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Software Source Code Escrow Agreement

VIEWS: 174 PAGES: 12

This document is intended to be used in conjunction with a previously executed Software Licensing Agreement between two parties. This document should be used when a Licensor and a Licensee agree that a software's source code should be placed with an escrow agent for security purposes. Under the Software Licensing Agreement, the Licensor granted the Licensee the right to use certain software described in more detail under "Exhibit A" of this agreement. This agreement can be used by small businesses or other entities that have entered into an agreement that requires the software's source code to be placed with an escrow agent.

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									This document is intended to be used in conjunction with a previously executed
Software Licensing Agreement between two parties. This document should be used
when a Licensor and a Licensee agree that a software's source code should be placed
with an escrow agent for security purposes. Under the Software Licensing Agreement,
the Licensor granted the Licensee the right to use certain software described in more
detail under "Exhibit A" of this agreement. This agreement can be used by small
businesses or other entities that have entered into an agreement that requires the
software's source code to be placed with an escrow agent.
         SOFTWARE SOURCE CODE ESCROW AGREEMENT

This Software Escrow Agreement (hereinafter referred to as the “Agreement”) is made and
effective on this _______________ day of __________________, 20________
by and between ________________ of ____________________________ (hereinafter referred
to       as    the     “Escrow      Agent”)        and       __________________      of
_____________________________________ (hereinafter referred to as the “Licensor”) and
_________________ of _________________________________ (hereinafter referred to as the
“Licensee”)

                                                     RECITALS

WHEREAS, Licensor and Licensee have entered into a Software License Agreement dated
_______________ (hereinafter referred to as the “License”);

WHEREAS under the License Agreement, the Licensor has granted Licensee the right and
license to use certain proprietary software and other materials, which is described in more detail
in Exhibit A attached hereto and made a part hereof (hereinafter referred to as the “Software”);

WHEREAS, Licensor wishes to deposit the Software source code in escrow to be held by
Escrow Agent in accordance with the terms and conditions set forth in this Agreement; and

WHEREAS the Escrow Agent has agreed to hold the Software source code in escrow and in
trust in accordance with the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties do hereby agree as follows:


I. APPOINTMENT OF ESCROW AGENT

1.1. The Licensor and the Licensee hereby appoints the Escrow Agent to hold the Software in
accordance with the terms and conditions of this agreement and the Escrow Agent agrees and
accepts such appointment.


II. ESCROW FEES

2.1. In consideration for the services to be performed by the Escrow Agent, the Licensor agrees
to pay the Escrow Agent an amount as set forth in Exhibit B attached hereto and made a part
hereof. Licensor shall pay the amount due within thirty (30) days of receipt of Escrow Agent’s
invoice.



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2.2 In the event of any default in the payment of escrow fees, Escrow Agent will give Licensor
and Licensee _________ (_____) days notice. In the event if the Licensor does not make
payment of the escrow fees with the ____________ (_____) day notice period, Escrow Agent
shall have the right to terminate this Agreement and destroy the Software or, at the request of the
Licensee, release and deliver the Software to the Licensee.


III. TERM

3.1 This Agreement shall commence on the date hereinabove written and shall continue in full
force and effect so long as the License remains in full force and effect, unless this Agreement is
terminated as hereinafter set out.


IV. DEPOSIT OF ESCROW

4.1. Upon the execution of this Agreement and the payment of all setup and deposit fees (if any)
by Licensor, Escrow Agent shall open a Deposit Account for Licensor.

4.2. Licensor shall deliver a true and complete copy of the Software including but not limited to
text, data, images, animation, graphics, video and audio segments and source and object code
and user and system documentation of all Software licensed to Licensee (collectively, the
“Escrow Materials”). The Escrow Agent agrees to hold the Escrow Materials pursuant to the
terms of this Agreement.

4.3. Licensor is solely responsible for maintaining the Escrowed Materials current and updated.
Upon any upgradations or enhancements to the Escrow Materials that are provided to the
Licensee pursuant to the License agreement, the Licensor shall deliver to the Escrow Agent, to
be placed in escrow hereunder, such revised Escrow Materials. Any such update or enhancement
constitutes an entire replacement of the previous version held by the Escrow Agent, Escrow
Agent shall return and release to Licensor in exchange for such revised Escrow Materials all
outdated, obsolete or previously escrowed Materials.


V. DUTIES OF ESCROW AGENT

5.1 Escrow Agent shall be responsible for the following:

    a) Escrow Agent shall take reasonable steps to safeguard and protect the Escrow Materials
       including segregating and clearly labeling the Escrow Materials and storing in a climate
       controlled, secured storage area under the control of the Escrow Agent.

    b) Escrow Agent agrees to maintain the confidentiality of the Escrow Materials and to take
       all reasonable steps to prevent its release to any third party except pursuant to the terms
       hereof.



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    c) Escrow Agent shall not furnish Escrow Materials to any person than the Licensor except
       pursuant to an order of a court of competent jurisdiction.

    d) Escrow Agent shall only release the Escrow Materials to the Licensee as permitted
       pursuant to the terms of this Agreement.

    e) In the event that the Escrow Agent is required to release the Escrow Materials to the
       Licensee hereunder, Escrow Agent shall at all times retain a copy of the Escrow
       Materials.

    f) Escrow Agent may make additional copies of the Escrow Materials for archive purposes
       only and to comply with its obligations hereunder.


VI. INSPECTION

6.1 Either Licensor or Licensee, accompanied by an employee of Escrow Agent, shall be entitled
to inspect the physical status and condition of the Escrow Materials upon reasonable notice and
during reasonable business hours, provided that Escrow Materials may not be changed by either
Licensor or Licensee during such inspection, except as provided otherwise herein. If Licensee
finds that the Escrow materials are deficient, Licensor will rectify immediately.


VII. RELEASE AND DELIVERY OF ESCROW MATERIALS

7.1 The following shall constitute Release Events permitting the Escrow Agent to release the
Escrow Materials to the Licensee:

    a) Any affirmative act of insolvency by Licensor, or the filing by Licensor of any petition or
       action under any bankruptcy, receivership, insolvency, reorganization, dissolution,
       liquidation or other similar proceedings instituted by or against Licensor or against all or
       any part of its property under the Federal Bankruptcy Code or other law of the United
       States or of any other competent jurisdiction ; or

    b) Licensor has terminated, ceased or discontinued its business; or

    c) the filing of any involuntary petition under any bankruptcy statute against Licensor, or
       the appointment of any receiver or trustee to take possession of the properties of
       Licensor, unless such petition or appointment is set aside or withdrawn or ceases to be in
       effect within thirty (30) days from the date of said filing or appointment; or

    d) Licensor has made an assignment for the benefit of creditors.

    e) Licensor has an adjudication, judgment, order or award to the effect that Licensor has
       failed to provide the maintenance or modification obligations required of it under the
       Lease agreement

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    f) the subjection of any of Licensor’s property to any levy, seizure, assignment, application
       or sale for or by any creditor or governmental agency.

7.2 For the release of the Escrow Materials, the Licensee shall give thirty (30) days written
notice to the Escrow Agent and Licensor specifying the Release Event in question. If Licensor
refutes the occurrence of the Release Event, it shall give written notice to Escrow Agent and
Licensee prior to the expiry of the thirty (30) day period and this Agreement will remain in full
force and effect. If Licensor does not give written notice of its refutation to Escrow Agent and
Licensee prior to the expiry of the thirty (30) day period, Escrow Agent shall release and deliver
the Materials held in escrow to Licensee.


VIII. NO WARRANTY

8.1. The Escrow Materials are provided on an "as is" basis. Licensor disclaims any express or
implied warranty of merchantability or fitness for a particular purpose.

8.2 Licensor warrants that the Escrow Materials deposited with Escrow Agent under this
Agreement are complete and accurate copies of the Source Code on a computer magnetic media
used by Licensor in creating and operating the Software.


IX. TERMINATION

9.1 In the event if Licensor desires to terminate this Agreement, Licensor shall give thirty (30)
days written notice to Escrow Agent and Licensee. Licensee can object to such termination by
giving written notice of its objection to Escrow Agent and Licensor prior to the expiry of the
thirty (30) day period and this Agreement will remain in full force and effect. If Licensee does
not give written notice of its objection prior to the expiry of the thirty (30) day period, this
Agreement shall be deemed terminated and Escrow Agent shall release and deliver the Materials
held in escrow to Licensor.

9.2 The occurrence of any of the following shall constitute an event of default on the part of
Escrow Agent:

    a) any breach of any term or provision of this Agreement by Escrow Agent, whether or not
       material;

    b) any false or misleading representation or warranty made by Escrow Agent;

    c) any affirmative act of insolvency by Escrow Agent, or the filing by Escrow Agent of any
       petition or action under any bankruptcy, receivership, insolvency, reorganization,
       dissolution, liquidation or other similar proceedings instituted by or against Escrow
       Agent or against all or any part of its property under the Federal Bankruptcy Code or
       other law of the United States or of any other competent jurisdiction;

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    d) the filing of any involuntary petition under any bankruptcy statute against Escrow Agent,
       or the appointment of any receiver or trustee to take possession of the properties of
       Escrow Agent, unless such petition or appointment is set aside or withdrawn or ceases to
       be in effect within thirty (30) days from the date of said filing or appointment;

    e) the subjection of any of Escrow Agent’s property to any levy, seizure, assignment,
       application or sale for or by any creditor or governmental agency.

9.3 In the event of any default by the Escrow Agent, Licensee may continue with this
Agreement, cancel or terminate this Agreement and/or have recourse to any other right or
remedy available at law or in equity. Upon Licensee’s election to cancel or terminate this
Agreement, Licensor and Licensee shall enter into a new escrow agreement with a mutually
agreed-upon third party escrow agent. Any and all terms and conditions stated herein shall,
without modification, be incorporated into the new escrow agreement.

9.4 Upon termination of this Agreement, Escrow Agent shall destroy, return or otherwise deliver
the Escrow Materials in accordance with Licensor’s instructions.


X. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

10.1 Escrow Agent represents and warrants that:

    a) It is an independent third party in respect to the Licensor and Licensee and is not an
       affiliated, associated or related entity to Licensor or Licensee;

    b) It has the right and capacity to enter into this Agreement and fully perform all of its
       obligations and provide the services hereunder;

    c) It shall use commercially reasonable efforts to keep the Materials in safe keeping and
       perform its obligations as Escrow Agent in accordance with the terms of this Agreement;

    d) It shall not disclose to any third party or make use of the Materials without the express
       written approval of Licensor and Licensee.


XI. RESPONSIBILITIES AND LIABILITIES OF ESCROW AGENT

11.1. Escrow Agent shall not be liable under this Agreement with respect to the condition or the
contents of the Escrow Materials, or for any action taken or omitted in good faith and in the
exercise of Escrow Agent's reasonable good judgment, or for any other person for any harm that
results from any act or omission of Escrow Agent in connection with its serving as Escrow Agent
except for Escrow Agent’s willful misconduct or conduct found to be negligent, or conduct in
disregard of the terms of this Agreement.



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11.2 Escrow Agent may rely and act in reliance upon and shall be protected in relying upon any
instruction, order or instrument reasonably believed by it to be genuine and to have signed or
represented by the Licensor or the Licensee.


XII. INDEMNIFICATION

12.1 Licensor and Licensee shall jointly and separately indemnify and hold Escrow Agent
harmless of and from any claims, actions, suits or damages, whether in contract or in tort, any
loss, liability or expense imposed or incurred by Escrow Agent, including penalties, attorneys'
fees, court costs and related expenses, as a result of or in connection with the rendering of its
services as Escrow Agent under this Agreement, except for any loss liability or expenses
suffered as a result of Escrow Agent’s negligent or intentional acts.

12.2 Escrow Agent shall indemnify and hold harmless the Licensor and the Licensee from any
and all damages, costs, liability, expenses, including penalties, attorneys' fees, court costs and
related expenses, suffered by Licensor and/or Licensee as result of any breach of its
representations and warranties.


XIII. NOTICES

13.1 Any notice required or permitted to be given hereunder shall be in writing and shall be
deemed given (i) when delivered personally to any officer of the party being notified; or (ii) on
the third business day after being sent by registered or certified mail, postage prepaid, facsimile
telecopier, addressed as follows:

To Licensor: __________________
____________________________
____________________________

To Licensee: __________________
____________________________
____________________________

To Escrow Agent: __________________
____________________________
____________________________

13.2. Any party may change its respective address by giving ten (10) days' written notice to the
other parties.


XIV. ARBITRATION




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14.1 Any dispute arising out of this agreement shall be resolved and determined by arbitration
under the then current rules of the American Arbitration Association. The arbitration proceedings
shall be held in _______________.


XV. FORCE MAJEURE

15.1 No party hereto shall be responsible for any losses or damages to any other party
occasioned by delays in the performance or non-performance of any of its obligations when
caused by Acts of God, strike, acts of war, inability of supplies or material or labor or any other
cause beyond the reasonable control of the non-performing party.


XVI. MISCELLANEOUS

16.1. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of ____________.

16.2. This Agreement constitutes the entire Agreement between the parties concerning the
subject matter hereof, and will supersede all previous communications, representatives,
understandings and agreements, either oral or written, between the parties.

16.3. In the event if any provision of this Agreement is held by any court to be invalid or
unenforceable, that provision will be deemed severed from this Agreement and any remaining
provisions will continue in full force.

16.4. No party may assign or otherwise transfer this Agreement without the written consent of
the other parties.This Agreement shall be binding upon and inure to the benefit of the parties,
their respective successors and assigns. This Agreement may be amended or modified at any
time, or from time to time only in writing executed by all the parties hereto.

16.5 Escrow Agent shall not use the name, trade name, service marks, trademarks, trade dress or
logo of Licensor or the Licensee in any form of publicity, whether as a press release, a brochure,
a verbal announcement, an advertisement or any similar activity without Licensor or Licensee’s
written consent, respectively.

16.6 The failure or delay of the Licensor or the Licensee to insist, in any one or more instances,
upon the performance of any of the terms, covenants or conditions of this Agreement or to
exercise any right, power or privilege under this Agreement, including, but without limiting the
generality of the foregoing, rights, powers or privileges arising from course of performance,
course of dealing and usage of trade, shall not operate or be construed as a relinquishment of
future performance under this Agreement or as a waiver or modification of any of the same or
similar rights, powers or privileges in the future, and the obligation of the Licensor and the
Licensee with respect to such future rights or performance shall continue in full force and effect
as if such failure or delay had never occurred.



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16.7. Licensor and Licensee acknowledge that this Agreement is an "agreement supplementary
to" the License Agreement as provided in section 365(N) of Title II, United States code (The
"Bankruptcy Code"). Licensor acknowledges that if Licensor as a debtor in possession or a
trustee in bankruptcy in a case under the bankruptcy code rejects the License Agreement of this
Escrow Agreement, Licensee may elect to retain its rights under the License Agreement and this
Escrow Agreement as provided in section 365(N) of the bankruptcy code. Upon written request
of Licensee to Licensor or the bankruptcy trustee, Licensor or such bankruptcy trustee shall not
interfere with the rights of Licensee as provided in the License Agreement and this Escrow
Agreement, including the right of Licensee to obtain the Escrow material from the Escrow agent
and to use such Escrow material as set forth herein.

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written.

LICENSOR:

By:___________________________________

Title:_________________________________


LICENSEE:

By:___________________________________

Title:_________________________________

ESCROW AGENT:

By:__________________________________

Title:________________________________




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Exhibit A

Software




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Exhibit B

Escrow Fees




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