RETAINS THE FINANCIAL RESPONSIBILITY FOR THE SERVICES PROVIDED UNDER
THIS AGREEMENT TO ANY MICHAELS' AFFILIATES AND AUTHORIZED USERS AND TO CAUSE
EACH MICHAELS' AFFILIATES AND AUTHORIZED USERS RECEIVING THE SERVICES OR
BENEFITS OF LICENSE GRANTS UNDER THIS AGREEMENT TO COMPLY WITH ALL OBLIGATIONS
OF MICHAELS AS THEY APPLY TO SUCH SERVICES AND LICENSES.
(E)
PROJECTS; ONGOING PROJECTS.
SUPPLIER SHALL PERFORM THE PROJECTS
AS DIRECTED BY MICHAELS FROM TIME TO TIME DURING THE TERM.
A LIST OF PROJECTS
THAT ARE ONGOING OR APPROVED BY MICHAELS AS OF THE EFFECTIVE DATE, AND THAT
SUPPLIER SHALL ASSUME RESPONSIBILITY FOR AS OF THE EFFECTIVE DATE, IS SET FORTH
ON EXHIBIT 16 ("CURRENT AND PLANNED PROJECTS").
THE CURRENT AND PLANNED
PROJECTS ARE ALL WITHIN THE SCOPE OF THE SERVICES AND SHALL BE PROVIDED BY USING
A COMBINATION OF THE BASE CHARGES, FLEX POOL AND MICHAELS RESOURCES.
ALL
CURRENT AND PLANNED PROJECTS SHALL BE:
(I) COMPLETED IN ACCORDANCE WITH
MICHAELS' PROJECT MANAGEMENT AND DEVELOPMENT PRACTICES IN PLACE AS OF THE
EFFECTIVE DATE AS SET FORTH IN EXHIBIT 16 (AS MAY BE AMENDED FROM TIME TO TIME
IN ACCORDANCE WITH THE CHANGE MANAGEMENT PROCESS AS APPLICABLE); (II) COMPLETED
BY THE DATE OR DATES ESTABLISHED IN THE SCHEDULE FOR THE RELEVANT CURRENT AND
PLANNED PROJECT; AND (III) SUBJECT TO MILESTONES, IF ANY, ESTABLISHED IN THE
SCHEDULE FOR THE RELEVANT CURRENT AND PLANNED PROJECT.
ANY CHANGE FOR ANY OF
THE CURRENT AND PLANNED PROJECTS SHALL BE AGREED UPON BY THE PARTIES IN
ACCORDANCE WITH THE CHANGE MANAGEMENT PROCESS.
(F)
RESOURCES.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS
AGREEMENT OR AN AGREED STATEMENT OF WORK, SUPPLIER SHALL PROVIDE ALL FACILITIES,
ASSETS, AND RESOURCES (INCLUDING PERSONNEL, EQUIPMENT, AND SOFTWARE) NECESSARY
TO PROVIDE THE SERVICES AND OTHERWISE MEET ITS OBLIGATIONS UNDER THIS AGREEMENT
OR AN AGREED STATEMENT OF WORK.
SUPPLIER SHALL PROVIDE TO MICHAELS, AT NO COST,
TWO LEAN RESOURCES ONSITE AND ONE LEAN RESOURCE OFFSHORE WHO WILL BE DEDICATED
FOR DRIVING BUSINESS PROCESS EFFICIENCY.
4
4.3
Savings Clause.
Michaels recognizes that Supplier's performance of
the Services may be dependent on Michaels 's (including Michaels Agents)
performance of certain related tasks.
All such tasks are set forth in this
Agreement and/or the Statement of Work applicable to such Services ("Retained
Responsibilities").
Michaels shall not be responsible for, and Supplier's
performance shall be deemed not to be dependent upon, the performance of any
other related tasks under this Agreement.
Supplier will be excused from the
failure to perform an obligation hereunder or the failure to achieve a Milestone
or Service Level, to the extent that such failure is directly caused by
Michaels' failure to perform a Retained Responsibility; provided that:
(A)
SUPPLIER PROMPTLY PROVIDES MICHAELS WITH ADVANCE NOTICE IN WRITING
IDENTIFYING IN DETAIL THE RETAINED RESPONSIBILITY IN QUESTION AND THE FAILURE BY
MICHAELS FOR WHICH MICHAELS IS RESPONSIBLE TO PERFORM AND THE RELEVANT SUPPLIER
OBLIGATION OR SERVICE LEVEL THAT IS AT RISK; AND
(B)
SUPPLIER CONTINUES TO USE COMMERCIALLY REASONABLE EFFORTS TO
PERFORM ITS OBLIGATION NOTWITHSTANDING MICHAELS' NON-PERFORMANCE OF THE RETAINED
RESPONSIBILITY;