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EYE » Topics » TRANSITION

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

TRANSITION

4.01 Transition Services.

 

  (a) IBM shall perform the functions and services set forth in the Transition Plan necessary to accomplish the transition of AMO’s Designated Services to IBM (the “Transition Services”) on or before November 30, 2007, (the “Transition Date”). The Transition Services shall be performed in accordance with the Transition Plan set forth in Schedule D (Transition) and using IBM’s commercially reasonable best efforts to minimize disruption to the AMO Entities’ businesses. IBM shall designate an individual for each of the AMO facilities and functions being transitioned, as applicable, in accordance with this Agreement who shall be responsible for managing and implementing the Transition Services with respect to such functions or services. Until the completion of the applicable Transition Services, each such individual shall review with the AMO Manager the status of the Transition Services for which that individual is responsible as often as may be reasonably requested by the AMO Manager.

 

  (b) The Transition Services will be completed in phases in accordance with the specific milestones set forth in the Transition Plan, and AMO shall have the right to test and reject such portions of the Services in accordance with the acceptance/rejection periods of subsection (c) below. IBM shall cooperate and lend all reasonable assistance to AMO in its testing.

 

  (c)

IBM will notify AMO when the Transition Acceptance Criteria for a Transition Deliverable or Transition Milestone has been met, and AMO shall have the opportunity, as set forth in the Transition Plan, to evaluate or test any Transition Deliverable or Transition Milestone set forth in Schedule D (Transition). If during the established period for testing of Transition Deliverable or the applicable Services, AMO believes the Transition Deliverable or the applicable Services fail to conform to the Transition Acceptance Criteria, AMO shall notify IBM of such failures in writing, describing in reasonable detail as to the reasons for such belief and the revisions AMO requests to be made, and IBM shall consider AMO’s request for such revisions and, as soon as reasonably feasible, but in no event more than ten (10) business days after receipt of such notice,

 

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complete such revisions as agreed to by IBM, and redeliver the Transition Deliverable or modify the applicable Services, and the Transition Deliverable or Transition Milestone will be deemed to be met, subject to the Dispute Resolution Process. Any extensions to the Transition Schedule due to the Services’ failure to conform to the Transition Acceptance Criteria shall be in accordance with Section 4.02(2) and the commencement date for Charges shall be deferred in accordance with the provisions of Section 4.03. In connection with its testing of Services under Section 4.01, AMO shall not (a) unreasonably withhold its acceptance of transitioned Services or (b) specify unreasonable defects or non-conformities.

4.02 Extensions to the Transition Schedule.

 

  (1) To the extent the Transition Schedule is delayed at the request of AMO or as a result of actions or omissions of AMO, AMO Agents or AMO Entities or as a result of AMO’s Regulatory Requirements, then (a) IBM shall extend the Transition Schedule for a period of time equal to the duration of such delay, (b) the Initial Agreement Expiration Date shall be modified by adding an equivalent number of days to such Initial Agreement Expiration Date according to the number of days the Transition Schedule is so extended, and (c) IBM shall invoice and AMO shall pay to IBM, both pursuant to Article 19, *** IBM incurs with so extending the Transition Schedule.

 

  (2) Upon notice from AMO to IBM that AMO desires to extend the Transition Schedule as a result of delays caused by IBM or IBM Staff or upon any failure of the Services to conform to their applicable specifications as set forth in Section 4.01(c), (a) IBM shall extend the Transition Schedule for the period of time so requested by AMO, and (b) in case the extension of the Transition Schedule results in failure of IBM to meet a Transition Milestone, Charges shall be determined as provided in Section 4.03.

 

  (3) In the event AMO and IBM mutually agree to extend the Transition Schedule as a result of delays on the part of both Parties, the Steering Committee shall determine an appropriate sharing of costs, if any, that each Party incurs as a result of the extension and the partial or total deferral of Charges in case Transition Milestones are not met as a result of the extension.

 

  (4) In the event either Party incurs costs in connection with the extension of the Transition Schedule for which the other Party will be responsible pursuant to this Section, the Party incurring the costs shall be obligated to use all commercially reasonable efforts to minimize such costs.

4.03 Transition Milestones.

If IBM fails to achieve any Transition Milestones by the completion dates therefor set forth in Schedule D (Transition), and the Transition Schedule has been extended for all or part of the Services in accordance with Section 4.02(2), all *** for the period during which the Transition Schedule has been so extended.

 

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"TRANSITION" elsewhere:

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