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EYE » Topics » PAYMENTS TO IBM

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

PAYMENTS TO IBM

18.01 Charges.

In consideration of IBM providing the Designated Services, AMO shall pay to IBM the Charges as specified in Schedule C (Charges), together with other amounts as described in this Agreement. All Charges are expressed in and are payable in United States Dollars (US$).

18.02 Charges All Inclusive.

Except as may be expressly set forth in this Agreement there shall be no other charges, fees, costs expenses or any other amounts payable by AMO to IBM under this Agreement.

18.03 Adjustments to Charges.

Except as may be otherwise expressly provided in this Agreement, there shall be no adjustments to the Charges.

18.04 Rights of Set-Off.

With respect to any amount that IBM does not dispute in good faith should be reimbursed or paid to AMO, AMO may upon notice to IBM deduct the entire amount owed to AMO against the Charges otherwise payable or expenses owed to IBM under this Agreement.

 

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18.05 Proration.

All periodic Charges under this Agreement are to be computed on a calendar month basis and shall be prorated on a per diem basis for any partial month.

18.06 Refundable Items.

In the event IBM receives during the Term any refund, credit or other rebate (including deposits) in connection with an AMO Third Party Contract that is attributable to periods prior to the Effective Date or for which AMO retained financial responsibility after the Effective Date, then IBM shall promptly (1) notify AMO of such refund, credit or rebate and (2) pay to AMO the full amount of such refund, credit or rebate.

18.07 Unused Credits.

Any unused credits against future payments owed to either Party by the other pursuant to this Agreement shall be paid to the applicable Party within thirty (30) days of the earlier of the expiration or termination of this Agreement.

18.08 Not Used

18.09 Taxes.

 

  (1) IBM is solely responsible for payment of any income, sales, service, withholding, value-added, use, intangible or similar taxes, duties, levies, imposts, deductions, assessments, fees or similar charges however designated, based upon or measured by (i) IBM’s cost in acquiring equipment, materials, supplies or services furnished to and used or consumed by IBM in providing and performing the Covered Services, (ii) the value or cost or use of all IBM Equipment, IBM Software, and other IBM resources used or consumed by IBM, however, described, and (iii) IBM’s revenues, income and/or profit. Each Party shall bear sole responsibility for all taxes, assessments and other real or personal property-related levies on its owned or leased real or personal property, for franchise or similar taxes on its business, for employment taxes on its employees, and for intangible taxes on property it owns or license.

 

  (2) Notwithstanding Section 18.09(1) immediately above, AMO shall be responsible for any existing and future value added, services, income, sales, use, consumption, and/or gross receipts tax that are assessed on the provision of the Covered Services by IBM to the AMO Entities under the Agreement (including telecommunications taxes for network access (for example, telecommunications line) and services). AMO shall be responsible for and pay the amount of any such tax to IBM, or as the law otherwise requires, in addition to the Charges.

 

  (3)

The Parties shall reasonably cooperate, and instruct any of the Parties’ entities to cooperate, as and to the extent reasonably requested by either Party, in connection with the filing of tax returns and any governmental audit, litigation or other proceeding with respect to tax items attributable to the Covered Services. Each

 

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Party’s cooperation shall include (a) upon the other Party’s request, the provision, at reasonable rates, of existing records and information not considered to be a Party’s Confidential Information that are reasonably relevant to such other Party’s tax return, audit, litigation or other proceeding relating to these tax items and liabilities, (b) making reasonably available, at reasonable rates, employees having knowledge about these tax items and liabilities, and (c) the preservation of any information, records or documents mutually agreed to by the Parties in advance until the expiration of any applicable tax statute of limitations or extensions thereof (but shall not destroy any of the information, records or documents until the expiration has been confirmed in writing by the other Party; provided, however, that, if a proceeding has been instituted for which the information, records or documents are required prior to the expiration of the applicable statute of limitations, the information, records or documents shall be retained until there is a final determination with respect to that proceeding). Nothing herein contained shall interfere with the right of the AMO Entities or IBM to arrange its tax affairs in whatever manner it deems appropriate nor oblige the AMO Entities or IBM to disclose any information relating to its tax affairs or any computations in respect thereof.

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