El mercado en contextos de pandemia COVID-19

THIS AGREEMENT (hereinafter referred to as the “Agreement”) dated the day of ..., 20...

BETWEEN

Alpha, a ...company with its principal place of business at... Alpha on behalf of itself, its affiliates and subsidiaries hereinafter called “Alpha” which expression unless repugnant to the context includes its successors in business and interest on one part

AND

Beta, a joint venture of ITI Limited (“ITI”), Alpha and The Industrialization Fund for Developing Countries (“IFU”), a company incorporated under the Indian Companies Act 1956, having its Registered Office at ..., and works at ..., hereinafter called “Beta” which expression unless repugnant to the context includes its successors in business and interest on the other part

WITNESSETH:

WHEREAS Alpha and Beta in 1995 successfully have entered into a Technology and License Agreement regarding SDH equipment and now the Parties have a desire to extend the business relationship so Beta will act as a sub supplier to Alpha in accordance with this Agreement;

WHEREAS Beta has acquired from Alpha the assets from its Indian software center “Alpha,” in ...(“TCI”) and Beta intends to offer software services using the methodology already deployed by Alpha.

WHEREAS, Alpha is engaged in the business of manufacture and sale of telecom products and is desirous of engaging the services of Beta for development of software required by it;

NOW, THEREFORE in consideration of the premises and the mutual rights and obligations herein set forth, the Parties hereto agree as follows:

Definitions

“Confidential Information” means information shared with Beta and designated by Alpha as Confidential Information about Alpha’s business and/or that of its customers and/or other third parties which is not available to the general public and which may be learned, and/or generated, made, conceived, or contributed to by Beta towards performance of this Agreement. This includes, without limitation, information relating to Alpha’s organization, its Software (as hereinafter defined), intellectual property, business and customer information, trade secrets, customer lists, employment policies, personnel, and information about Alpha’s products, processes, including ideas, concepts, projections, know-how, technology, manuals, drawings, designs, specifications, all data, documents, applications, statements, programs, plans, papers, resumes, records and other documents containing and/or relating to such confidential information, and any and all information of value to Alpha, or which gives Alpha an edge over competition, which Alpha is legally obliged to treat as confidential, and which Alpha treats and designates as confidential.

”Software”, means software in any and all various stages of development and/

or final form, and includes, without limitation, the literal elements of a program (source code, object code or otherwise), its audio-visual components (menus, screens, structure and organisation), any human or machine readable form of the program, and any writing or medium in which the program or the information therein is stored, written or described, including, without limitation, diagrams, flow charts, designs, drawings, specifications, models, data, bug reports and customer information.

“Know-how” means technical information, possessed by Alpha and includes hardware and software manuals, test procedure manual, relevant proprietary / confidential data, related drawings, documentation, engineering skills, data sheets, literature, patentable or not which is presently owned and / or used by Alpha and

which Beta receives from Alpha in connection with this Agreement.

”Software Services” shall mean and include any services towards software development, software support, software project management services, software error corrections, development of new applications, maintenance or upgrade or rework on any existing software products/applications, customer support etc. or any other services provided through software engineers (SW Personnel) of Beta.

“Work Product” shall mean the results of SW Personnel’s activities during the course of its performance under this Agreement, including all ideas, concepts, developments, know-how techniques, processes, methods, discoveries, innovations and inventions, including without limitation all information developed regarding technical, (such as design, manufacturing, and procurement specifications, procedures, manufacturing processes) and physical embodiments of all such information (such as drawings, specification sheets, computer storage media, documentation, reports, manuals, correspondence, and samples).

“SW Personnel” shall mean Beta employees who are technically skilled in making Software development and have been trained on Software development on Alpha products, allocated to provide Software Services to Alpha as per this Agreement.

“Man-year” means 365 salary paid calendar days of one SW Person or 12 salary paid calendar months of one SW Person.

1. Engagement

1.1 Alpha hereby engages Beta to provide to Alpha the Software Services as defined in this Agreement.

1.2 Beta will make available trained SW Personnel to Alpha so as to meet Alpha requirement for required number of Man-years of Software Services. These SW personnel shall render Software Services as per Alpha instructions and shall deliver services as per the transmission mode agreed between the parties.

1.3 Alpha will within a period of ... years from the effective date of this Agreement avail from Beta ... Man-years of Software Services,.

Alpha will avail itself of total ... Man-years of Software Services over three years as follows:

year 1 ... Man-years year 2 ... Man-years year 3 ... Man-years

The numbers for year 2002 are to be understood as indicative and may be changed based upon how many ... employees will actually join Beta.

Alpha expects to have available SW Personnel of about ... employees per year.

In future years the number of SW Personnel may be adjusted upwards or downwards after mutual Agreement. Alpha does not expect Beta to reduce the number of SW Personnel by more than ... employees relative to the said ... SW Personnel employees per year.

If Alpha requests Beta to increase the number of SW Personnel beyond the

number above, Alpha will allow Beta a four months ramp-up period exclusive of training period.

The parties will however at best effort basis accommodate requirements for changes in the allocated SW Personnel at shortest possible notice.

1.4 The price for one Man-year corresponds to ... (amount) The total price for Software Services according to this Agreement amounts to ...(amount)

1.5 Charges and other terms for any Software Services ordered by Alpha beyond the ... Man-years mentioned in Section 1.3 will be mutually agreed between Alpha and Beta.

2. Term of the Agreement

This Agreement shall be effective on ... (date) regardless of the date of execution hereof, and shall continue ... years from the Effective Date at which time it shall automatically expire.

3. Charges and Payment

3.1. Beta shall raise invoices at the end of each month for the number of salary paid days of SW Personnel during that month. All invoices shall be raised in ... (amount)

3.2. Beta will certify number of days for which salary has been paid to SW Personnel every month (person and days specified). On quarterly basis Beta will provide details of salary paid days and leaves availed for each SW Personnel.

3.3. All invoices shall be subject to verification prior to payment. Invoices submitted by Beta will:

(i) Identify any authorized expenses incurred hereunder; and

(ii) Make reference to this Agreement, or otherwise identify the invoice in such manner as Alpha may reasonably require.

3.4. The agreed upon payment terms for services performed by Beta shall be ... days upon date of invoice. Beta shall submit invoices in duplicate to Alpha as follows:

ALPHA

...(address) 4. Reimbursable Expense

4.1. Alpha shall reimburse Beta the expenses for travel (air coach fares on economy class), boarding & lodging and public ground transport to and from Alpha offices for all SW Personnel, incurred as a result of the work performed by Beta at Alpha at Alpha’s request. Alpha will also reimburse daily allowances for such SW Personnel working on-site as per local regulations, currently @ ... per day. Alpha shall also reimburse Beta the expenses for travel (air coach fares on economy class) up to one round trip Alpha-Beta-Alpha per quarter for SW Personnel staying at Alpha on Alpha’s request for more than 3 months, Beta shall invoice Alpha for these expenses and Alpha shall pay Beta as per the terms outlined in Section 3. Alpha will make no direct payments to SW Personnel.

4.2. Alpha has the right to find accommodation for SW Personnel appropriate to their respective position when they come to work at Alpha.

5. Supplies, Equipment and Management

5.3. Save as provided through the assets Beta acquires from Alpha, Alpha shall supply Beta, on no charge, returnable basis; SW or HW tools or other items of capital nature (except required for maintaining basic infrastructure related to building/ leasehold improvement and IT as specified at 5.4 below) which may be required by Beta, in order to perform its services according to this Agreement.

However, if Alpha faces any legal complication in providing these SW tools to Beta, Alpha shall re-imburse to Beta all costs on actual basis required for acquiring the said tools etc. Alpha shall provide Beta the project management, technical leadership and priority setting, and source code management (“SCM”) deemed necessary by Alpha in order to let Beta to perform its services according to this Agreement. Beta is not allowed to use anything listed in this section or any other supplies or equipment for any other purpose than according to this Agreement.

5.4. Alpha warrants that the personnel who have been transferred from Alpha to Beta have been fully trained in Alpha’s products, and thus shall be considered SW Personnel.

5.5. In case new personnel are required to be allocated for providing Software Services, both Beta and Alpha will jointly select such personnel. Beta warrants that the personnel providing services to Alpha are provided the necessary tools and proper training. Training needs of these personnel shall be mutually agreed between Alpha and Beta and will not exceed two months in total duration. If this training requires that Beta employees travel to Alpha, Beta will pay for travel and boarding/lodging expenses whereas Alpha will provide training free of charge. If Beta requests and training takes place in India, Beta will pay travel and boarding/

lodging expenses for the Alpha trainers. Beta employees will not be considered SW Personnel until they have either (i) completed two months of required training either at Beta or at Alpha or (ii) been certified by Alpha to be fully trained, whichever is earlier.

5.6. Alpha shall have the right to communicate directly with SW Personnel to ensure that each employee understands his tasks and deadlines. If SW Personnel in Alpha’s opinion requires additional training then any expense including payment for SW Personnel’s time as per 1.4 incurred in connection with such training will be borne by Alpha as per Section 4 above.

5.7. Beta will provide the IT infrastructure including but not limited to internet access with the necessary standard MS office applications required for employees to work efficiently with the team in Alpha.

5.8. Any SW or HW tools or other items of capital nature provided by Alpha to Beta according to this Agreement shall promptly be returned by Beta to Alpha upon request.

6. Software License

To the extent Alpha provides Beta with computer programs contained on a magnetic tape, disc, semiconductor device, or other memory device or system memory (“Software”) under this Agreement, Beta is hereby granted a revocable, nonexclusive, nontransferable, indivisible personal license to use the Software only to perform its services under this Agreement. Software shall be treated as the exclusive property of Alpha and Beta shall: (1) treat such Software as information provided to Beta by Alpha pursuant to section12.1; (2) utilize such Software or any portions or aspects thereof (including any methods or concepts utilized therein) solely for performance of services under this Agreement; (3) forthwith return to Alpha all memory media, documentation and/or other material that has been modified, updated, or replaced; (4) not modify, disassemble, or decompile such Software, or reverse engineer any portion of the Software, or permit others to do so, without Alpha’s written consent; (5) return such Software, and any copies, in whole or in part, to Alpha upon Beta’s request; and (6) not reproduce or copy such Software in whole or in part except for backup and archival purposes or as otherwise permitted in writing by Alpha or as required to perform the development performed for Alpha’s. Alpha provides such Software “AS IS”. The obligations of this section shall survive the expiration or termination of this Agreement.

7. Development Process

7.1. The parties’ intent is to continue to use the methodologies already deployed with Alpha and Alpha in the future development work including but not limited to review of test and design documents, design architecture and project reporting.

7.2. The parties will work closely together to ensure that tools and methodologies are harmonized with the aim of ensuring that Software developed by Alpha using own resources or SW Personnel and Software developed by Beta remain compatible. This means that the software tools already in place will continue to be used and upgraded as Alpha upgrade their tools.

8. Communications and Administration

For and on behalf of Alpha, liaison and general administration of the Agreement for Alpha shall be through the person designated below. All reports, loaned supplies and equipment shall be sent directly to this individual or his designate:

ALPHA

...(address) Att.: ...

For and on behalf of Beta, liaison and general administration of the Agreement for Beta shall be through the person designated below:

Beta

...(address) Attn. ...

9. Rights in Work Product

9.1. The Work Product which SW Personnel, conceive or reduce to practice

whether alone or with others, during the course of its performance under this Agreement, shall be the exclusive property of Alpha.

9.2. The Work Product shall be deemed Alpha proprietary information and shall not be disclosed to anyone outside of Alpha, or used by Beta or others without the prior, written consent of Alpha. Beta shall restrict its disclosure of the Work Product for their performance under this Agreement.

9.3. Beta hereby assigns to Alpha all its rights, title and interest in or to any inventions, any ideas, patentable or not, conceived or made by SW Personnel working on the Subject Matter of this Agreement alone or with others, during substantially the period of time in which Beta is engaged by Alpha, and that are Work Product, or related in any way to the Subject Matter of this Agreement, or to the actual or prospective business of Alpha or its subsidiaries. The “Subject Matter of this Agreement” includes the engagement set forth in Section 1, the Work Product, and any information received by Beta from Alpha under and during the term of the Agreement.

9.4. During the term of this Agreement and within ... months thereafter when called upon to do so by Alpha, Beta shall execute patent applications, assignments to Alpha, and other papers and agrees to render such other assistance which Alpha believes necessary to secure for Alpha the full protection and ownership of all rights in and to the Work Product of the Software Services performed by Beta. The filing of patent applications on inventions made by Beta shall be decided by Alpha and shall be for such countries as Alpha shall elect.

Alpha shall bear the expenses in connection with the preparation, filing, and prosecution of applications for patents and for all matters provided in this subsection requiring the time and/or assistance of Beta in securing protection and ownership of Alpha for such inventions.

9.5. All Subject Matter of this Agreement capable of copyright protection within the Work Product, prepared by Beta under Alpha’s supervision (“Written Data”), including without limitation, any drawing, schematic, disclosure, article, paper, treatise, computer program, or report, shall be considered a “work made for hire”

of Alpha under the copyright laws of ..., and as such shall be the exclusive property of Alpha. If any Subject Matter of this Agreement capable of copyright protection within Written Data should not qualify as a “work made for hire”, Beta hereby assigns all rights, title and interest in and to such Subject Matter of this Agreement capable of copyright protection within the Written Data, including the copyright, and all extensions and renewals thereof, to Alpha. Upon Alpha’s request, Beta shall execute any document and render such other assistance as reasonably necessary to establish, preserve and enforce the full right, title, and interest worldwide in the Written Data, including formal conveyance of copyright. Written Data shall not be published or submitted for publication by Beta without the prior, written approval of Alpha. No license is hereby granted to Beta regarding said Written Data.

10. Insurance

The parties will be responsible for all insurance related to their respective scope of work as per this Agreement.

11. Warranties and Indemnity

11.1. Beta warrants that it pays and/or withholds all employment related taxes for SW Personnel.

11.2. All other warranties than those expressly stated in this agreement by the parties is hereby disclaimed by the parties.

12. Confidential Information

The obligations of this section shall survive the expiration or termination of this Agreement.

12.1. Beta shall maintain confidential and secret all written, recorded, photographic, machine-readable, or other physical form which may be disclosed or provided to Beta, by Alpha or at Alpha’s direction and Beta shall not disclose this information to any other person (including Alpha employees in any other division, group, or entity), firm, or corporation. Beta shall also maintain confidential the

“Know-how” and future plans of Alpha relating to the fields of endeavor in which Beta performs investigations, evaluations, and services for Alpha as well as the nature of work projects to which Beta is exposed and the identity of persons working on those projects.

12.2. As between Alpha and Beta, all information referred to in section 12.1 shall remain the property of Tellabs, and such information and all copies thereof shall be promptly returned to Alpha upon Alpha’s request for such return. Except as expressly stated in this Agreement, nothing contained in this Agreement shall be construed as granting to or conferring upon Beta any rights, by license or otherwise, express or implied, in such information, other than the right to use such information for performing services under this Agreement. Any copies of such information made by Beta shall reproduce proprietary marking and legends included therein, but the provisions of this Agreement supersede any provisions of such legends inconsistent herewith.

12.3. The existence of this Agreement and the terms and conditions hereof shall not be disclosed by Beta to others, except with the prior, written consent of Alpha or as may be required by law or as necessary to establish its rights hereunder. Beta shall not use the name of Alpha in any, public announcement or advertisement, in relation to this Agreement without the prior, written consent of Alpha except for generic reference to products and services being offered by Beta to its customers

12.4. If, in connection with its performance, Beta discloses to Alpha any ideas, developments, or inventions conceived or actually reduced to practice by Beta

12.4. If, in connection with its performance, Beta discloses to Alpha any ideas, developments, or inventions conceived or actually reduced to practice by Beta