Commuter rail operating agreement
INTELLECTUAL PROPERTY; OWNERSHIP
Download 2.72 Mb.
|
- Navigate this page:
- GRANT OF RIGHTS TO MBTA
- Schedule 3.15
- Schedule 3.10
- GRANT OF RIGHTS TO OPERATOR
- DELIVERY OF CERTAIN MATERIALS THAT EMBODY IP RIGHTS
- OPERATOR SOFTWARE SOURCE CODE ESCROW
- Deposit Materials
- Post-Trigger MBTA Modification
- APPENDIX 1 TO SCHEDULE 3.15 DEFINITIONS The following are additional definitions applicable to Schedule 3.15
|
INTELLECTUAL PROPERTY; OWNERSHIP
The MBTA owns all right, title and interest in and to all MBTA Data, including logs, reports, metrics, records and other data (and all associated Intellectual Property Rights).
All portions of the Commuter Rail IT Environment inherited from the MBTA or purchased in connection with this Agreement are the property the MBTA.
In addition to the asset listing set out in Section 1.2 (MBTA Ownership of MBTA Internal IT Environment), in the event of a Termination of the Agreement, the Operator shall provide a complete asset list including location and current status (such as in service, under repair, retired) of all Components of the Commuter Rail IT Environment known to the Operator. Any license, subscription, support or other IT-related agreements, though maintained by the Operator, shall be in MBTA's name and an MBTA official shall be the primary point of contact on all such agreements. Upon Termination (or on the request of the MBTA) the Operator shall promptly provide copies of license, subscription, support and other IT-related agreements with respect to such assets, and take all commercially reasonable steps to transfer such agreements to the MBTA.
All Software inherited by the Operator from the MBTA or purchased by the Operator for this Agreement for use in its completion with respect to the Commuter Rail IT Environment and, where applicable, with respect to the MBTA Internal IT Environment, shall be fully licensed. These licenses shall be owned for their duration by the MBTA though maintained by the Operator. All licensee and account information on the Operator side shall list an MBTA designee as the primary owner and controller of the license. For convenience of execution of the Agreement, the Operator may be authorized to act on behalf of the MBTA in the usage and operation of the license to facilitate the completion of the Agreement.
In the event of a transition pursuant to Schedule 3.16 (Information Technology Requirements), the Operator shall transfer possession of all components of the Commuter Rail IT Environment to the MBTA in a form and format, and through a process, reasonably designated by the MBTA.
Subject to Section 2.2 (Grant of Rights in Third Party Software) of this Schedule 3.15 (Intellectual Property; Ownership), the Operator hereby grants to the MBTA a non-exclusive, paid-up, sublicensable, royalty-free license under its Intellectual Property Rights to access, execute, copy, display, use and otherwise exploit the Operator Software for all purposes specified in, or contemplated by, the Contract Documents, as well as for the MBTA's internal purposes. For the purposes only of this Section 2 (Grant of Rights to MBTA) of Schedule 3.15 (Intellectual Property; Ownership), the term “Operator” shall include Affiliates of the Operator and the Operator shall cause its Affiliates to grant to the MBTA those rights set out in this Section 2 (Grant of Rights to MBTA) of Schedule 3.15 (Intellectual Property; Ownership). It is agreed and understood that the licenses granted in this Section 1 (Grant of Rights in Operator Software) of this Schedule 3.15 (Intellectual Property; Ownership) shall be irrevocable and perpetual with respect to Developed Software.
In order to fulfill obligations under this Agreement, The Operator shall ensure that the MBTA is granted the same or better rights to Third Party Software that the Operator (and its Subcontractors) obtain in the same Third Party Software. The MBTA acknowledges and agrees that the Operator's grant of rights to the MBTA pursuant to this Section 2 (Grant of Rights in Third Party Software) of this Schedule 3.15 (Intellectual Property; Ownership) is limited to the extent of the Operator's applicable Intellectual Property Rights in the Third Party Software. Upon the MBTA’s reasonable request, the Operator shall (in good and sufficient detail) (i) identify Third Party licensors of applicable Intellectual Property Rights, and (ii) provide applicable license terms. Upon a transition, Operator shall transfer the Third Party Software licenses to the MBTA and use all best efforts to ensure the Third Party license terms permit the rights to transfer.
Subject to Section 2.2 (Grant of Rights in Third Party Software) of this Schedule 3.15 (Intellectual Property; Ownership), the Operator hereby grants to the MBTA an irrevocable, non-exclusive, paid-up, sublicensable, royalty-free, perpetual license under its Intellectual Property Rights to install, execute, use, copy, modify, display, perform and otherwise exploit the Software APIs (including for purposes of clarity, the Operator Interfaces, Third Party APIs, system equipment Interfaces and hardware Interfaces) to (i) establish and maintain (a) interoperability between the Software, hardware, system equipment and other components and the Operator IT Infrastructure; (b) interoperability between the Commuter Rail IT Environment and the MBTA Internal IT Environment, and (ii) for all other purposes specified in, or contemplated by, the Agreement, as well as for the MBTA’s internal purposes.
The Operator hereby grants to the MBTA an irrevocable, non-exclusive, paid-up, sublicensable, royalty-free, perpetual license under its Intellectual Property Rights to install, execute, use, copy, modify, display, perform and otherwise exploit the hardware and other equipment Interfaces to (i) establish and maintain (a) interoperability between the Software, hardware, system equipment and other components and the Operator IT Infrastructure; (b) interoperability between the Commuter Rail IT Environment and the MBTA Internal IT Environment, and (ii) for all other purposes specified in, or contemplated by, the Agreement, as well as for the MBTA’s internal purposes.
The term “Design Documents” means drawings, shop drawings, plans, specifications, logical, graphic depictions, bills of materials, and all other associated materials that relate to the design, IT architecture, implementation, provisioning, maintenance, improvement, end-of-life, and other aspects of the Commuter Rail Services. The Operator grants to the MBTA an irrevocable, non-exclusive, paid-up, sublicensable, royalty-free, perpetual license under its Intellectual Property Rights to use, copy, modify, distribute, display, perform and otherwise exploit Design Documents for all purposes specified in, or contemplated by, the Agreement, as well as for the MBTA’s internal purposes.
The Operator hereby grants to the MBTA an irrevocable, non-exclusive, paid-up, royalty-free, sublicensable, perpetual license under its Intellectual Property Rights to use, copy, modify, distribute, display, perform and otherwise exploit the Documentation for all purposes specified in, or contemplated by, the Agreement, as well as for the MBTA's internal purposes. By way of clarification, and not limitation, the term Documents expressly includes all training plans, training programs and all other training materials that the Operator uses to fulfill its obligations set out in this Agreement including, but not limited to, those obligations in Schedule 3.10 (Training of Operator Personnel) and Schedule 3.16 (Information Technology Requirements).
Subject to Section 2.2 (Grant of Rights in Third Party Software) of this Schedule 3.15 (Intellectual Property; Ownership) and for the avoidance of doubt, in addition to those rights granted in Operator Software, Design Documents, Software APIs, and Hardware and Other Equipment Interfaces, the Operator hereby grants to the MBTA an irrevocable, non-exclusive, paid-up, sublicensable, royalty-free, perpetual license under its Intellectual Property Rights to use, copy, modify, distribute, display, perform and otherwise exploit all other Deliverables for all purposes specified in, or contemplated by, the Agreement, as well as for the MBTA’s internal purposes.
The term “Authorized Vendor” means a Third Party that meets the following two criteria: the third party (i) has agreed to protect Operator Confidential Information in a manner at least as protective as the Operator’s rights under the Agreement or applicable Statement of Work, and (ii) the MBTA has engaged the third party to provide goods or services. In consideration of the MBTA’s obligations under the Agreement, and notwithstanding anything to the contrary, the MBTA shall be entitled to permit Authorized Vendors to exercise the MBTA’s rights under this Section 2 (Grant of Rights to MBTA) of this Schedule 3.15 (Intellectual Property; Ownership).
The Operator acknowledges and agrees that, notwithstanding anything to the contrary, the rights granted to the MBTA pursuant to this Section 2 (Grant of Rights to MBTA) of this Schedule 3.15 (Intellectual Property; Ownership) are perpetual and irrevocable with respect to Developed Software, and that the MBTA shall continue to enjoy such rights regardless of the expiration or termination of the Agreement for any reason.
In consideration of the Operator fulfilling its obligations under the Agreement, the MBTA hereby grants to the Operator, under the MBTA’s Intellectual Property Rights, a limited, non-exclusive, non-transferable, non-sublicensable license to use the MBTA Internal IT Environment solely for the purpose of fulfilling the Operator’s obligations under the Agreement, and for no other purpose.
In consideration of the Operator fulfilling its obligations under the Agreement, the MBTA, under its Intellectual Property Rights, hereby grants to the Operator (i) for as long as the Operator is providing Deliverables or Services on which MBTA Trademark Assets are to be affixed pursuant to (a) the Agreement, or (b) the MBTA’s request, or (ii) earlier if requested by the MBTA; a limited, non-exclusive, non-transferable, non-sublicensable license to affix MBTA Trademark Assets to applicable Deliverables for use as contemplated under the Agreement. The Operator acknowledges the value of the goodwill associated with MBTA Trademark Assets and further acknowledges that any and all use of MBTA Trademark Assets pursuant to the Agreement shall inure to the benefit of the MBTA. Notwithstanding anything to the contrary, in the event the Operator’s exercise of rights under this Section 3.2 (Grant of Limited Trademark Rights to Operator) of this Schedule 3.15 (Intellectual Property; Ownership) threatens the goodwill or value of the MBTA Trademarks, the MBTA shall be entitled to immediately terminate the rights granted to the Operator pursuant to this Section 3.2 (Grant of Limited Trademark Rights to Operator) of this Schedule 3.15 (Intellectual Property; Ownership) upon providing notice to the Operator and providing a reasonable transition period to permit the Operator to remove MBTA Trademarks from Deliverables.
Any licenses granted to the Operator must be expressly provided herein, and there shall be no licenses or rights implied pursuant to the Agreement, based on any course of conduct, or other construction or interpretation thereof. All rights and licenses not expressly granted to the Operator are reserved.
The Operator shall provide the MBTA with Software APIs and hardware and equipment Interfaces, in a form and format reasonable requested by the MBTA, upon any of the following events: (i) at least thirty (30) days prior to the implementation of the applicable portion of the Commuter Rail IT Environment in a production environment; (ii) upon reasonable request by the MBTA; (iii) in the event of a transition pursuant to Schedule 3.16 (Information Technology Requirements); or (iv) upon the completed development of an Update to the applicable Software API or hardware and equipment Interface. The Operator acknowledges and agrees that any delivery of Software APIs and hardware and equipment Interfaces pursuant to this Section 4 (Delivery of Software APIs and hardware and equipment Interfaces) of this Schedule 3.15 (Intellectual Property; Ownership) shall include related Source Code that (a) contains good and sufficient programmers' comments; (b) constitutes the preferred form of the Source Code for making modifications to such Code; and (c) includes all related software development kits necessary or desirable for making modifications to such Code. For the avoidance of doubt, the Operator shall be obligated to provide Source Code (as referenced immediately above) for Developed Software. The Operator shall be obligated to provide Source Code for other components of the Operator Software only to the extent the Operator obtains such rights pursuant to a Third Party’s standard Software licensing terms.
The Operator shall provide the MBTA with Design Documents and Documentation, in a form and format reasonably requested by the MBTA, upon any of the following events: (i) within ten (10) days of the development of the applicable Design Documents and Documentation; (ii) upon reasonable request by the MBTA; (iii) in the event of a transition pursuant to Schedule 3.16 (Information Technology Requirements); and (iv) upon any revision to Design Documents and Documentation that have been previously provided to the MBTA, or any IT change, modification, or add, with such delivery to include a good and sufficient support plan for such change, modification, or add.
The Source Code (i) shall be in a form such that a programmer of ordinary skill in the applicable programming language(s) is able efficiently to print, display, and read Source Code; (ii) shall include Source Code listings, Object Code listings, design details, flow charts, and related material that permit the Operator Software efficiently to be copied, maintained, updated, improved, and compiled; (iii) shall include related libraries, other source components, compilers, and linkers so that, when compiled, linked and otherwise manipulated to create the runtime/executable image for the Operator Software, such materials create a complete and fully operational run-time/executable version of the Operator Software; (iv) shall contain good and sufficient programmers' comments; and (v) shall constitute the preferred form of the Source Code for making modifications to such Code. The term “Requisite Source Code” means (A) Operator Software (including, for the avoidance of doubt, Developed Software) that meets such requirements and (B) Third Party Software that meets these requirements, to the extent the Operator obtains rights to such Source Code pursuant to a Third Party's standard Software licensing terms.
Prior to the delivery of the Deposit Materials to the MBTA, the Operator shall conspicuously label for identification each document, magnetic tape, disk, or other tangible media upon which the Deposit Materials are written or stored (the “Deposit Log”).
Upon receipt of the Deposit Materials, the MBTA may conduct a deposit inspection by visually matching the labeling of the tangible media containing the Deposit Materials to the item descriptions and quantity identified herein. In addition, the MBTA may elect to cause a verification of the Deposit Materials in accordance with Section 5.5 (Deposit Verification) below at Operator’s expense. Operator shall have the right to be present at the verification.
The MBTA may evaluate the deposit to verify the deposit of: (a) Deposit Materials required and fully complying with the Agreement; and (b)(i) the hardware and software configurations reasonably necessary to maintain the Deposit Materials; (ii) the hardware and software configurations reasonably needed to compile the Deposit Materials; and (iii) the compilation instructions.
The Deposit Materials shall be held by the MBTA in escrow and the MBTA shall be entitled to use such Deposit Materials upon the occurrence of one or more of the following events (collectively, “Triggering Events”): (a) failure of the Operator (i) to comply with the Service Levels; (ii) to remedy a material deviation in the Deposit Materials from the requirements set out in Section 5.1 (Source Code Definition); or (iii) to respond adequately, as determined by the MBTA in the exercise of reasonable judgment, to an Event of Default; (b) if (i) the Operator makes a general assignment for the benefit of creditors, (ii) the Operator files a voluntary petition in bankruptcy, (iii) the Operator petitions for reorganization or arrangement under the bankruptcy laws, (iv) if a petition in bankruptcy is filed against the Operator, (v) if a receiver or trustee is appointed for all or any part of the property and assets of the Operator, of (vi) if the Operator voluntarily winds- up or liquidates its business or that segment of its business pertinent to the Operator Software; or (c) in the event of a transition pursuant to Schedule 3.16 (Information Technology Requirements).
Upon the occurrence of a Triggering Event, the MBTA (and its Authorized Vendors) shall have the rights to use, execute, copy, modify and otherwise exploit the released Source Code in order to provide corrections for, maintain, improve, and use the Operator Software (and applicable Third Party Software). The MBTA shall be entitled to engage Authorized Vendors to develop and modify Source Code contained in the Deposit Materials for such purposes. If the MBTA or an Authorized Vendor modifies the released Source Code and implements the modified Source Code in a production environment (each, a “Post-Trigger MBTA Modification”), the Operator shall not be responsible for non-compliance with a Service Level or a failure of warranty to the extent the Post-Trigger MBTA Modifications caused the Service Level non-compliance or the warranty failure.
The Operator acknowledges and agrees that it is solely responsible for ensuring that all subcontractors it engages to fulfill any of the Operator's obligations under the Agreement relating to the Deposit Materials agree to be bound by the provisions of this Schedule 3.15 (Intellectual Property; Ownership). By way of clarifying example, and not limitation, should the Operator engage a subcontractor to provide software, and such software constitutes Developed Software, then the subcontractor shall be obligated to treat the provided software as Deposit Materials and place it in escrow pursuant to this Section 5 (Operator Software Source Code Escrow) of this Schedule 3.15 (Intellectual Property; Ownership).
The Operator represents and warrants that, as of the execution of the Agreement and during the term of the Agreement, Software Components within the Commuter Rail IT Environment do not and shall not include software licensed under a “reciprocal” or “copyleft” open source license (such as the GPL or MPL) that would require the MBTA to subsequently license or otherwise make available Source Code to a third party.
The Operator represents and warrants that, as of the time of delivery, nothing within the Commuter Rail IT Environment contains any computer virus, spyware, malware, code of malicious intent, worm or other intentionally destructive code. APPENDIX 1 TO SCHEDULE 3.15 DEFINITIONS
|