VM » Topics » 19.3 IBM Materials

This excerpt taken from the VM 10-Q filed Aug 14, 2008.

19.3 IBM Materials

A. Notwithstanding anything to the contrary in this Agreement, all materials, works and property for which the Intellectual Property is owned, developed or licensed by or on behalf of IBM (i) prior to the Reference Date or (ii) subsequent to the Reference Date but independent of and separate from this Agreement, and all derivative works, enhancements and modifications to the materials, works and property under items (i) and (ii) by any person or entity independent of and separate from this Agreement (other than VMU Modifications as further described below in this Section) shall collectively be included in the IBM



Intellectual Property. Notwithstanding anything to the contrary in this Agreement, IBM is and shall remain the sole owner of all right, title and interests in and to IBM Intellectual Property, including all Intellectual Property therein.

B. Schedule F shall list, as of the Signature Date, the IBM Proprietary Software, IBM Third Party Software and IBM Intellectual Property, if any, that will be incorporated into any Deliverable or that will be necessary to be used by VMU or any VMU Affiliate in order to access or use the Services and access, maintain, modify or use the Deliverables. Any IBM Intellectual Property incorporated into any Deliverable shall remain the property of IBM. During the Term, IBM shall be solely responsible for obtaining, installing, operating and maintaining at its expense any IBM Software (except for the Generally Available IBM Proprietary Software listed on Schedule F as VMU’s financial responsibility which shall be treated as VMU Third Party Software), or IBM Intellectual Property needed to provide the Services or the Deliverables or necessary for VMU to access or use the Services and access, maintain, modify or use the Deliverables including the payment of all applicable fees. Without VMU’s prior written consent, IBM shall not incorporate into any Deliverable any IBM Intellectual Property or IBM Software, even if such software is Generally Available. IBM hereby grants to VMU (for the benefit of itself and VMU Affiliates and Authorized Users) a nonexclusive, irrevocable, fully paid, perpetual and worldwide license to (i) use the IBM Intellectual Property in order to access and use the Services and use, execute, reproduce, display, perform, distribute, create derivative works, and make modifications and improvements to any IBM Intellectual Property (including any IBM Software) that are incorporated into any Deliverables to the extent necessary for VMU or any VMU Affiliate to access and use the Services and access, modify, maintain or use the Deliverables (such modifications and enhancements, “VMU Modifications”) and (ii) authorize others to do any, some or all of the foregoing solely for the benefit of VMU or VMU Affiliates. VMU shall own all right, title and interest in and to any VMU modifications, including all Intellectual Property in and to such VMU modifications.

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