Advanced Medical Optics (EYE)

ARTICLE XVII

CONTINUED PROVISION OF SERVICES

17.01 Force Majeure.

If, and to the extent that, a Party’s performance of any of its obligations pursuant to this Agreement, other than an obligation to make timely payment of undisputed amounts owed to a Party hereunder, is prevented, hindered or delayed by fire, flood, earthquake, elements of nature or acts of God, acts of war, declared or undeclared, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each, a “Force Majeure Event”), whether or not foreseeable, and such non-performance, hindrance or delay could not have been prevented by reasonable (at such time) precautions, then the non-performing, hindered or delayed Party shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Party continues to use its diligent efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall immediately notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not excuse, limit or otherwise affect IBM’s obligation to provide either normal recovery procedures or any other disaster recovery services described in Part 4 (Disaster Recovery Services) of Schedule A (Statement of Work).

17.02 Alternate Source.

If any Force Majeure Event prevents, hinders or delays performance of the Covered Services for more than seven (7) days, AMO, notwithstanding Section 3.07, in consultation with IBM, may procure such Covered Services from an alternate source and, provided that AMO continues to pay the Charges due IBM under this Agreement, IBM shall reimburse AMO for the actual, documented, reasonable (under the circumstances in light of time frames and maintenance of continuity) payments to such alternate source for such Covered Services until such time as IBM is able to restore the Covered Services, but in no event for longer than the earlier of (a) 180 days from the start of the delay, or (b) the remaining Term. If the Force Majeure Event continues to prevent, hinder or delay performance of the Covered Services for more than thirty (30) days, then until such time that IBM is able to recommence the Covered Services, AMO may terminate this Agreement (or portion thereof) as of a date specified by AMO in a termination notice to IBM, and will pay IBM Wind-Down Costs excluding any amounts related to Equipment and Software that are rendered unusable. If the Force Majeure Event continues, or is expected to continue, to prevent, hinder or delay performance of the Covered Services for more than sixty (60) days and AMO has procured such Covered Services from an alternate source, IBM may terminate this Agreement (or portion thereof) by providing AMO with one hundred and twenty (120) days prior written notice.

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17.03 No Payment for Unperformed Services.

Except as provided in Section 17.01, nothing in this Article shall limit AMO’s obligation to pay any of the Charges due IBM under this Agreement; provided, however, that if IBM fails to provide the Covered Services in accordance with this Agreement due to the occurrence of a Force Majeure Event, and IBM is not reimbursing AMO for its procurement of such Covered Services from an alternate source as provided for in Section 17.02, the Charges shall be adjusted in a manner such that AMO is not responsible for the payment of any Charges for Covered Services that IBM fails to so provide in accordance with this Agreement.

17.04 Performed Services in Arrears.

To the extent that IBM has any rights to discontinue the Covered Services because of AMO’s unexcused non-payment of any undisputed portion(s) of the Charges, such rights shall be the same as those provided in Section 25.02(1).