DESCRIBED UNDER SECTION 10
HEREOF.
G.
NEW SERVICES.
FROM TIME TO TIME, CUSTOMER MAY REQUEST THAT
PROVIDER FURNISH ADDITIONAL SERVICES TO CUSTOMER THAT ARE NOT WITHIN THE SCOPE
OF THE SERVICES ("NEW SERVICES").
PROVIDER WILL DISCUSS WITH CUSTOMER SUCH
REQUEST AND THE RAMIFICATIONS OF SUCH ADDITIONAL SERVICES ON THE EXISTING
SERVICES, BUT WILL NOT BE OBLIGATED TO PROVIDE SUCH ADDITIONAL SERVICES.
SUCH
REQUESTS SHALL BE ADDRESSED THROUGH THE CHANGE CONTROL PROCEDURE DESCRIBED IN
SECTION 19 HEREOF.
CUSTOMER SHALL BEAR ALL COSTS AGREED IN ADVANCE BETWEEN THE
PARTIES AND INCURRED BY PROVIDER ON ACCOUNT OF TRANSITION OR MIGRATION OF NEW
SERVICES FROM CUSTOMER TO PROVIDER.
H.
SERVICES NOT TO BE WITHHELD; PROVIDER RELIEF.
EXCEPT AS PROVIDED
IN SECTION 8.2 AND 21.1 HEREOF (IT BEING UNDERSTOOD THAT FORCE MAJEURE WILL NOT
RELIEVE PROVIDER OF ITS RESPONSIBILITY TO PROVIDE THE SERVICES SET FORTH IN THE
BCP/DRP PLANS), PROVIDER SHALL NOT VOLUNTARILY REFUSE TO PROVIDE ALL OR ANY
PORTION OF THE SERVICES IN VIOLATION OR BREACH OF THE TERMS OF THE AGREEMENT OR
ANY RELATED PSA.
PROVIDER SHALL BE RELIEVED FROM ITS OBLIGATION TO PERFORM ANY
SERVICES AND ITS OBLIGATIONS TO PAY ANY SERVICE CREDIT UNDER A PSA TO THE EXTENT
IT IS UNABLE TO PERFORM ANY SERVICES OR TO PERFORM IN ACCORDANCE WITH ANY
APPLICABLE PERFORMANCE STANDARD AS A RESULT OF CUSTOMER'S FAILURE TO PERFORM ITS
OBLIGATIONS UNDER SUCH PSA.
NOTWITHSTANDING THE DISPUTE RESOLUTION PROVISIONS
SET FORTH IN SECTION 21.L, IF PROVIDER BREACHES THIS COVENANT, CUSTOMER SHALL BE
ENTITLED TO APPLY TO A COURT OF COMPETENT JURISDICTION FOR SPECIFIC PERFORMANCE
BY PROVIDER OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE RELATED PSAS WITHOUT
THE NECESSITY OF POSTING ANY BOND.
2.
CHARGES.
A.
GENERALLY.
NOTWITHSTANDING ANY PROVISION RELATED TO FEES AND
CHARGES IN A PSA TO THE CONTRARY, AS CONSIDERATION FOR THE PROVISION OF THE
SERVICES, CUSTOMER WILL PAY TO PROVIDER THE CHARGES CALCULATED AS SET FORTH IN
THIS SECTION 2 (THE "CHARGES").
THE CHARGES IN EFFECT IMMEDIATELY PRIOR TO THE
EXECUTION DATE SHALL BE REFERRED TO AS THE "BASELINE CHARGES".
FOR EXISTING
PSAS, THE BASELINE CHARGES
3
AND THE CHARGES FOR THE INITIAL CONTRACT YEAR (OR PART THEREOF) SHALL BE AS SET
FORTH ON EXHIBIT L.
FOR PSAS EXECUTED AFTER THE EXECUTION DATE, THE BASELINE
CHARGES SHALL BE SET FORTH IN EACH SUCH PSA.
THE CHARGES SHALL BE ADJUSTED
ANNUALLY TO REFLECT CHANGES IN PROVIDER'S BASE COSTS AND TO REFLECT SCHEDULED
DISCOUNTS FROM THE BASELINE CHARGES PURSUANT TO THE FOLLOWING FORMULA:
New Charges = Baseline Charges * Discount Factor * Cost Factor
B.
DISCOUNT FACTOR.
FOR THE PERIODS INDICATED, THE "DISCOUNT
FACTOR" SHALL MEAN AND BE AS FOLLOWS:
Period
Discount Factor
from the Execution Date through the first anniversary of the Trigger Date (as
defined below)
**
from the first anniversary of the Trigger Date through the second anniversary of
the Trigger Date
**
from the second anniversary of the Trigger Date through the third anniversary of
the Trigger Date
**
"Cost Factor" means and shall be calculated as follows:
Y(n) Base