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EYE » Topics » TERMINATION ASSISTANCE

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

TERMINATION ASSISTANCE

26.01 Termination Assistance Services.

Upon AMO’s request, and regardless of the reason for the full or partial termination or expiration of this Agreement, IBM shall during the Termination Assistance Period, provide the Termination Assistance Services based on the Annual Services Charges (and the charges agreed to in writing for any Out of Scope Services) being paid by AMO at the time of such termination or expiration. If termination is by IBM in accordance with Section 25.06, then Termination Assistance Services will be provided upon payment in advance by AMO for such services. IBM’s quality and level of performance during the Termination Assistance Period shall not be degraded and, at AMO’s request, Termination Assistance Services shall be provided either to AMO or to another supplier of AMO’s choosing; provided, however, that IBM is not obligated to provide Termination Assistance Services if such Services will unreasonably and materially interfere with IBM’s ability to perform the Covered Services (unless AMO provides IBM in advance the appropriate written relief from any Covered Service or Service Level commitments). After the expiration of the Termination Assistance Period and for a period of *** thereafter, IBM shall (1) be reasonably available to answer questions from AMO regarding the Services on an “as needed” basis at IBM’s then standard billing rates, (2) deliver to AMO any remaining AMO-owned reports and documentation still in IBM’s possession, and (3) deliver to AMO, at no additional cost to AMO, a copy of the in-use version and release of the AMO Software. IBM’s assistance after the expiration of the Termination Assistance Period shall include, but not be limited to, consulting services, software configuration and reviewing all supported Application and System Software with a new service provider. In the event that AMO has selected or is contemplating the selection at a new party to provide the services contemplated under this Agreement, IBM shall provide the Termination Assistance Services to such party or parties as identified by AMO.

In all instances, to the extent IBM is utilizing agents and/or authorized subcontractors to provide the Covered Services, IBM shall ensure that such agents and/or subcontractors continue to provide the Covered Services at the same quality level during the Termination Assistance Period as provided during the Term.

26.02 Exit Rights.

Upon the End Date:

 

  (1) The rights granted to IBM and IBM Staff in Section 14.01 shall immediately terminate and IBM shall, and shall cause IBM Staff to, (i) deliver to AMO, at no cost to AMO, a current copy of the AMO Software in the form in use as of the End Date and (ii) destroy or erase all other copies of the AMO Software in IBM’s or IBM Staff’ possession. IBM shall, upon AMO’s request, certify to AMO that all such copies have been destroyed or erased.

 

  (2)

Each Party shall, and shall cause its employees, agents, subcontractors, directors and representatives to deliver to the other Party, at no cost to the other Party, all

 

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Confidential Information of the other Party, including in the case of AMO the AMO Data, and any copies thereof and all other copies of the other Party’s Confidential Information in such Party’s or its employees’, agents’, subcontractors’, directors’ or representatives’ possession. Each Party shall, upon the other Party’s request, certify to the other Party that all such Confidential Information and any copies thereof have been destroyed or returned. If requested by AMO, IBM shall deliver the AMO Data in a non-proprietary format of AMO’s designation, and AMO shall reimburse IBM for the mutually agreed costs, if any, reasonably incurred by IBM to accomplish the foregoing formatting.

 

  (3) IBM shall (i) deliver to AMO a copy of all of the (x) Developed AMO Software and (y) Work Product, in the form in use as of the End Date, and (ii) destroy or erase all other copies of the Developed AMO Software and the Work Product in IBM’s possession.

 

  (4) Upon AMO’s request, with respect to (i) any agreements for maintenance, disaster recovery services or other necessary third party services dedicated solely to AMO being used by IBM or IBM Staff to provide the Services as of the End Date (to the extent permitted therein) and (ii) any other contracts or agreements dedicated solely to AMO and used by IBM to supply the Services, to the extent permitted therein, IBM shall, and shall cause IBM Staff to, transfer or assign such agreements (or the applicable portions thereof) to AMO or its designee, at AMO’s expense, on terms and conditions acceptable to all applicable parties.

 

  (5) Upon AMO’s request, IBM shall sell to AMO or its designee (i) the IBM Equipment dedicated solely to AMO’s use and being used by IBM or IBM Staff to perform the Services as of the End Date; and (ii) any assets transferred by AMO to IBM or IBM Staff, all free and clear of all liens, security interests or other encumbrances, ***.

 

  (6) AMO shall have the right but not the obligation to assume contracts, or the applicable portions thereof, (to the extent permitted therein) for any Covered Services provided by third parties for IBM (including IBM Third Party Software) that are dedicated solely to AMO’s use and used by IBM to provide Covered Services to AMO.

 

  (7) AMO shall have the right but not the obligation to assume IBM’s leases (to the extent permitted therein) for any Equipment dedicated solely to AMO’s use and used by IBM to provide the Covered Services.

 

  (8) IBM shall perform an orderly turnover and assistance with all necessary non-proprietary data and work processes used or collected by IBM in its provision of Covered Services to AMO.

 

  (9) With respect to the agreements, contracts, and leases mentioned in items (4), (6) and (7), IBM shall use commercially reasonable efforts to obtain the right to assign to AMO such agreements, contracts, and leases (or the applicable portions thereof).

 

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