Common use of Non-Commercially Available Service Provider Owned Materials Clause in Contracts

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors that are implicated by the Assistance Event and that are provided to DIR or DIR Customers in the provision of Services in furtherance of this Agreement, (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, and media related thereto), Service Provider hereby grants to DIR (or, at DIR's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Agreement or Service(s). Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its disclosed designee) to provide for the Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Service Provider shall provide Upgrades, maintenance, support, and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR and describe in detail the features, functionality, and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors that are implicated by the Assistance Event and that are provided used to DIR or DIR Customers in provide the provision of Services in furtherance of this Agreement, services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, materials and media related thereto)) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Service Provider hereby grants to DIR (or, at DIR's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Agreement or Service(s)) for which such Materials were in use. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its disclosed designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Service Provider shall provide Upgrades, maintenance, support, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, support or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR and describe in detail the features, functionality, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the services and that are provided not then commercially licensed or otherwise commercially expressly agreed by DIR in writing prior to DIR or DIR Customers in the provision first use of Services in furtherance of this Agreement, (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, and media related thereto)such Materials, Service Provider hereby grants to DIR (or, at DIR's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following for the expiration or termination duration of the term or termination of Term and the Agreement or Service(s)Termination Assistance Period. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its disclosed designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Service Provider shall provide Upgrades, maintenance, support, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, support or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR and describe in detail the features, functionality, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.. Unless DIR has otherwise agreed in advance, DIR, the DIR Customers and Entities that qualify as DIR Customers (and, to the extent applicable, their designee(s)) shall not be obligated to pay any fees or costs in connection with their receipt of the licenses and other rights contained in this

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors that are implicated by the Assistance Event and that are provided used to DIR or DIR Customers in provide the provision of Services in furtherance of this Agreement, services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, materials and media related thereto)) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Service Provider hereby grants to DIR (or, at DIR's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Agreement or Service(s)) for which such Materials were in use. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its disclosed designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Service Provider shall provide Upgrades, maintenance, support, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, support or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR and describe in detail the features, functionality, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.. Unless DIR has otherwise agreed in advance, DIR, the DIR Customers and Entities that qualify as DIR Customers (and, to the extent applicable, their designee(s)) shall not be obligated to pay any fees or costs in connection with their receipt of the licenses and other rights contained in this

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors (excluding those set forth in Exhibit 18) that are (i) implicated by the Assistance Event and that are provided Event,( ii)used to DIR or DIR Customers in provide the provision of Services in furtherance of this Agreement, (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, materials and media related thereto)) and (iii) not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by TxDOT in writing prior to the first use of such Materials, Service Provider hereby grants to DIR TxDOT (or, at DIRTxDOT's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Agreement or Service(s)) for which such Materials were in use. Such license shall be limited to the use Use of such Materials by DIR TxDOT (or, at DIRTxDOT's direction, its disclosed designee) to provide for the Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore under this Agreement. Unless DIR TxDOT has otherwise consented prior to the first use of such Materials, DIR TxDOT (or, at DIRTxDOT's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR TxDOT Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR TxDOT or such DIR TxDOT Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR TxDOT or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR TxDOT and shall not use such non-commercially available Materials to provide the Services without DIRTxDOT's prior written approval. In seeking DIRTxDOT's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR TxDOT Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIRTxDOT's request, Service Provider shall provide Upgrades, maintenance, support, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, support or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR TxDOT and describe in detail the features, functionality, functionality and cost of the substitute product. DIR TxDOT may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIRTxDOT.

Non-Commercially Available Service Provider Owned Materials. With respect to those Materials owned by Service Provider or Service Provider Affiliates or Subcontractors that are implicated by the Assistance Event and that are provided used to DIR or DIR Customers in provide the provision of Services in furtherance of this Agreement, services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, settings, configurations, materials and media related thereto)) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in writing prior to the first use of such Materials, Service Provider hereby grants to DIR (or, at DIR's direction, its disclosed designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) a fully paid-up license, to Use such Materials following the expiration or termination of the term or termination of the Agreement or Service(s)) for which such Materials were in use. Such license shall be limited to the use of such Materials by DIR (or, at DIR's direction, its disclosed designee) to provide for the DIR Customers and Entities that qualify as DIR Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefore therefor under this Agreement. Unless DIR has otherwise consented prior to the first use of such Materials, DIR (or, at DIR's direction, its disclosed designee) shall not be obligated to pay any license or transfer fees in connection with its receipt of the licenses and other rights specified above; provided that, if a DIR Contractor uses such Materials for such purpose for more than one (1) year after the expiration or termination of the Term or termination of the Service(s) for which such Materials were used, DIR or such DIR Contractor shall thereafter pay Service Provider a commercially reasonable license fee to be agreed upon by the Parties. Without limiting or altering Service Provider's obligations under Section 9.12, if Service Provider is unwilling or unable to grant DIR or its disclosed designee the license and other rights described in the preceding paragraph, Service Provider shall so notify DIR and shall not use such non-commercially available Materials to provide the Services without DIR's prior written approval. In seeking DIR's approval, Service Provider may propose alternative terms, such as a fee for such license, a limitation on the use of such Materials by DIR Contractors, or a limitation on the license period and/or the substitution of a functionally equivalent product. At DIR's request, Service Provider shall provide Upgrades, maintenance, support, support and other services for such non-commercially available Materials on reasonable commercial terms and conditions, which shall include pricing no less favorable than the pricing customarily charged to other commercial customers receiving equivalent services. If Service Provider fails to offer or provide Upgrades, maintenance, support, support or other services, Service Provider shall deliver configurations, settings, source code and object code for such Materials to the extent such materials include source code, together with the right to modify, enhance and create derivative works of such materials (provided that, in such event, the licensed Service Provider owned materials shall thereafter be provided on an "as is" basis). Notwithstanding the foregoing, during the Termination Assistance Services period, Service Provider may substitute a license for Third Party Software or Materials sufficient to perform, without additional cost, support, support or resources and at the levels of performance and efficiency required by this Agreement, the functions of such non-commercially available Materials. If it proposes to do so, Service Provider shall notify DIR and describe in detail the features, functionality, functionality and cost of the substitute product. DIR may, in its sole discretion, elect to use a different product for such purpose. In such case, Service Provider shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR. Unless DIR has otherwise agreed in advance, DIR, the DIR Customers and Entities that qualify as DIR Customers (and, to the extent applicable, their designee(s)) shall not be obligated to pay any fees or costs in connection with their receipt of the licenses and other rights contained in this Section 14.6(b). Service Provider's use of any such Materials to provide the Services shall obligate Service Provider to provide, at no additional cost, the license and other rights set forth in this Section 14.6(b) to DIR, the DIR Customers, Entities that qualify as DIR Customers and their designees.