Variables y operacionalización

9.1 Work for hire.—All work performed hereunder, including but not limited to, the Services, deliverables, business methods or processes, programs, systems, processes, data development, modification and enhancement of systems, computer programs, operating instructions, ideas, designs, concepts and all other documentation developed for or relating to Alpha Pvt. Ltd. or the Project and all documents, data and other information of any kind, including information incorporating, based upon, or derived from the foregoing, including reports and notes prepared by Beta Pvt. Ltd. and its employees and agents, and all software Deliverables and other Deliverables developed, prepared, produced or created for Alpha Pvt. Ltd. by Beta Pvt. Ltd. hereunder (whether or not completed) together with all modifications, revisions, changes, copies, partial copies, translations, compilations, partial copies with modifications and derivative works of the foregoing (collectively, the “Work Product”) are, shall be and shall remain the property of Alpha Pvt. Ltd. and may not be used by Beta Pvt. Ltd. or its employees for any other purpose except for the benefit of Alpha Pvt. Ltd.. Beta Pvt. Ltd. shall not sell, transfer, publish, disclose, display, rent, lease, loan, license or otherwise make available to others any part of the Work Product, or copies thereof and Beta Pvt. Ltd. shall treat the same as Confidential Information. All applicable rights to patents, copyrights, trademarks, trade secrets and all other Intellectual Property Rights in and to the Work Product are, shall vest and shall remain in Alpha Pvt.

Ltd., and neither Beta Pvt. Ltd. nor its employees shall have any property interest in the Work Product, and same are to be considered works made for hire. (Beta Pvt. Ltd. proposes to add: “Beta Pvt. Ltd. will provide generic hardware and software required for performance of the Services. However, should special or project specific hardware or software be required, these shall be provided on loan by Alpha Pvt. Ltd. and set forth in the attached Schedules. All hardware and software provided on a loan basis will be returned to Alpha Pvt. Ltd. after the project is completed in the same condition it was delivered, reasonable wear and tear excepted. Alpha Pvt. Ltd. shall be responsible for the shipping, handling, insurance, and annual maintenance costs of all loaned hardware and software.”) 9.2 Assignment of rights.—To the extent the Work Product or any materials contained therein or prepared therefore or the Intellectual Property Rights therein do not vest in Alpha Pvt. Ltd. by reason of the same being a work made for hire, Beta Pvt. Ltd. hereby grants, assigns and transfers to Alpha Pvt. Ltd. all right, title and interest in and to the Work Product and all Intellectual Property Rights thereto and Beta Pvt. Ltd. shall not retain any such rights therein. Alpha Pvt. Ltd. shall have all authorship rights therein. All Work Product shall belong exclusively to Alpha Pvt. Ltd., with Alpha Pvt. Ltd. having the exclusive right to obtain and to hold in its own name, patents, copyright registrations or trademark registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof, unencumbered by any claim by Beta Pvt. Ltd., its officers, directors, employees, agents or sub-contractors. Beta Pvt. Ltd. agrees, at Alpha Pvt. Ltd.’s cost, to give Alpha Pvt. Ltd. and any person designated by Alpha Pvt.

Ltd., reasonable assistance required to perfect the rights defined in this section including execution and delivery of all documents required by Alpha Pvt. Ltd. to document or protect Alpha Pvt. Ltd. proprietary rights in the Work Product or assistance in filing applications for patent or copyright registration of such materials in the name of Alpha Pvt. Ltd. and in making all other necessary or appropriate filings with governmental entities so as to secure and maintain maximum protection for the Work Product. Unless otherwise requested by Alpha Pvt. Ltd., upon the completion of the Services to be performed hereunder, or upon the earlier termination of this Agreement, Beta Pvt. Ltd. shall immediately turn over to Alpha Pvt. Ltd. all such materials and the Work Product developed pursuant hereto and no copies thereof shall be retained by Beta Pvt. Ltd. or its employees without the prior written consent of Alpha Pvt. Ltd.. Without limiting the foregoing, Beta Pvt. Ltd. hereby waives any and all claims that Beta Pvt. Ltd. may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of “droit moral”

with respect to the results and proceeds of the Work Product and Beta Pvt. Ltd.’

services hereunder.

9.3 Alpha Pvt. Ltd. furnished materials.—Any materials furnished by Alpha Pvt. Ltd. in connection with this Agreement are provided to Beta Pvt. Ltd. solely for the use by Beta Pvt. Ltd. in furtherance of this Agreement, and all rights, title and interest thereto shall at all times remain in Alpha Pvt. Ltd.. All drawings, models, parts, drafts, reports, documentation, computers, work stations, network-related devices, computer equipment, office equipment, software, data storage media, whether machine readable or otherwise, and/or any other property, made,

prepared, or acquired by Beta Pvt. Ltd. from Alpha Pvt. Ltd. in the rendition of services hereunder, and all copies thereof shall be the property of Alpha Pvt. Ltd.

and shall be, at such times as may be specified by Alpha Pvt. Ltd., delivered to Alpha Pvt. Ltd.. Neither Beta Pvt. Ltd. nor its employees or Beta Pvt. Ltd. may remove any such property from Beta Pvt. Ltd.’ or Alpha Pvt. Ltd.’s or its Affiliates’

premises or use same for any other purpose other than providing the services without Alpha Pvt. Ltd.’s prior consent.

9.4 Pre-existing materials.—To the extent that any pre-existing materials or information owned by Beta Pvt. Ltd. or any third party are contained in the Deliverables or are necessary for the use of the Deliverables, including, but not limited to the developers Tools, Beta Pvt. Ltd. warrants that it has or will acquire the right to grant and will grant to Alpha Pvt. Ltd. and its Affiliates, before delivery of the Deliverables, an irrevocable, non-exclusive, worldwide, royalty-free license to: (i) use, execute, display, copy, perform, modify and prepare derivative works thereof, and (ii) authorize others to do any, some, or all of the foregoing.

9.5 Alpha Pvt. Ltd. systems.—Commencing on the effective date and for the term hereof, Alpha Pvt. Ltd. will provide to Beta Pvt. Ltd., at no charge to Beta Pvt. Ltd., the right to use and access the systems currently used by Alpha Pvt.

Ltd. or its Affiliates, or necessary for Beta Pvt. Ltd. to perform the functions to be performed by Beta Pvt. Ltd. hereunder, including the Software, and any successor systems, as listed in Exhibit E (the “Alpha Pvt. Ltd. systems”) for use in performing services hereunder, (and all necessary support for Beta Pvt. Ltd.’

continued use and access thereof.) Alpha Pvt. Ltd. shall be responsible for obtaining any necessary consents or assignments from any third party licensors of the Alpha Pvt. Ltd. systems prior to the Effective Date to enable Beta Pvt. Ltd.

to use the Alpha Pvt. Ltd. systems in accordance with this section. Beta Pvt. Ltd.

shall use the Alpha Pvt. Ltd. systems only for the purposes of this Agreement and in accordance with any restrictions on such use, which may be provided by Alpha Pvt. Ltd. to Beta Pvt. Ltd. from time to time. Beta Pvt. Ltd. may not copy the Alpha Pvt. Ltd. systems or permit same to be copied. Beta Pvt. Ltd. shall not modify, decompile, translate or adapt, by reverse engineering or otherwise, the Alpha Pvt.

Ltd. systems in any way or use the Alpha Pvt. Ltd. systems to create a derivative work or attempt to create the source code from the object code. Beta Pvt. Ltd.

acknowledges that the Alpha Pvt. Ltd. systems are the sole and exclusive property of Alpha Pvt. Ltd. or its licensors, including ... (name of Alpha’s affiliate) all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto. Title in and to the Alpha Pvt. Ltd.

Systems and any copies thereof shall be and remain the sole and exclusive property of Alpha Pvt. Ltd. or its licensors. Beta Pvt. Ltd. shall not sell, transfer, publish, disclose, display, rent, lease, loan, license, or otherwise make available any portion of the Alpha Pvt. Ltd. Systems to others, and shall not permit any other party access or use of such Alpha Pvt. Ltd. Systems, other than the employees of Beta Pvt. Ltd. who have a need to access or use such Systems for performance of this Agreement. Beta Pvt. Ltd. agrees to secure and protect the Alpha Pvt. Ltd. Systems in a manner consistent with the maintenance of Alpha Pvt. Ltd.’s or its licensors’ rights therein and to take appropriate action by

instruction or Agreement with all persons who are permitted access to the Alpha Pvt. Ltd. Systems to satisfy its obligations hereunder. Beta Pvt. Ltd. acknowledges that the Alpha Pvt. Ltd. Systems contains proprietary trade secrets of Alpha Pvt.

Ltd. or its Affiliates or its licensors and hereby agrees to maintain the confidentiality thereof using at least as great a degree of care as Beta Pvt. Ltd.

uses to maintain the confidentiality of Beta Pvt. Ltd.’ own most confidential information. Beta Pvt. Ltd. agrees to comply with the terms of any Agreement required by any third party licensor of Alpha Pvt. Ltd. Systems, which Beta Pvt.

Ltd. is required to execute by such third Party.

9.6 Use of Third Party content or technology.—Beta Pvt. Ltd. shall not use any Third Party Content or Third Party Technology in the Deliverables or the provision of the Services without Alpha Pvt. Ltd.’s prior written approval and unless: (a) Beta Pvt. Ltd. is expressly permitted to use such third party Technology or Third Party Content pursuant to written Agreements with all third party rights holders; and (b) Beta Pvt. Ltd. has acquired for Beta Pvt. Ltd. and Alpha Pvt. Ltd. and Alpha Pvt. Ltd. Affiliates, all rights, permissions, clearances, releases or other authorizations necessary to use such Third Party Technology and/or Third Party content, as contemplated by this Agreement. Beta Pvt. Ltd. shall be responsible for all payments in connection with the use of Third Party Technology and Third Party content, Alpha Pvt. Ltd. shall have the right to review all Beta Pvt. Ltd.

Agreements with third parties to ensure their acceptability, and Beta Pvt. Ltd. shall deliver such Agreements to Alpha Pvt. Ltd. within five (5) days of Alpha Pvt. Ltd.’s request therefore. For purposes of this Agreement, “Third Party Content” shall mean all content, if any, for which rights, licenses, permissions, or other clearances need to be obtained from any persons other than the parties hereto for the use of such content in the deliverables as contemplated herein. “Third Party Technology” shall mean all systems, tools and/or software, if any (including, without limitation, compilers, diagnostics and data base products) which (i) are required to be licensed from persons other than the parties hereto if the Deliverables require the use of such Third Party Technology, (ii) with which the Deliverables are designed or is based on, or (iii) are required for or used in the provision of the Services.

10. Warranties

10.1 Beta Pvt. Ltd. warranties.—Beta Pvt. Ltd. represents and warrants that:

(a) Beta Pvt. Ltd. shall comply with all applicable laws and regulations, including import/export laws and regulations and the Foreign Corrupt Practices Act, as it may be amended from time to time; (b) in rendering the Services, it and its employees have all necessary rights, authorizations, or licenses to provide the Services hereunder and to provide all related materials and services required under this Agreement; (c) each of its employees assigned to perform services under any Schedule shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be so performed in accordance with this Agreement and the applicable statement of services; (d) Alpha Pvt. Ltd. shall receive free, good and clear title to all Deliverables delivered under this Agreement; and (e) the Deliverables shall be delivered in a manner consistent with good commercial practice, free from defects

in material and workmanship, and shall conform to the Specifications for same as set forth in the Statement of Services and shall, for a period of ninety (90) days from the date of Final Acceptance, meet the functional, performance and reliability requirements of Alpha Pvt. Ltd. as set forth in the applicable Statement of Services.

10.2 Warranty period.—Until ninety (90) days after Final Acceptance for a Phase (the “Warranty Period”), Beta Pvt. Ltd. will, at no charge to Alpha Pvt. Ltd., furnish such materials and services as shall be necessary to correct any defects in the Deliverables, promptly correct any deficiencies which prevent such Deliverables from conforming to the acceptance criteria and correct such deficiency and the effects of such deficiency in prior Phases and Sites. Beta Pvt.

Ltd. warranty service obligations under this section 10.2 shall not apply to the extent that any claimed non-conformity was directly and solely caused by: (a) the improper use of any hardware or software not provided or recommended by Beta Pvt. Ltd., (b) Alpha Pvt. Ltd.’s negligence, fault or improper use of a Deliverable, or (c) modifications to or changes in a Deliverable not made or approved by Beta Pvt. Ltd..

10.3 Additional software warranties.—Beta Pvt. Ltd. represents and warrants that the software Deliverables shall be millennium compliant and that, as of the time of delivery to Alpha Pvt. Ltd., all code as delivered will be free and clear of and contain no threats known as software viruses, salamis, time bombs, logic bombs, Trojan horses, trap doors, or other malicious computer instructions, intentional devices or techniques that can or were designed to threaten, infect, attach, assault, vandalize, defraud, disrupt, damage, disable, or shut down a computer system or any component of such computer system, including its security or user data. Beta Pvt. Ltd. further represents and warrants that each module of all software deliverables and components and functions thereof shall be capable or operating fully and correctly on the combination of the computer hardware, telecommunications equipment, the programming language and/or operating system environment specified in the statement of services. For purposes of this Agreement, millennium compliant means fault-free performance in the processing of date and date related data (including, but not limited to, calculating, comparing, and sequencing). Fault-free performance includes the manipulation of data with dates prior to, through, and beyond ...20.... and successful transition into and performance in and after the year 20.... with the correct system date, without human intervention, including leap year calculations, and provision of correct results when moving forward and backward in time across the year 20...

10.4 Software deliverable reliability.—Software Deliverables shall be subject to performance and reliability warranties set forth in the statement of services to ensure that there is no degradation in the performance or reliability of the software Deliverables. Such warranty shall provide a performance and reliability standard against which the software Deliverables are to be measured during the Acceptance Test and Warranty Period, and the remedies available to Alpha Pvt. Ltd. upon failure of the software Deliverables to meet said standards. Such remedies may include the provision of services and products necessary to make the software Deliverables meet said standards, extension of the Warranty Period, credit toward

future payments, or hold-back of current amounts due, as Alpha Pvt. Ltd. shall determine in its sole discretion.

10.5 Permits.—The parties acknowledge that certain software and technical data to be provided under this Agreement and certain transactions under this Agreement may be subject to export controls under the laws and regulations of the ... and other countries. Beta Pvt. Ltd. will be responsible, as part of the services, for securing all permits, licenses, regulatory approvals and authorizations, whether domestic or international, and including all applicable import/export control approvals (collectively, “Permits”) required for Beta Pvt. Ltd.

to provide the services to Alpha Pvt. Ltd. or its designees and will take all lawful steps necessary to maintain such Permits during the term of this Agreement. Beta Pvt. Ltd. will have financial responsibility for, and will pay, all fees and taxes associated with obtaining such permits. Alpha Pvt. Ltd. will co-operate with Beta Pvt. Ltd. in securing such Permits. If Beta Pvt. Ltd. is not able to secure the Permits in its own name, Alpha Pvt. Ltd. will undertake to secure such Permits at the reasonable direction of Beta Pvt. Ltd. and at Beta Pvt. Ltd.’ expense. Beta Pvt.

Ltd. shall be solely responsible for compliance with all laws and regulations relating to data protection and privacy and/or trans-border data flow.

10.6 Year 20.... services warranty.—Notwithstanding anything in this Agreement to the contrary, Beta Pvt. Ltd. warrants and represents that (i) its ability to provide continuous services as set forth in each Statement of Services will be unaffected by computer problems related to dates beyond ..., 20....; (ii) the Beta Pvt. Ltd.’ computer systems related to the services shall be millennium compliant.

10.7 Additional warranties.—In the Statement of Services, the parties may agree upon warranties which will apply to the Deliverables to be provided, under that Statement of Services, in addition to those set forth in sections 10.1 through 10.4 inclusive (“Additional Warranties”). The warranties required by sections 10.1 through 10.4 inclusive shall apply to all Statements of Services, whether or not a Statement of Services sets forth Additional Warranties.

10.8 Remedies for breach of warranties.—In the event that the Deliverables or Services do not meet the above warranties, Beta Pvt. Ltd. shall provide, at no charge, the necessary Deliverables and services required to attain the levels or standards set forth in said warranties.

10.9 Notice of problem.—In the event that during the term of this Agreement Beta Pvt. Ltd. becomes aware of an event, occurrence, error, defect or malfunction which Beta Pvt. Ltd. reasonably and in good faith anticipates would adversely and materially affect Alpha Pvt. Ltd. or its Affiliates, then Beta Pvt. Ltd. will promptly provide Alpha Pvt. Ltd. with written notice of the event, occurrence, error, defect or malfunction and the adverse effect anticipated by Beta Pvt. Ltd., as well as a proposed remedy therefore.

10.10 Business Disruption.—In performing its Services hereunder, Beta Pvt.

Ltd. will use diligent efforts to perform such services in a manner that minimizes

Ltd. will use diligent efforts to perform such services in a manner that minimizes