TO
REALLOCATE OR REPRIORITIZE ACCENTURE RESOURCES;
5
(3)
ACTS OR OMISSIONS OF HAWAIIAN TELCOM THIRD
PARTY VENDORS (WHICH THE PARTIES AGREE INCLUDES THE FAILURE OF A HAWAIIAN TELCOM
THIRD PARTY VENDOR TO COOPERATE WITH ACCENTURE), EXCEPT TO THE EXTENT SUCH ACTS
OR OMISSIONS ARE DIRECTED BY ACCENTURE;
(4)
HAWAIIAN TELCOM'S FAILURE TO OBTAIN
REQUIRED CONSENTS WHICH HAWAIIAN TELCOM IS OBLIGATED TO SECURE;
(5)
ANY MATTER CONSTITUTING A FORCE MAJEURE
EVENT; OR
(6)
THE APPLICABILITY OF ANY OTHER PROVISION OF
THIS AGREEMENT THAT EXPRESSLY PROVIDES FOR RELIEF FROM NONPERFORMANCE OR SERVICE
LEVELS IN ACCORDANCE WITH SUCH PROVISION;
(II)
ACCENTURE PROVIDES HAWAIIAN TELCOM WITH
REASONABLE WRITTEN NOTICE PROMPTLY UPON BECOMING AWARE OF THE ADVERSE IMPACT THE
POSSIBLE EXCUSE HAS OR IS LIKELY TO HAVE ON ACCENTURE'S ABILITY TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE SPECIFIC OBLIGATIONS WHICH ARE AT RISK;
PROVIDED THAT A DELAY IN PROVIDING HAWAIIAN TELCOM WITH SUCH NOTICE SHALL NOT
OPERATE TO DENY ACCENTURE THE EXCUSE PROVIDED BY THIS SECTION 3.8(C) EXCEPT TO
THE EXTENT SUCH DELAY PREJUDICES HAWAIIAN TELCOM'S ABILITY TO CURE THE POSSIBLE
EXCUSE; AND
(III)
ACCENTURE USES REASONABLE EFFORTS TO PERFORM
NOTWITHSTANDING (EXCEPT TO THE EXTENT THAT HAWAIIAN TELCOM DIRECTS ACCENTURE
OTHERWISE IN WRITING), IN WHICH CASE HAWAIIAN TELCOM SHALL COMPENSATE ACCENTURE
FOR ITS REASONABLE INCREMENTAL OUT-OF-POCKET EXPENSES INCURRED IN MAKING THE
EFFORTS UNDER SECTION 3.8(C)(III), IF SUCH FAILURE TO PERFORM IS A ONE-TIME OR
NON-RECURRING EVENT.
HOWEVER, IF SUCH FAILURE TO PERFORM OCCURS ON A RECURRING
BASIS OR WHERE THE TOTAL COSTS AND EXPENSES INCURRED UNDER THIS PROVISION EXCEED
$100,000.00, ACCENTURE'S PERFORMANCE OF SUCH ACTIVITIES SHALL BE DEEMED TO
CONSTITUTE NEW SERVICES FOR WHICH ACCENTURE SHALL BE EQUITABLY COMPENSATED
PURSUANT TO ARTICLE IV OF THIS AGREEMENT, PROVIDED THAT, WITH RESPECT TO
ACCENTURE'S PERFORMANCE OF HAWAIIAN TELCOM'S OBLIGATIONS, ACCENTURE SO NOTIFIES
HAWAIIAN TELCOM IN WRITING IN ADVANCE OF INCURRING SUCH COSTS (E.G., HAWAIIAN
TELCOM WILL NOT BE RESPONSIBLE FOR PAYMENT FOR ANY CHARGES WITH RESPECT TO
ACCENTURE'S PERFORMANCE OF HAWAIIAN TELCOM'S OBLIGATIONS, OTHER THAN THE
OUT-OF-POCKET EXPENSES REFERRED TO ABOVE, AND ACCENTURE IS NOT OBLIGATED TO
PERFORM ANY SUCH OBLIGATION, UNLESS AND UNTIL THE PARTIES ENTER INTO A FORMAL
CONTRACT CHANGE).
Accenture acknowledges that Hawaiian Telcom may rectify (or cause to be
rectified) a Possible Excuse, in which case Accenture will not be entitled to
any further excuse beyond that to which it became previously entitled under this
Section 3.8(c).
Hawaiian Telcom acknowledges that its rectifying (or causing to
be rectified) such a Possible Excuse shall not necessarily mean that Accenture
shall be able to resume full performance simultaneously, it being agreed that
Accenture shall resume full performance as soon as reasonably possible and shall
use Reasonable Efforts to minimize any resulting delay.
After Accenture resumes
full performance, Accenture shall not be entitled to any further excuse beyond
that to which it became previously entitled under this Section 3.8(c).
6
Notwithstanding any provision of this Agreement to the contrary, under no
circumstances shall Accenture be obligated to perform any of Hawaiian Telcom's