Advanced Medical Optics (EYE)

SOFTWARE AND PROPRIETARY RIGHTS

14.01 AMO Software.

AMO hereby grants to IBM a non-exclusive, non-transferable, limited right to have access to and Use of solely to provide the Covered Services: (1) the AMO Proprietary Software, (2) to the extent permissible under the applicable third party agreements, the AMO Third Party Software and (3) to the extent permissible under the applicable third party agreements, any Related Documentation in AMO’s possession on or after the Effective Date. IBM may, to the extent permissible under the applicable third party agreements, sublicense to IBM Staff the right to have access to and Use the AMO Software solely to provide those services that such IBM Staff are responsible for providing to IBM with respect to this Agreement. To the extent that AMO is unable to grant the rights needed under this Section as required to perform the Services, the Parties will develop a workaround, and if the creation or use of such workaround requires 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 create and/or use such workaround.

14.02 IBM Software.

IBM shall provide AMO and the AMO Controlled Affiliates with a non-exclusive, non-transferable (except as set forth in Section 30.01), limited right to have access to and use of during the Term and the Termination Assistance Period solely in its business operations to the extent necessary or expedient to receive the Covered Services: (1) the IBM Proprietary Software and (2) to the extent permissible under the applicable third party agreements, the IBM Third Party Software being used to provide the Covered Services. IBM shall provide the other AMO Entities and the Authorized Users with a non-exclusive, non-transferable (except as set forth in Section 30.01), limited right to have access to and use (as end-users of the Systems) during the Term and the Termination Assistance Period solely in connection with AMO’s or any AMO Affiliates’ business operations to the extent necessary to gain the full benefit of the Covered Services: (1) the IBM Proprietary Software and (2) to the extent permissible under the applicable third party agreements, the IBM Third Party Software being used to provide the Covered Services. Excluding all IBM Software expressly identified in the SOW (which is hereby approved by AMO for use in performing the Covered Services as indicated in the SOW) and IBM Software used at a IBM Service Location or IBM Software that is widely used by IBM with its other customers, AMO shall have the right to approve any IBM Software prior to IBM’s use of such IBM Software to provide the Covered Services. Upon AMO’s request, IBM shall provide AMO with a list of all IBM Proprietary Software and all IBM Third Party Software being used to provide the Covered Services as of the date of such request.

14.03 IBM Tools.

IBM shall provide AMO and the AMO Controlled Affiliates with access to and use of the Tools during the Term and the Termination Assistance Period solely in its business operations to the extent necessary or expedient to receive the Covered Services. AMO shall have the right to approve any Tools that are not widely used by IBM with its other customers prior to IBM’s use of such Tools to provide the Covered Services.

33

14.04 Developed Software.

34

14.05 Work Product.

All copyrights, literary works or other works of authorship including manuals, training materials and documentation developed or created by IBM or any IBM Staff as expressly set forth in this Agreement or the SOW specifically and exclusively for AMO, or at the written request of and specifically for any of the AMO Entities pursuant to a project or the Change Control Procedures under this Agreement, but excluding Developed IBM Software and excluding any IBM Preexisting IP incorporated into any of the foregoing (collectively herein referred to as “Work Product”) shall be exclusively owned by AMO. AMO shall have all right, title and interest, including worldwide ownership of copyright, in and to the Work Product and all copies made from them. To the extent any of the Work Product is not deemed a “work for hire” by operation of law, IBM hereby irrevocably assigns, transfers and conveys, and shall cause IBM Staff to assign, transfer and convey, to AMO without further consideration all of its or their right, title and interest in and to such Work Product, including all rights of trade secret, copyright, patent and other proprietary rights in and to such materials. IBM acknowledges, and shall cause IBM Staff to acknowledge, that AMO and the successors and permitted assigns of AMO shall have the right to obtain and hold in their own name any rights in and to such Work Product. IBM agrees to execute, and shall cause IBM Staff to execute, any documents or take any other actions as may reasonably be necessary, or as AMO may reasonably request, at AMO’s expense, to perfect AMO’s ownership of any such Work Product. Nothing in either Section 14.04 or 14.05 will be interpreted or construed to assign to AMO (and, except as licensed to the AMO Entities, AMO Agents and Authorized Users under this Agreement, IBM reserves all right, title and interest that IBM may have or acquire in) any proprietary software, tools, utilities, methodologies, processes, documentation and other items (i) that are developed by or on behalf of IBM in performance of the Covered Services (including all modifications, enhancements, and derivative works of the IBM Software and/or Tools made by or on behalf of AMO under Sections 14.02 and/or 14.03) excluding all Work Product, Developed AMO Software and any AMO Data or other materials or information provided by AMO to IBM for use in connection with such development (“IBM Developed IP”), or (ii) that was created or acquired by IBM prior to the Effective Date, or is developed or acquired by IBM outside the scope of this Agreement (and without the use of AMO Confidential Information), and inserted or incorporated within any Work Product or Developed IBM Software with the prior written consent of AMO (“IBM Preexisting IP”). To the extent: (i) any Work Product or Developed IBM Software contains any IBM Preexisting IP, or (ii) IBM Developed IP has been provided to AMO under this Agreement or has been used to provide Covered Services to AMO under this Agreement, or (iii) use of any Work Product or Developed IBM Software requires any IBM Developed IP or IBM Preexisting IP, IBM grants to AMO a royalty-free, worldwide, non-exclusive license to

35

such IBM Developed IP or IBM Preexisting IP, during the Term and the Termination Assistance Period solely in connection with internal use of the Work Product, Developed IBM Software or IBM Developed IP that is actually provided to AMO under this Agreement or is actually used to provide Covered Services to AMO under this Agreement. AMO hereby grants IBM an irrevocable, fully paid-up, non-exclusive, worldwide license to use the Work Product solely to provide the Services during the Term and the Termination Assistance Period, which includes the right to sublicense and otherwise permit third parties to do any of the foregoing.

14.06 Changes and Upgrades to Software.

Except as may be approved in writing by AMO, IBM shall not make any changes or modifications to the Software used to provide the Covered Services that would adversely alter the functionality of the Systems or degrade the performance of the Systems, except as may be necessary on a temporary basis to maintain the continuity of the Covered Services.

Subject to the Change Control Procedures, IBM shall, at AMO’s option, and with AMO’s prior written approval, install for AMO in connection with the Covered Services any upgrade, modification or enhancement to the Systems at the then-current level at the time such upgrade, modification or enhancement is available.

14.07 Acceptance.

For each Covered Service and any Developed Software or Work Product deliverable to be provided by IBM hereunder, and any upgrade, modification or enhancement to the Systems, AMO shall have the right to review and to perform acceptance testing of each such deliverable. IBM shall deliver to AMO each such deliverable not less than thirty (30) days prior to the date such deliverable is scheduled to be placed into productive use by or for the benefit of AMO, and AMO shall complete its review and testing within such period, provided that AMO reserves the right to extend the test period. IBM shall also provide AMO with such assistance as AMO may reasonably require to conduct acceptance testing of applicable deliverables.

If during the above period for acceptance review, the deliverable contains defects or fails to conform to the applicable specifications for such deliverable, AMO shall provide IBM notice of all such defects and/or failures (collectively, “Errors”). Unless otherwise agreed, IBM shall, as soon as reasonably feasible, but in no event more than thirty (30) days after receipt of such notice), correct the Errors and redeliver the deliverable to AMO. AMO shall thereupon have thirty (30) days within which to reconduct acceptance review and testing to determine whether the Errors previously identified have been corrected and whether any other Errors have been introduced.

In the event IBM fails to timely deliver or redeliver a deliverable for acceptance review and testing, or if after AMO timely notifies IBM of one or more Errors, IBM does not timely correct same so that the deliverable is capable of functioning in accordance with the agreed upon standards, (i) AMO shall not be obligated to pay for such Developed Software, Work Product and/or for the portion of the Charges associated with IBM’s and/or IBM Staff’s preparation of a deliverable as determined by the Steering Committee in good faith, and (ii) for deliverables that have a material impact on AMO’s business or systems, AMO may, upon the second or any subsequent rejection and notwithstanding the limitations set forth in Section 3.07, insource or procure a third party to provide such deliverables.

36