Common use of Proprietary Software Clause in Contracts

Proprietary Software. (a) Part A of schedule 3 accurately identifies and describes: (i) the applicable licence terms for each item of Open Source Code that is contained in, distributed with or used in the development of, any Proprietary Software or from which any Proprietary Software is derived; and (ii) the relevant Proprietary Software to which each such item of Open Source Code relates. (b) No Proprietary Software contains, is derived from, is distributed with, or is being or was developed using, Open Source Code that is licensed under any terms that: (i) impose or could impose a requirement or condition that any Proprietary Software: (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making modifications or derivative works; or (C) be redistributable at no charge; or (ii) otherwise impose or could impose any other material limitation, restriction or condition on the right or ability of any Group Company to use or distribute any Proprietary Software or to enforce Intellectual Property. (c) No Proprietary Software has suffered any material failure in functionality or performance. (d) In relation to the source code for the Proprietary Software (other than any which is the subject of the Licences-ln): (i) the relevant Group Company has in its possession, in a secure repository, a complete and up-to-date copy of the source code for each item of the Proprietary Software, such source code being fully documented in a recognised computer programming language, so as to enable it to be compiled or interpreted into equivalent object code, together with all associated documentation, code, data, libraries, tools and other items and material necessary or desirable to enable a reasonably skilled computer programmer fully to understand, use, reproduce, modify, enhance and maintain the Proprietary Software; (ii) no person (other than the relevant Contributors and any Group Company and its current and duly authorised Employees) has, or has had, any such source code in its possession or control; (iii) there is no agreement (including any licence or escrow agreement) in force under which any third party may become entitled to possess or use any such code; and (iv) no person is entitled to require such an agreement to be entered into by any Group Company.