This excerpt taken from the GPS 10-Q filed Jun 9, 2009.
30. Remedy Waiver
This Agreement utilizes a number of interim remedies (including service level remedies, dispute resolution processes, payment withholds, and credit assessment mechanisms) to assist the Parties in effectively addressing performance issues that may arise during the Term. Gap deems the various remedies as essential tools to its management of this Agreement. Nevertheless, Suppliers effective ongoing performance is the critical behavior such remedies are designed to achieve.
Consequently, recognizing that circumstances may arise in which the imposition of the interim remedies as structured may not fairly reflect corrective and other efforts made by Supplier, subject to Section 43 (Waiver), Gaps Chief Information Officer, may, in such individuals sole discretion waive, in an individual occurrence, Gaps right to use, or collect a credit resulting from, such interim remedies. Factors that will be considered by Gaps Chief Information Officer in assessing whether to waive an interim remedy include: (1) Suppliers proactive involvement in identifying a problem before operational impacts are manifested; (2) the timing, quality, and accuracy of communications from Supplier relating to a problem; (3) the speed with which corrective actions are taken and the problem is fixed; (4) the quality of Suppliers root cause analysis and the likelihood that appropriate steps have been taken to prevent a reoccurrence of the problem; (5) the quality of Suppliers overall performance at the time the remedy right accrues and during the Term; and (6) the impact of other causal factors, including Gaps actions or inaction relating to the problem.
Any waiver under this Section must be in writing, expressly state that it is a waiver under this Section, and be signed by Gaps Chief Information Officer and the Gap Infrastructure Partnership Executive.
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