sole expense of AMO, shall apply only to the previous twelve (12)

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months, and shall be subject to all of IBM’s policies and reasonable instructions relating to safety, security and standards of appearance and conduct while on IBM’s premises and shall be conducted expeditiously and in a manner designed to minimize, to the extent reasonably practicable, any interference with or disruption of the normal business operations of IBM, and in no event shall any audit be conducted in a manner that interferes with IBM’s other customers. If any audit activities interfere with IBM’s performance of the Covered Services, or impairs IBM’s performance of the Covered Services in accordance with the Service Levels, IBM shall be relieved of such performance obligations to the extent caused by such audit activity. If the assistance required of IBM causes IBM to expend additional resources or incur additional costs not within the scope of the Covered Services and Baselines to provide such assistance, AMO shall reimburse IBM for such reasonable and necessary costs in connection with all such audits in excess of one audit in each calendar year.