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Software Agreement Document Package |
Redacted Document Package |
| This agreement is a sample of a document contained in our Software Agreement Document Package. Omitted portions are included in the fully licensed version. Documents are provided in Word and in Rich Text Format (RTF). All documents are conveniently accessed through an E-Book indexing system. |
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SOURCE
CODE ESCROW AGREEMENT
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This Source Code Escrow Agreement (“Agreement”) is
made and entered on this _____ day of ________________, 20____, by and
between __________________, a ______________ [Corporation] (hereinafter
referred to as the “Developer”) and _________________________, a ____________
[Corporation] (hereinafter referred to as the “Licensee”) and ___________________
a _____________ [Corporation] (hereinafter referred to as the “Escrow
Agent”). This Agreement is intended
to supplement the terms of that certain Software License Agreement between
the Developer and the Licensee dated the _____ day of _________________,
20____ (hereinafter “License
Agreement”) to provide for the escrow of the source code relative to
the software programs licensed to the Licensee pursuant to the terms
of the Software License. RECITALS
A.
Developer
has granted to the Licensee a license to use a certain software program,
which such software program is described in more detail in Exhibit “A”
attached hereto and made a part hereof (hereinafter referred to as the
“Software Program”). B.
The
License Agreement grants to the Licensee the right and license to use
the Software Program subject to the limitations and conditions set forth
in the License Agreement. C.
The
License Agreement requires the Developer to deposit the source code
to the Software Program with an Escrow Agent and to enter into this
Escrow Agreement to assure Licensee with access to the Source Code to
the Software Program subject to the terms and conditions of this Escrow
Agreement. D.
The
parties intend that the Source Code shall maintain all protection under
the United States Copyright Act and shall remain the exclusive proprietary
property of the Developer, with access being permitted to the Licensee
only in compliance with the terms of this Escrow Agreement. E.
The
Escrow Agent has agreed to hold the Source Code in escrow and in trust
as the property of the Developer, and to permit access to the Source
Code by the Licensee only in compliance with the terms and conditions
set forth in this Escrow Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the parties, the parties hereby agree
as follows: ARTICLE I APPOINTMENT
OF ESCROW AGENT
Developer hereby appoints, and Escrow Agent hereby accepts such appointment,
to act as escrow agent pursuant to this Agreement and to receive and
hold in trust the Source Code for the Software Program pursuant to the
terms and conditions set forth in this Agreement. ARTICLE II DELIVERY
AND ACCEPTANCE OF SOURCE CODE
Upon execution hereof, Developer shall deli
[Portions
Omitted - included In fully Licensed Version]ow
subject to the terms of this Agreement, a true and complete copy of
the Source Code for the Software Program, together with all documentation
related thereto that is not part of the usual documentation provided
to l [Portions
Omitted - included In fully Licensed Version] The Escrow Agent acknowledges delivery and
receipt of such Source Code and agrees to hold the Source Code pursuant
to he terms of this Agreement. The
parties acknowledge and agree that the Source [Portions
Omitted - included In fully Licensed Version]e
event of any Default Event (as defined herein).
Upon any enhancements to the Software Program that are provided
to the Licensee pursuant to the terms of the License Agreement, the
Developer shall deliver to the Escrow Agent the source Code and documentation
related to such enhancements to be held in escrow by the Escrow Agent
pursuant to the terms hereof. I
[Portions
Omitted - included In fully Licensed Version]
that any such update or enhancement constitutes an entire replacement
of the previous version held by the Escrow Agent, Escrow Agent shall
return the prio [Portions
Omitted - included In fully Licensed Version]per,
retaining only the most recent version of the Source Code.
Escrow Agent shall issue to the Developer a receipt for any Source
Code or enhancements delivered to the Escrow Agent hereunder, together
with a complete and accurate description of the items so delivered.
ARTICLE III DUTIES OF
ESCROW AGENT
Escrow Agent agrees to take reasonable steps to safeguard and protect
the Source Code including segregating and clearly labeling the Source
Code and storing [Portions
Omitted - included In fully Licensed Version]
area. Escrow Agent agrees to
maintain the confidentiality of the Source Code and to take all reasonable
steps to prevent its release to any third party except pursuant to the
terms hereof. Esc [Portions
Omitted - included In fully Licensed Version]cally
agrees that it shall only release the Source Code to the Licensee as
permitted pursuant to the terms of this Agreement. In the event that the Escrow Agent is required
to release the Source Code to the Licensee hereunder, Escrow Agent shall
at all times retain a copy of the So [Portions
Omitted - included In fully Licensed Version]scrow
Agent may make additional copies of the Source Code for archive purposes
and to comply with its obligations hereunder. ARTICLE IV ACCESS TO
SOURCE CODE
Licensee may, at any reasonable time, and upon at lease 10 days prior
written notice to Escrow Agent and Developer, cause an independently
retained computer progr [Portions
Omitted - included In fully Licensed Version]be
mutually acceptable to both the Developer and the Licensee.
All such inspections shall take place at the principal business
office of the Escrow Agent. Developer,
or a representative of the Developer, may be present at the time of
such inspection. ARTICLE V DELIVERY
OF SOURCE CODE TO LICENSEE
Escrow Agent shall hold the Source Code in escrow and shall not deliver
the same to the Licensee except following notification from the Licensee
that a Delivery Event (as defined below) has occurred and all other
terms and conditions of this Agreement have been met.
Upon receipt of such written notice from the Licensee that a
Del [Portions
Omitted - included In fully Licensed Version]n
(10) days following the receipt of such notice to notify the Licensee
in writing that Developer objects to the release of the Source Code
to the Licensee. In the event
that the Developer has not [Portions
Omitted - included In fully Licensed Version]
within ten (10) days after its receipt of the notice from Escrow Agent,
Escrow Agent may presume that the release of the Source Code is proper
and shall immediately deliver the Source Code to the Developer. ARTICLE VI DELIVERY
EVENTS
The following shall constitute Delivery Events permitting the Escrow Agent
to release the Source Code to the Licensee upon compliance with the
terms of this Agreement: (a)
The
Developer materially fails to comply with any support services that
it is contractually required to perform under the terms of the License
Agreement and has not cured [Portions
Omitted - included In fully Licensed Version]e
required support services within thirty (30) days following written
notice of such failure from Licensee to Developer; (b)
The
Developer or its successor or representative rejects or elects to terminate
the License Agreement in violation of the terms thereof, including but
not limited to rejection or [Portions
Omitted - included In fully Licensed Version]of
the United State Code, or under any state receivership or other similar
proceeding; (c)
Developer
(as debtor in possession), or any trustee in a bankruptcy proceeding
relating to the Developer, fails to assume the obligations under the
License Agreement within thirty (30) days following the filing of the
initial petition for bankruptcy; (d)
Substantially
all of the Developer’s busi [Portions
Omitted - included In fully Licensed Version]
are terminated or are discontinued; or (e)
The
Developer is liquidated or dissolve [Portions
Omitted - included In fully Licensed Version]at
make it impractical for the Developer to perform under the License Agreement;
or (f)
Developer
conducts an assignment for the benefit of creditors. ARTICLE VII
DISPUTES REGARDING EXISTENCE
OF A DELIVERY EVENT If the Developer objects
to any notice from Licensee that a Delivery Event has occurred, or if
there is any other dispute regarding the delivery of the Source Code
[Portions
Omitted - included In fully Licensed Version]r
then 30 days from the date of the objection from the Developer, in attempt
to resolve the situation in good faith.
In the event that the situation is not resolved by good faith
negotiations and discussions within 45 [Portions
Omitted - included In fully Licensed Version]e
American Arbitration Association. The arbitrator presiding over the arbitration shall have experience
in computer software licensing and technology issues. The decision of the arbitrator s to whether
a Delivery Event has occurred shall be binding. The arbitrator shall give written notice of his/her decision to
the parties and to the Escro [Portions
Omitted - included In fully Licensed Version]ery
of the Source Code to the Licensee.
All costs of the arbitration, including but not limited to arbitrator
expenses and reasonable attorney fees of the opposing party, shall be
awarded against the non-prevailing party in the arbitration proceeding,
unless the arbitrator determines that there is good cause that such
an award should not issue. ARTICLE VIII
TERMINATION
This Agreement shall remain in effect until terminated pursuant to the
terms hereof. This Agreement
shall terminate upon (i) the date specified in any written agreement
to [Portions
Omitted - included In fully Licensed Version]
written notice from Escrow Agent to Developer and Licensee, (iv) upon
release of the Source Code from the Escrow Agent to the Licensee.
Upon termination of this Agreement, following written demand
from the Developer, the Escrow Agent shall return all copies of the
Source Code to the Developer. In the event the termination is pursuant to
(iii) above, the D [Portions
Omitted - included In fully Licensed Version]use
diligent efforts to identify a mutually acceptable replacement Escrow
Agent who shall join as a party to this Agreement and accept the responsibilities
of Escrow Agent hereunder. ARTICLE IX LIMITATION
OF ESCROW AGENT LIABILITY
Provided that they are acting in good faith and using reasonable judgment,
neither Escrow Agent nor any of its officers, directors, shareholders,
or employees shall be personally liable for any act or omission.
Escrow Agen [Portions
Omitted - included In fully Licensed Version]r
any delays in acting which may occur as a result of the Escrow Agent
consulting with legal counsel regarding any matter relating to its duties
or obligations under this Agreement. Developer and Licensee, and
their respective successors, and assigns, hereby indemnify and hold
Escrow Agent harmless from and against any and all liability resulting
to any party arising from the performance of the Escrow Agent pursuant
to this Agreement and further agree to reimburse Escrow Agent for the
costs of defending a [Portions
Omitted - included In fully Licensed Version]d
severally agree to reimburse the Escrow Agent for any and all costs
and expenses, including reasonable attorney fees, resulting from the
Escrow Agent’s involvement in any dispute between the Developer and
the Licensee or involving the obligations of the Escrow Agent. In the event the Escrow Agent renders services
not provided for in this [Portions
Omitted - included In fully Licensed Version]nt
of any action to recover the Escrow Agent's fees, expenses, or charges
from any party hereto, the Escrow Agent shall be entitled to reasonable
attorneys' fees and costs incurred with respect to any such action.
If at any time the Escrow Agent is in doubts as to its duties or obligations
pursuant to this Agreement, the Escrow Agent may, in its sole discretion,
deposit the Source Code or other item [Portions
Omitted - included In fully Licensed Version]pleader
naming the Developer and the Licensee. Upon filing such interpleader action, Escrow Agent shall be relieved
of all liability under the terms of this Agreement relative to the obligation
that is in doubt or the [Portions
Omitted - included In fully Licensed Version]shall
be entitled to recover its reasonable attorneys' fees and related costs
and expenses incurred in commencing such action.
The Developer and the Licensee hereby submit themselves to the
jurisdiction of said court. Escrow Agent shall be under no obligation or duty to
inquire into the truth of any statements or representations contained
in any notices, certificates, or other documents required or permitt
[Portions
Omitted - included In fully Licensed Version]y
authorized to issue such document, and that all actions necessary to
render any such documents binding on any party thereto have been duly
undertaken. ARTICLE X COMPENSATION OF ESCROW AGENT In consideration of the services to be provided by
Escrow Agent hereunder, Escrow
Agent shall be compensated at the rate of $_____ per year, payable in
equal quarterly installments equal to $_______ per quarter, with such
payments being due and payable on or before the first day of each calendar
quarter during the term hereof, with the first such [Portions
Omitted - included In fully Licensed Version]sible
for making such payments to the Escrow Agent; provided that the Licensee
is not in default under any licensing fee obligations under the License
Agreement, in which case responsibility for paying such fee shall rest
with the Licensee. ARTICLE XI REPRESENTATIONS
AND WARRANTIES OF DEVELOPER
Developer represents and warrants
to the Licensee that (i) the Source Code deposited with the Escrow Agent
will be the most current version of the Licensed Software, (ii) that
the Source Code is and sh [Portions
Omitted - included In fully Licensed Version]amming,
and documentation necessary for the maintenance of the Licensed Programs
by the Licensees upon release of the Source Code pursuant to this Agreement,
except for devices, programming, and documentation commercially available
to the Licensees on reasonable terms through readily known sources other
than the Developer. ARTICLE XII
MISCELLANEOUS
PROVISIONS
Any notification
or written communication required by or contemplated under the terms
of this Agreement shall be in writing and shall deemed to be delivered
if transmitted via Email at the Email addresses [Portions
Omitted - included In fully Licensed Version]tice
of termination of this Agreement which shall be in writing and sent
by United States Mail, Certified Mail, Return Receipt Requested and
shall be deemed to have been delivered five (5) business days after
the date of mailing. Addresses and Email addresses for such notices
shall be: If To Licensee: _______________________________________________ If To Developer: ______________________________________________ If To Escrow Agent: ___________________________________________ In interpreting
the terms of this Agreement, the parties agree that the laws of the
State of ___________ shall be applicable. All suits permitted to be
brought in any court shall be venued in __________ County, State of
____________. This Agreement
contains the entire agreement and understanding of the parties with
respect to the subject matter hereof and supercedes and replaces all
prior discussions, agreements, proposals, understandings, whether orally
or in writing, between the parties related to the subject matter of
this Agreement. This Agreement may be [Portions
Omitted - included In fully Licensed Version]ns
hereof is deemed to be illegal or unenforceable by a court of competent
jurisdiction, the enforceability of effectiveness of the remainder of
the Agreement shall not be effected and this Agreement shall be enforceable
[Portions
Omitted - included In fully Licensed Version]orceable
provision. No party’s waiver of any breach or accommodation to the other
party shall be deemed to be a waiver of any subsequent breach. IN WITNESS WHEREOF, the parties
hereto have duly entered and executed this Agreement as of the day and
year first above written and represent and warrant that the party executing
this Agreement on their behalf is duly authorized. |