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EYE » Topics » SERVICE LOCATIONS

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

SERVICE LOCATIONS

10.01 Service Locations.

The Covered Services shall be provided (1) to the AMO Service Locations, (2) from the Designated IBM Service Locations and (3) from the Additional Designated IBM Service Locations; provided, however, that the provision of Covered Services from an Additional Designated IBM Service Location must be approved in writing by AMO in its reasonable discretion. Unless mutually agreed otherwise by the Parties, any documented, actual incremental expenses incurred by AMO as a result of a relocation to, or use of, an Additional Designated IBM Service Location shall at AMO’s election, be paid by IBM or reimbursed to AMO by IBM. IBM Staff located at an AMO Service Location shall not provide or market services to any AMO Competitors.

10.02 Safety and Security Procedures.

 

  (1)

IBM shall maintain and enforce at the Service Locations safety and security procedures that are at least equal to the highest of the following: (1) with respect to the Designated IBM Service Locations only, the procedures of the applicable Designated IBM Service Location immediately prior to the Effective Date (provided that in no case shall such procedures be less than applicable and generally accepted industry standards for locations similar to such Designated IBM Service Locations), as reasonably amended by AMO pursuant to the Change Control Procedures from time to time during the Term; (2) with respect to AMO

 

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Service Locations only, the procedures in effect at such location immediately prior to the Effective Date and as amended by AMO pursuant to the Change Control Procedures from time to time during the Term; and (3) any higher standard otherwise agreed upon by the Parties in writing subject to the Change Control Procedures.

 

  (2) IBM shall exercise due care and diligence in the performance of its obligations under this Agreement. IBM is responsible for the safe performance of the Covered Services, and shall ensure, with the reasonably necessary cooperation of AMO, AMO Entities and AMO Agents, that the Covered Services are performed in accordance with such safety and environmental practices and procedures as are necessary, appropriate and customary in connection with the Covered Services, and shall implement and maintain at all times such safety and environmental practices and procedures, taking all reasonable precautions to protect the personnel and property of the AMO Entities as well as the personnel and property of IBM and third parties in connection with the provision of the Covered Services. IBM shall be responsible for safety and environmental precautions and procedures used by IBM in connection with the Covered Services, and the AMO Entities shall not be responsible for IBM’s failure to employ such safety or environmental precautions and procedures; provided, however, that the AMO Entities shall be responsible for all safety and environmental conditions for all AMO Service Locations under their respective control, and IBM shall only have responsibility with respect to AMO Service Locations as set forth in subsection (3) below.

 

  (3) Prior to the commencement of the Covered Services, AMO shall provide IBM with, and IBM will become familiar with, the work, safety and environmental written guidelines established by AMO for the AMO Service Locations where the Covered Services are to be performed. In its performance of the Covered Services under the Agreement, IBM shall comply in all respects with (a) AMO’s written information security policy, (b) the written work, safety and environmental guidelines established by AMO or the applicable AMO Controlled Affiliates for the AMO Service Locations at which the Covered Services are being performed, (c) with the requirements of AMO’s written drug and alcohol policy, (d) with the requirements of AMO’s written business practices and ethical standards, and all other written policies and procedures, each of which is contained in the AMO Employee Handbook, a copy of which shall be provided to IBM, as may be updated from time to time. IBM shall comply in all respects with all updates to the foregoing requirements, guidelines and policies as each is updated from time to time by AMO and the applicable AMO Controlled Affiliates effective upon receipt by IBM of such updates, provided that if there are any material changes required, additional charges may result.

10.03 Systems and Data Security.

 

  (1)

IBM shall comply with during the Term policies and safeguards against the (a) unauthorized alteration or use of, or access to, the Systems, or (b) the destruction, loss, alteration or unauthorized disclosure or use of the AMO Data in the

 

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possession or control of IBM or that is otherwise available to IBM (the “Data and Systems Safeguards”), as set forth in the Information Security Controls (ISeC) Document (to be provided by AMO within 45 days following the Effective Date, provided that if such ISeC Document materially alters the scope of the Designated Services, the Steering Committee shall determine in good faith AMO’s reimbursement of IBM’s documented, reasonable costs that are incurred by IBM to implement such additional Data and System Safeguards), the SOW, and such additional data and systems safeguards as provided by AMO from time to time. If such additional safeguards require IBM to use additional resources (as determined by the Steering Committee), then AMO shall pay IBM for the documented, reasonable costs that are incurred by IBM to implement such additional safeguards. With respect to the Covered Services, the Data and Systems Safeguards shall be implemented and enforced at each AMO Service Location, Designated IBM Service Location and Additional Designated IBM Service Location, as the case may be, and such Data and Systems Safeguards shall be no less rigorous than (i) those data security practices defined in the AMO Employee Handbook that may be in effect from time to time, ; provided, however, that AMO shall be responsible for identifying, interpreting, and informing IBM of safeguard requirements corresponding to the laws, regulations and other governmental regulatory requirements regarding data security that are specific to medical data and medical devices to the extent such laws, regulations and requirements are applicable to AMO or the development, manufacturing, and/or marketing of medical devices for the eye and contract lens care products worldwide (“Industry Specific Data Security Laws”). In the event IBM intends to implement a change to the Data and Systems Safeguards (other than pursuant to AMO’s request), IBM shall notify AMO and, upon AMO’s approval with respect to those changes that would adversely impact the Covered Services or the security of AMO Data, implement such change. In the event IBM discovers or IBM Staff discover or is or are notified of a breach or potential breach of security relating to the AMO Data, IBM shall immediately (1) notify the AMO Manager of such breach or potential breach and (2) if the applicable AMO Data was in the possession of IBM or IBM Staff at the time of such breach or potential breach, IBM shall (a) investigate and use commercially reasonable efforts to cure the breach or potential breach and (b) provide AMO with assurance satisfactory to AMO that such breach or potential breach will not recur.

 

  (2) IBM shall ensure that all of the IBM Staff assigned to perform the Covered Services have read, and will comply with, the Data and Systems Safeguards set forth in the ISeC Document and the SOW, as well as the provisions concerning data security practices defined in the AMO Employee Handbook.

10.04 Security Relating to IBM Staff.

IBM has established and shall maintain during the Term security procedures, reasonably acceptable to AMO, substantially in the form of ISeC Document and the SOW, to restrict access to AMO Data such that the IBM Staff providing services do not have access to AMO Data, except to the extent that such access is necessary for the performance of IBM Staff’s job functions in providing the Covered Services.

 

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10.05 Security Relating to Others.

 

  (1) If IBM provides the Covered Services to AMO from a Service Location that is also used by IBM to provide services to other IBM customers, IBM shall comply with the security procedures reasonably acceptable to AMO, substantially in the form of ISeC Document and the SOW, to restrict access in any such shared environment such that the other IBM customers do not have access to AMO Data.

 

  (2) IBM shall ensure that all of the IBM Staff assigned to perform the Covered Services have read and will comply with such security procedures.

10.06 Security Audits.

AMO and AMO Agents may, pursuant to Section 20.03 and 20.05 and at its expense, perform audits to monitor IBM’s compliance with the data and physical security procedures and the Data and Systems Safeguards in effect at the Service Locations with respect to the Covered Services and Systems as described in this Section. AMO shall provide to IBM a copy of the results, including any findings and recommendations made by AMO’s auditors, of such audits.

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