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EYE » Topics » PROJECT STAFF

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

PROJECT STAFF

12.01 IBM Project Executive.

Prior to the Effective Date, IBM shall appoint an individual (the “IBM Project Executive” or “IBM PE”) who shall serve on-site at the AMO headquarters facility, on a full-time basis, as the primary IBM representative under this Agreement. IBM’s appointment of any IBM Project Executive shall be subject to AMO’s prior approval. The IBM Project Executive shall (1) have overall responsibility for oversight of all aspects of the delivery of the Covered Services and for managing and coordinating the performance of IBM’s resources and obligations under this Agreement and (2) be authorized to act for and on behalf of IBM with respect to all matters relating to this Agreement, other than entering into contracts or amendments to this Agreement.

12.02 IBM Key Employees.

With respect to the IBM Key Employees identified in Schedule G (IBM Key Employees), the Parties agree as follows:

 

  (1) Initially, each IBM Key Employee shall be dedicated to the AMO account on a full-time basis. However, such staffing level is based on an expectation of the substantial growth and expansion of the Covered Services in support of AMO’s business requirements. Should such substantial growth and expansion not occur, or be significantly delayed, IBM may, in consultation with AMO, reduce the amount of time and effort the IBM Key Employees devote to the provision and delivery of the Covered Services to a level reasonably necessary for the performance of their respective duties under this Agreement.

 

  (2) Before assigning an individual to a IBM Key Employee position, whether as an initial assignment or as a replacement, IBM shall (a) notify AMO of the proposed assignment, (b) introduce the individual to appropriate representatives of AMO, (c) consistent with IBM’s reasonable personnel practices, provide AMO with a résumé and any other information regarding the individual that may be reasonably requested by AMO and (d) obtain AMO’s approval for such assignment.

 

  (3)

IBM shall not replace or reassign (a) the IBM Project Executive for *** from the later of the Effective Date or the date on which the IBM Project Executive was

 

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assigned to the AMO account or (b) the other IBM Key Employees for *** from the later of Effective Date and the date on which any such IBM Key Employee was designated as a IBM Key Employee, unless AMO consents in writing to such reassignment or replacement or such IBM Key Employee (i) voluntarily resigns from IBM, (ii) is dismissed by IBM for misconduct, (iii) unsatisfactory performance with respect to his or her duties and responsibilities to IBM, or to AMO pursuant to this Agreement, (iv) dies or is unable to work due to his or her disability, or (v) indicates in a signed writing to AMO that he/she is seeking reassignment due to personal reasons and not at the direction of IBM.

 

  (4) If AMO decides for any reason that is not unlawful that any IBM Key Employee should not continue in that position, AMO may, in its sole good faith discretion and upon notice to IBM, require removal of such IBM Key Employee. IBM shall, as soon as reasonably practicable, replace such IBM Key Employee.

 

  (5) IBM shall maintain backup procedures and conduct the replacement procedures for the IBM Key Employees in such a manner so as to assure an orderly succession for any IBM Key Employee who is replaced. Upon request, after a determination that a IBM Key Employee will be replaced, IBM shall make such procedures available to AMO.

12.03 Project Staff.

IBM shall appoint individuals with suitable training and skills to perform the Covered Services to the Project Staff. IBM shall provide AMO with a list of all IBM employees assigned to the Project Staff at the end of every ninety (90) day period after the Effective Date. Except as otherwise approved by AMO (in its sole discretion), IBM personnel located on the AMO premises may only provide services on such premises in support of operations of AMO. IBM shall notify AMO as soon as possible after dismissing or reassigning any member of the Project Staff. IBM shall use commercially reasonable efforts to minimize the turnover of its Project Staff and shall provide AMO with reasonable advance notice prior to any dismissal or reassignment of any member of its Project Staff.

12.04 Subcontractors.

 

  (1) Without the prior written approval of AMO, which may or may not be given in AMO’s reasonable discretion, IBM shall not delegate or subcontract any of its responsibilities under this Agreement pursuant to (a) any subcontract for any of the Covered Services involving, or likely to involve, the payment of *** or more per year or (b) multiple subcontracts with the same subcontractor for any of the Covered Services involving, or likely to involve, the payment in the aggregate of *** or more per year.

 

  (2)

As a part of IBM’s proposal seeking AMO’s written approval for utilizing Subcontractors (“IBM’s Subcontractor Proposal”), IBM shall inform AMO whether or not (i) the proposed Subcontractor is to be authorized to further subcontract responsibilities under IBM’s agreement with AMO and (ii) in the

 

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event the proposed Subcontractor is to be so authorized, to what extent an AMO-approved Subcontractor shall be allowed to further subcontract any of the Covered Services. IBM is and will remain responsible for Subcontractors to the same extent as if IBM performed such obligations. IBM’s Subcontractor Proposal shall also include a list of (a) the subcontractor(s) containing the firm name(s); (b) a description of the work to be subcontracted; (c) an explanation of why that work is to be subcontracted; and (d) descriptive information about each proposed Subcontractor’s ability to perform the work. Any AMO-approved Subcontractor from IBM’s Subcontractor Proposal will be required to adhere to the standards, policies and procedures in effect between IBM and AMO. AMO shall inform IBM in writing of AMO’s decision in response to each IBM’s Subcontractor Proposal within ten (10) days of AMO’s receipt of such Proposal.

 

  (3) IBM agrees to utilize those Subcontractors as listed in Schedule H (Pre-Approved Subcontractors) in accordance with the description therein of the services that they are pre-approved to provide (the “Pre-Approved Subcontractors”). The Parties acknowledge and agree that the Pre-Approved Subcontractors, including without limitation the global data network and telecommunications providers, are an integral and material part of the Covered Services hereunder. Accordingly, IBM agrees to provide AMO with prior written notice as soon as reasonably possible. Any replacement of a Pre-Approved Subcontractor shall be with a substantially-similar subcontractor acceptable to AMO in AMO’s sole discretion. IBM shall not replace any Pre-Approved Subcontractor with another subcontractor prior to obtaining AMO’s written approval designating such replacement as a Pre-Approved Subcontractor.

 

  (4) No subcontracting shall release IBM from responsibility for its obligations under this Agreement. IBM shall be responsible for each of its Subcontractors, to the same extent as if they were IBM employees, including for compliance with the terms of this Agreement. IBM shall be responsible for all payments to its Subcontractors. Prior to the performance of any Covered Services by any Subcontractor, such Subcontractor shall have entered into a nondisclosure agreement with IBM that protects the Confidential Information of AMO and that contains provisions at least as stringent as those set forth in Article 21.

 

  (5) IBM shall promptly pay for all services, materials, equipment and labor provided by its Subcontractors and used by IBM in providing the Covered Services pursuant to the terms of IBM’s contract with such subcontractors and shall keep the AMO Entities’ premises free of all liens connected with any failure to pay for such services, materials, equipment and labor.

12.05 Conduct of IBM Personnel.

While at the AMO Service Locations, IBM and IBM Staff shall (1) comply with the requests, standard rules and regulations of AMO regarding safety, health, security, personal and professional conduct generally applicable to such AMO Service Locations as communicated by AMO from time to time in writing and (2) otherwise conduct themselves in a businesslike

 

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manner. Prior to the performance of any Covered Services by any of the Key Employees, Project Staff or IBM Staff, such individual or entity shall have executed a nondisclosure agreement with IBM that protects the Confidential Information of AMO and that contains provisions at least as stringent as those set forth in Article 21. IBM is and will remain responsible for all IBM Staff to the same extent as if IBM performed such obligations. Upon receipt of notice from AMO that a particular member of the Project Staff is not conducting himself or herself in accordance with this Section, IBM shall promptly (a) investigate the matter and take appropriate action which may include (i) removing the applicable person from the Project Staff and providing AMO with prompt notice of such removal and (ii) replacing the applicable person with a similarly qualified individual or (b) take other appropriate disciplinary action to prevent a recurrence. If there are repeat violations of this Section by a particular member of the Project Staff, IBM shall promptly remove the individual from the Project Staff as set forth above.

12.06 Non-Competition.

IBM shall not assign a IBM Key Employee or member of the Project Staff (who is primarily dedicated to the AMO account, except those providing help desk services) to the account of any AMO Competitor without AMO’s prior written consent (1) while such IBM Key Employee or member of the Project Staff, as the case may be, is assigned to the AMO account and (2) for a period of *** following the date that such IBM Key Employee or member of the Project Staff, as the case may be, is removed from, or ceases to provide services in connection with, the AMO account. The Parties agree that the inadvertent use and/or disclosure of the Confidential Information of AMO in such circumstances is possible and that because of the confidential and sensitive nature of such Confidential Information and because the use and/or disclosure of, or even the appearance of the use and/or disclosure of, such Confidential Information in certain circumstances may cause irreparable damage to the AMO Entities and their reputation, or to customers of the AMO Entities, the foregoing restrictions are deemed reasonable.

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