Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available: (i) Successful Respondent will grant to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to Use, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination; (ii) Successful Respondent shall deliver to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)): A. a copy of such Materials and related documentation; B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials if they are not Commercial Off The Shelf products; and C. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B); and (iii) Successful Respondent shall offer to provide to DIR, the DIR Customers, and Entities that qualify as DIR Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard terms and conditions and for fees and charges in each case no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials.
Appears in 1 contract
Samples: Master Services Agreement
Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available:
(i) Successful Respondent will grant hereby grants to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, ) a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to Use, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination;
(ii) Successful Respondent shall deliver to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)):
A. a copy of such Materials and related documentation;
B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials;
C. the source code and object code for such Materials if they that are not Commercial Off The Shelf products; and
C. D. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B); and
(iii) Successful Respondent shall offer to provide to DIR, the DIR Customers, and Entities that qualify as DIR Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard reasonable commercial terms and conditions and for reasonable fees and charges (on the basis of most favored customer pricing based on Successful Respondent customers receiving similar volumes of services similar to such Upgrades, maintenance, support, and other services).
B. Non-Commercially Available Successful Respondent Owned Materials
(a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in each case writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its 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 therefor under this Agreement. DIR (or, at DIR's direction, its 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.
(b) If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent 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, Successful Respondent 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.
(c) At DIR's request, Successful Respondent 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 those offered generally by the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to commercial licensees offer or provide Upgrades, maintenance, support, or other services, Successful Respondent shall deliver 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 Successful Respondent owned materials shall thereafter be provided on an "as is" basis).
(d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent 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, Successful Respondent 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, Successful Respondent shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.
(e) 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 Section 7.6.2
Appears in 1 contract
Samples: Master Services Agreement
Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available:
(i) Successful Respondent will grant hereby grants to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, ) a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to Use, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination;
(ii) Successful Respondent shall deliver to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)):
A. a copy of such Materials and related documentation;
B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials;
C. the source code and object code for such Materials if they that are not Commercial Off The Shelf products; and
C. D. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B7.6.2.1(ii)(B); and
(iii) Successful Respondent shall offer to provide to DIR, the DIR Customers, and Entities that qualify as DIR Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard reasonable commercial terms and conditions and for reasonable fees and charges (on the basis of most favored customer pricing based on Successful Respondent customers receiving similar volumes of services similar to such Upgrades, maintenance, support, and other services).
B. Non-Commercially Available Successful Respondent Owned Materials
(a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in each case writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its 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 therefor under this Agreement. DIR (or, at DIR's direction, its 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.
(b) If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent 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, Successful Respondent 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.
(c) At DIR's request, Successful Respondent 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 those offered generally by the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to commercial licensees offer or provide Upgrades, maintenance, support, or other services, Successful Respondent shall deliver 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 Successful Respondent owned materials shall thereafter be provided on an "as is" basis).
(d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent 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, Successful Respondent 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, Successful Respondent shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.
(e) 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 S ection 7.6.2
Appears in 1 contract
Samples: Master Services Agreement
Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available:
(i) Successful Respondent will grant hereby grants to DIR, the DIR DCS Customers and Entities that qualify as DIR DCS Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, ) a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to Use, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR DCS Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination;
(ii) Successful Respondent shall deliver to DIR, the DIR DCS Customers and Entities that qualify as DIR DCS Customers ([or, at DIR's election, to their designee(s)):]:
A. a copy of such Materials and related documentation;
B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials;
C. the source code and object code for such Materials if they that are not Commercial Off The Shelf products; and
C. D. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B7.6.2.1(ii)(B); and
(iii) Successful Respondent shall offer to provide to DIR, the DIR DCS Customers, and Entities that qualify as DIR DCS Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard reasonable commercial terms and conditions and for reasonable fees and charges (on the basis of most favored customer pricing based on Successful Respondent customers receiving similar volumes of services similar to such Upgrades, maintenance, support, and other services).
B. Non-Commercially Available Successful Respondent Owned Materials
(a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in each case writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its designee) to provide for the DCS Customers and Entities that qualify as DCS Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefor under this Agreement. DIR (or, at DIR's direction, its 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.
(b) If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent 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, Successful Respondent 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.
(c) At DIR's request, Successful Respondent 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 those offered generally by the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to commercial licensees offer or provide Upgrades, maintenance, support, or other services, Successful Respondent shall deliver 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 Successful Respondent owned materials shall thereafter be provided on an "as is" basis).
(d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent 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, Successful Respondent 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, Successful Respondent shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.
(e) Unless DIR has otherwise agreed in advance, DIR, the DCS Customers and Entities that qualify as DCS 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 Section 7.6.2
Appears in 1 contract
Samples: Master Services Agreement
Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available:
(i) Successful Respondent will grant hereby grants to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, ) a worldwide, perpetual, non-exclusive, irrevocableirrevocable (provided that Materials are used in accordance with the terms hereof), royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to UseUse for the benefit of DIR and DIR Customers, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination;
(ii) Successful Respondent shall deliver to DIR, the DIR Customers and Entities that qualify as DIR Customers (or, at DIR's election, to their designee(s)):
A. a copy of such Materials and related documentation;
B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials;
C. the source code and object code for such Materials if they that are not Commercial Off The Shelf products; and
C. D. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B7.6.2.A(ii)(B); and
(iii) Successful Respondent shall offer to provide to DIR, the DIR Customers, and Entities that qualify as DIR Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard reasonable commercial terms and conditions and for reasonable fees and charges (on the basis of most favored customer pricing based on Successful Respondent customers receiving similar volumes of services similar to such Upgrades, maintenance, support, and other services).
B. Non-Commercially Available Successful Respondent Owned Materials
(a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in each case writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its 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 therefor under this Agreement. DIR (or, at DIR's direction, its 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.
(b) If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent 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, Successful Respondent 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.
(c) At DIR's request, Successful Respondent 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 those offered generally by the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to commercial licensees offer or provide Upgrades, maintenance, support, or other services, Successful Respondent shall deliver 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 Successful Respondent owned materials shall thereafter be provided on an "as is" basis).
(d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent 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, Successful Respondent 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, Successful Respondent shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.
(e) 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 Section 7.6.2
Appears in 1 contract
Samples: Master Services Agreement
Successful Respondent Owned Materials. A. Commercially Available Successful Respondent Owned Materials With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are necessary and used to provide the Services (including all modifications, replacements, Upgrades, enhancements, improvements, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are commercially licensed or otherwise commercially available:
(i) Successful Respondent will grant hereby grants to DIR, the DIR DCS Customers and Entities that qualify as DIR DCS Customers (or, at DIR's election, to their designee(s)), through its wholly-owned subsidiary, Deloitte Consulting Products Services LLC, ) a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up license on standard terms and conditions no less favorable than those offered generally by Successful Respondent to commercial licensees of such Materials (or at DIR election under then current terms and conditions applicable between Successful Respondent and DIR for similar items) to Use, with the right to grant sublicenses to Use, such Materials and the IP Rights therein; provided that, in all events, such terms and conditions shall be at least broad enough to permit DIR and the DIR DCS Customers following the expiration or termination of the Agreement, to continue to use such Materials necessary and used to provide for the Services and uses for which such Materials are in use at the time of such expiration or termination;
(ii) Successful Respondent shall deliver to DIR, the DIR DCS Customers and Entities that qualify as DIR DCS Customers ([or, at DIR's election, to their designee(s)):]:
A. a copy of such Materials and related documentation;
B. the source code and object code for such Materials to the extent such code is reasonably necessary to permit them to Use such Materials;
C. the source code and object code for such Materials if they that are not Commercial Off The Shelf products; and
C. D. the source code and object code for such Materials that are Commercial Off The Shelf products if Successful Respondent does not offer or provide upgrades, maintenance, support and other services for such Successful Respondent Owned Materials as provided in Section 7.6.2A(ii)(B7.6.2.1(ii)(B); and
(iii) Successful Respondent shall offer to provide to DIR, the DIR DCS Customers, and Entities that qualify as DIR DCS Customers [or, at DIR's election, to their designee(s)] Upgrades, maintenance, support, and other services for such Materials that Successful Respondent offers commercially at the time on standard reasonable commercial terms and conditions and for reasonable fees and charges (on the basis of most favored customer pricing based on Successful Respondent customers receiving similar volumes of services similar to such Upgrades, maintenance, support, and other services).
A. Non-Commercially Available Successful Respondent Owned Materials
(a) With respect to those Materials owned by Successful Respondent or Successful Respondent Affiliates or Subcontractors that are implicated by the Assistance Event that are used to provide the services (including all modifications, replacements, Upgrades, enhancements, improvements, derivative works, methodologies, tools, documentation, materials, configurations, and media related thereto) and that are not then commercially licensed or otherwise commercially made available, unless otherwise expressly agreed by DIR in each case writing prior to the first use of such Materials, Successful Respondent hereby grants to DIR (or, at DIR's direction, its designee) a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to the extent this Agreement is assigned in accordance with this Agreement) fully paid-up license, to Use such Materials and the IP Rights therein following the expiration or termination of the term or termination of the Service(s) for which such Materials were in use. Such license shall be limited to the use of such Materials and IP Rights by DIR (or, at DIR's direction, its designee) to provide for the DCS Customers and Entities that qualify as DCS Customers or have provided for them by a third party, services similar to the Services and such other uses permitted therefor under this Agreement. DIR (or, at DIR's direction, its 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.
(b) If Successful Respondent is unwilling or unable to grant DIR or its designee the license and other rights described in the preceding paragraph, Successful Respondent 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, Successful Respondent 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.
(c) At DIR's request, Successful Respondent 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 those offered generally by the pricing customarily charged to other commercial customers receiving equivalent services. If Successful Respondent fails to commercial licensees offer or provide Upgrades, maintenance, support, or other services, Successful Respondent shall deliver 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 Successful Respondent owned materials shall thereafter be provided on an "as is" basis).
(d) Notwithstanding the foregoing, during the Termination Assistance Services period, Successful Respondent 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, Successful Respondent 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, Successful Respondent shall direct the amount it would have expended in procuring the proposed substitute product toward the procurement of the product selected by DIR.
(e) Unless DIR has otherwise agreed in advance, DIR, the DCS Customers and Entities that qualify as DCS 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 Section 7.6.2
Appears in 1 contract
