Common use of Operating Systems and Software Applications Clause in Contracts

Operating Systems and Software Applications. Operating Systems, Applications Software and Utilities Any operating systems and utilities, i.e., compilers utilities, case tools, database managers and other applications enabling software, and any applications software and associated documentation, and utilities used by the Contractor to provide services to the Department under the Contract, but not used exclusively to provide services to the Department shall be: Readily commercially available software used without modification by the Contractor. Readily commercially available software used with modification owned by the Contractor, which the Contractor agrees to deliver the source code and updated and current documentation, including but not limited to JCL, work flow, product process, applications, and interfaces upon final acceptance and any updates thereto upon termination and to grant to the Department or its designee at no charge a perpetual, irrevocable, fully paid up license to use, reproduce, duplicate and modify the modifications and associated documentation for the sole benefit of the Department. Proprietary software that the Contractor has the right to license to the Department and in which the Contractor agrees to deliver the source code and updated and current documentation, including but not limited to JCL, work flow, product process, applications, and interfaces upon final acceptance and any updates thereto upon termination and to grant to the Department or its designee at no charge a perpetual, irrevocable, fully paid-up license to use, reproduce, duplicate and modify such software and associated documentation for the sole benefit of the Department. If the Contractor procures under the Contract a license for operating systems software or utilities to be used solely to perform services for the Department, the Contractor agrees to obtain such license in the name of the Department, if the Department is permitted to grant the Contractor the right to use such software solely to provide services to the Department during the term of the Contract. In such event, the Department agrees to grant to the Contractor, at no charge during the term of the Contract, subject to customary confidentiality and other license terms and conditions, the right to use such software solely to provide services to the Department. The license shall include, but not be limited to: All primary systems and support systems; All other system instructions for operating systems developed, designed or installed under the Contract; All data files; All user and operational manuals and other documentation; Training programs for the Department or the Department’s agents and employees; All performance-enhancing operational plans and products; and All specialized or specially modified software and specially developed programs, including utilities, software and documentation that are required for or used in the generation of systems whether obtained, developed or modified in the course of performance of the Contract or before it. This obligation is not subject to limitation in any respect, regardless of whether any part of the system or software is characterized as proprietary or as not paid for under the Contract.

Operating Systems and Software Applications. Operating Systems, Applications Software and Utilities Any operating systems and utilities, i.e., compilers compilers, utilities, case tools, database managers and other applications enabling software, and any applications software and associated documentation, and utilities used by the Contractor to provide services to the Department under the Contract, but not used exclusively to provide services to the Department shall be: Readily commercially available software used without modification by the Contractor. Readily commercially available software used with modification owned by the Contractor, which the Contractor agrees to deliver the source code and updated and current documentation, including but not limited to JCL, work flow, product process, applications, and interfaces upon final acceptance and any updates thereto upon termination and to grant to the Department or its designee at no charge a perpetual, irrevocable, fully paid up license to use, reproduce, duplicate and modify the modifications and associated documentation for the toe sole benefit of the Department. Proprietary software that the Contractor has the right to license to the Department and in which the Contractor agrees to deliver escrow the source code pursuant to section 14.2, and deliver updated and current documentation, including but not limited to JCL, work flow, product process, applications, and interfaces upon final acceptance and any updates thereto upon termination and to grant to the Department or its designee at no charge a perpetual, irrevocable, fully paid-up license to use, reproduce, duplicate and modify such software and associated documentation for the sole benefit of the Department. If the Contractor procures under the Contract a license for operating systems software or utilities to be used solely to perform services for the Department, the Contractor agrees to obtain such license in the name of the Department, if the Department is permitted to grant the Contractor the right to use such software solely to provide services to the Department during the term of the Contract. In such event, the Department agrees to grant to the Contractor, at no charge during the term of the Contract, subject to customary confidentiality and other license terms and conditions, the right to use such software solely to provide services to the Department. The license shall include, but not be limited to: All primary systems and support systems; All other system instructions for operating systems developed, designed or installed under the Contract; All data files; files All user and operational manuals and other documentation; Training programs for the Department or the Department’s agents and employees; All performance-enhancing operational plans and products; and All specialized or specially modified software and specially developed programs, including utilities, software and documentation that are required for or used in the generation of systems whether obtained, developed or modified in the course of performance of the Contract or before it. This obligation is not subject to limitation in any respect, regardless of whether any part of the system or software is characterized as proprietary or as not paid for under the Contract. Escrow of Source Code and Documentation Contractor shall deposit and maintain at all times during the term of this Agreement a complete copy of the source code (on a media and in an electronic format acceptable to the Department) and all related documentation for the most current version and immediately preceding version of the software utilized in performing this Agreement (and under any agreement involving maintenance and/or support) in escrow with an escrow agent satisfactory to the Department. As enhancements are produced or made available by the Contractor (including pursuant to any agreement involving maintenance and/or support of the software), the Contractor shall immediately thereafter deposit a complete copy of the source code (on a media and in an electronic format acceptable to the Department) and all updated documentation in escrow with the escrow agent for the Department’s benefit. The Department shall be entitled to receive all source code and documentation in escrow from the escrow agent, after providing five (5) business days written notice to the escrow agent, upon the occurrence of any one or more of the following events: (i) Contractor violates or commits a material breach of any term or condition of this Agreement or any agreement relating to maintenance and support of the software, and Contractor fails to cure such breach within the time period established for curing such breach, if any; (ii) Contractor attempts to assign, transfer or subcontract its maintenance or support obligations, or any interest therein, or delegate any duty with respect to such obligations, without the prior written consent of the Department; (iii) Contractor ceases to provide maintenance and support to the Department, as required by the terms of this Agreement, whether due to its ceasing to conduct business generally or otherwise; (iv) Contractor terminates or suspends its business or ceases to do business; (v) Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law; provided however, that in the event of an involuntary bankruptcy proceeding, Contractor shall have the right to object to release of the source code and documentation in which event the Department may grant Contractor up to 120 days to seek dismissal of the bankruptcy proceeding; (vi) Contractor has become insolvent or unable to pay its obligations as they accrue or become due; (vii) Contractor makes an assignment for the benefit of its creditors; (viii) a receiver, trustee, liquidator, custodian or similar official has been appointed to act on behalf of the Contractor with respect to any of its operations or assets; (ix) Contractor merges, is sold or enters into an agreement to sell all or substantially all of its assets resulting in the Contractor’s failure to remain a party to, or otherwise retain all of its rights and obligations under, this Agreement or any agreement relating to maintenance and support of the software, and the survivor or acquirer does not assume all of the Contractor’s rights and obligations under such agreements, whether by operation of law, written agreement or otherwise; or (x) Contractor violates or commits a breach of any term or condition of the source code escrow agreement, which breach has not been cured by Contractor within any applicable time period stated therein for curing such breach. Contractor shall provide a copy of the source code escrow agreement to the Department within fifteen (15) days after execution of this Agreement, the terms and conditions of which must be: (i) consistent with the terms of this Agreement and (ii) acceptable to the Department. Contractor shall pay all costs and fees payable to the escrow agent under the source code escrow agreement and shall not change the escrow agent or terminate, amend or modify the source code escrow agreement during the term of this Agreement, without the Department’s prior written consent. Contractor will notify the Department in writing immediately upon Contractor’s receipt of any notice of default, breach or termination from the escrow agent. Third Party Software If the Contractor is using another party’s software, upon final acceptance, the Contractor shall grant the Department a non-exclusive, perpetual license to use the third party software and its updated documentation for the Department’s internal business purposes. The licenses will continue until the Department permanently discontinues the use of the third party software. The terms in any license for third party software shall be consistent with the requirements of this Subsection. In the event of a conflict between the terms of any such license and this Contract, this Contract shall take precedence and supersede such license terms. Prior to utilizing any third party software product that may be included as part of a software deliverable to the Department, the Contractor shall provide to the Department copies of the license agreement from the licensor of the third party software to allow the Department to pre-approve the license agreement which must, at a minimum, provide the Department with necessary rights consistent with the IME.