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EYE » Topics » PAYMENT SCHEDULE AND INVOICES

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

PAYMENT SCHEDULE AND INVOICES

19.01 Charges.

IBM shall invoice AMO during each month of the Term for the monthly pro rata portion of the Annual Services Charges for the Designated Services to be performed in accordance with this Agreement during that month, and any other Charges incurred during the month as set forth in the Agreement (for example, one-time charges associated with Transition) . Other Charges associated with the Covered Services will be invoiced in the period after AMO incurs such Charges, or as otherwise set forth in the Agreement.

19.02 Payment of Invoices.

 

  (1) Subject to Section 19.03 (Disputed Charges/Credits) below, AMO shall pay each invoice, by wire transfer or other electronic means acceptable to IBM to an account specified by IBM, on or before the date (called the “Payable Date”) as established below:

 

  (a) with respect to the monthly pro rata portion of the Annual Services Charges, the last day of the calendar month in which AMO receives the invoice for such monthly pro rata portion of the Annual Services Charges from IBM, provided AMO receives such invoice on or before the *** day of the month, otherwise *** after AMO’s receipt of such invoice; and

 

  (b) with respect to any other Charges, *** after AMO’s receipt of such invoice.

 

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  (2) If any payments or portions thereof are not received by IBM within *** after the Payable Date, AMO will also pay IBM a late fee for each day between and including the *** day after the Payable Date and the date IBM receives such late payment in full. The amount of the late fee will be invoiced to AMO and payable in accordance with Section 19.02(1) above. The late fee will be calculated on the past due amount based on the lesser of:

 

  (a) *** of such payments for every thirty (30) days or portion thereof; or

 

  (b) the maximum amount permissible by the applicable law.

 

  (3) In respect of disputed invoices where IBM amends an invoice in satisfaction of the dispute or provides documentation required to substantiate invoice details, the time period for payment specified in this Section shall govern from the date of receipt of the amended invoice or the required documentation. IBM shall provide invoices with varying degrees of detail (e.g., per End-User, product, department, project, site), as reasonably requested by AMO.

19.03 Disputed Charges/Credits

 

  (1) Payment of Undisputed Amounts. In the event that AMO or IBM disputes the accuracy or applicability of a charge or credit or other financial arrangement described in this Agreement, the disputing Party shall notify the other Party of such dispute as soon as practicable after the discrepancy has been discovered. The Parties will investigate and attempt to resolve the dispute pursuant to Sections 24.01 and/or 24.02. Any undisputed amounts contained in or applicable to an invoice or otherwise payable or creditable will be paid and any undisputed credit amounts will be promptly credited by AMO or IBM as applicable. Unpaid and uncredited monies withheld in accordance with Section 19.03(2) will not be considered a basis for monetary default under or breach of the Agreement.

 

  (2) Withholding of Disputed Amounts. AMO may withhold payment of particular Charges that AMO disputes in good faith with respect to any invoice, up to an amount equal to *** of the Charges reflected in such invoice, provided that AMO may not withhold in the aggregate at any time an amount equal to *** the then-current monthly pro rata portion of the Annual Services Charge (the “Disputed Charges Cap”). Disputed charges in excess of the Disputed Charges Cap shall be paid to IBM when due without prejudice to AMO’s rights. AMO shall provide IBM, as soon as reasonable prior to the Payable Date, a reasonably detailed explanation of the basis for its dispute and withholding its payment of the Charges associated with such dispute. AMO and IBM shall both pursue a prompt and expeditious resolution of the dispute.

 

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