Three-Party Escrow Agreement
Among
Developer, one Licensee and Escrow Associates, LLC
This three-party escrow agreement allows the software
licensee conditional access to the source code.
The Licensee, Software Developer and Escrow Associates, LLC all execute
the agreement.
Because our template agreements are the result of
many years of experience in the industry, many of our customers use our escrow
agreement templates as they are written.
Escrow Associates encourages clients to modify the
contracts as necessary to support their specific escrow requirements. As industry experts that have administered
thousands of escrow relationships, we are happy to discuss your transaction and
provide advice. Please contact us
directly at (800)813-3523 or http://www.escrowassociates.com.
Three-Party Escrow Agreement
This Technology Escrow
Agreement (“Agreement”) among Escrow Associates, LLC (“Escrow Associates”), ________________________________
(“Licensee”) and _____________________________ (“Developer”) is effective on
this _____ day of_________________ 200__ (the “Effective Date”).
Recitals
Whereas, Developer licenses technology to Licensee in the form of
software object code (the “Software”) pursuant to a license agreement (“License
Agreement”). The source code is defined as the Software in
source code form, including all relevant documentation and instructions
necessary to maintain, duplicate, and compile the source code (the "Source
Code"). The Source Code is
necessary to maintain and support the Software as defined in the License
Agreement. The Source Code and any other
components Developer provides which are related to building and maintaining the
Software identified on Exhibit B (as the same may be modified herein) are
hereafter referred to collectively as the deposit materials (“Deposit
Materials”).
Whereas,
the purpose of this Agreement is to protect Developer’s ownership and
confidentiality of the Deposit Materials and to protect Licensee’s legitimate
use of the Deposit Materials as defined by the License Agreement. Further, this Agreement is intended to
provide for certain circumstances under which Developer shall be entitled to
receive the Deposit Materials held in escrow by Escrow Associates to continue
its legitimate use and support of the Software.
Whereas, Developer and Licensee hereby designate and appoint Escrow
Associates as the escrow agent under this Agreement.
Escrow Associates hereby accepts such designation and appointment and
agrees to carry out the duties of escrow agent pursuant to the terms and
provisions of this Agreement. Escrow
Associates is not a party to, and is not bound by, any agreement that might be
evidenced by, or might arise out of, any prior or contemporaneous dealings
between Developer and Licensee other than as expressly set forth herein.
Whereas,
the parties desire that this Agreement be an agreement supplementary (together
with any modification, supplement, or replacement thereof agreed to by the
parties) to the License Agreement pursuant to The Bankruptcy and Insolvency Act (
NOW,
THEREFORE, for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, covenant and agree as follows:
1. Deposit Materials
(a)
Initial Deposit - Developer shall submit
the initial Deposit Materials to Escrow Associates within sixty (60) days of
the Effective Date or sixty (60) days after development of the Deposit
Materials is completed. Developer shall complete and deliver with
all Deposit Materials a form as shown herein as Exhibit B, which shall then
become part of this Agreement. Escrow
Associates shall notify Licensee within ten (10) days of receipt of the initial
Deposit Materials. Escrow Associates has
no obligation with respect to the initial Deposit Materials for delivery,
functionality, completeness, performance or initial quality.
(b)
Deposit Material Updates -
Developer shall submit updates to the initial Deposit Materials to Escrow
Associates within sixty (60) days of any material modification, upgrade or new
release of the Software. Developer shall complete and deliver with
all updates to the Deposit Materials an amended Exhibit B form, which shall
additionally become part of this Agreement.
Escrow Associates shall notify Licensee within ten (10) days of receipt
of updates to the Deposit Materials.
Escrow Associates has no obligation with respect to the updates to the
Deposit Materials for delivery, functionality, completeness, performance or
initial quality.
(c)
Electronic Deposit – In the event Developer
elects to utilize electronic means to transfer the Deposit Materials to Escrow
Associates, whether through a service provided by Escrow Associates or other
means, Escrow Associates shall not be liable for transmissions that fail in
part or in whole, are lost, or are otherwise compromised during
transmission. Furthermore, Escrow
Associates shall not be liable for any subsequent services that may or may not
be delivered as a result of a failed transfer.
Escrow Associates shall not be liable to Developer or Licensee for any
encrypted update, or any part thereof, that is transmitted over the Internet to
Escrow Associates’ FTP Site but is not received in whole or in part, or for
which no notification of receipt is given.
(d)
Duplication of Deposit Materials - Escrow
Associates may duplicate the Deposit Materials only as necessary to comply with
the terms of this Agreement. Escrow Associates
at its sole discretion may retain a third party for the purpose of duplicating
the Deposit Materials only as necessary to comply with the terms herein. All duplication expenses shall be borne by
the party requesting duplication.
(e) Deposit
Material Verification - Escrow Associates may be retained by separate
agreement or by alternative means, to conduct a test of the Deposit Materials
to determine the completeness and accuracy of the Deposit Materials. Escrow Associates shall not be liable for any
actions taken on the part of any third party with regards to the Deposit
Materials.
2. Term
(a) Term of Agreement – The
term of this Agreement shall be for a period of one (1) year from the Effective
Date. At the end of the initial and each
subsequent term, this Agreement shall automatically renew for an additional one
(1) year term unless terminated according to the terms herein.
(b) Termination of Agreement
– This Agreement may be terminated by written mutual consent of Developer and
Licensee provided that one of the following occurs:
i.
The License Agreement has been terminated or has
expired, or
ii.
The Deposit Materials have been released in
accordance with the terms hereof.
(c) Termination for Non-Payment
– In the event that full payment of any or all fees due to Escrow Associates
under this Agreement have not been received by Escrow Associates within thirty
(30) days of the date payment is due, Escrow Associates will notify all parties
hereto of the delinquent fees. If the
delinquent fees are not received within thirty (30) days of the delinquency
notification, Escrow Associates shall have the right to terminate this
Agreement and destroy the Deposit Materials.
(d) Return of Deposit Materials
– Upon termination of this Agreement for any reason other than in the event all
Deposit Materials have been released in accordance with the terms of Section 6
herein, Escrow Associates shall return the Deposit Materials to Developer via
commercial courier to the address of Developer shown in this Agreement, provided
that all fees due Escrow Associates are paid in full. If two (2) attempts to return Deposit
Materials via commercial courier to Developer fail or Developer does not accept
the Deposit Materials, Escrow Associates shall destroy the Deposit Materials.
3. Fees
(a) Payment - Upon receipt
of signed Agreement or initial Deposit Materials, whichever comes first, Escrow
Associates will submit an initial invoice to Licensee and Developer for amount
shown on Exhibit A attached hereto. If
payment is not received, Escrow Associates shall have no obligation to perform
its duties under this Agreement.
Licensee and Developer agree to pay to Escrow Associates all additional
fees for services rendered related to this Agreement as shown on Exhibit
A. The fee for any service that is not
expressly covered in Exhibit A shall be established by Escrow Associates upon
request. All fees are due in advance of
service and are non-refundable. Escrow
Associates may amend Exhibit A at any time upon sixty (60) days written notice
to Licensee and Developer.
(b) Currency
- All fees are in Canadian dollars and payment must be rendered in Canadian
dollars unless otherwise agreed to in advance by Escrow Associates.
4. Indemnification - With
the exception of gross negligence, willful misconduct or intentional
misrepresentation on behalf of Escrow Associates, Developer and Licensee shall,
jointly and severally, indemnify and hold harmless Escrow Associates and each
of its directors, officers, agents, employees, members and stockholders
("Escrow Associates Indemnities") absolutely and forever, from and
against any and all claims, actions, damages, suits, liabilities, obligations,
costs, fees, charges, and any other expenses whatsoever, including reasonable
attorneys' fees and costs, that may be asserted against any Escrow Associates
Indemnitee in connection with this Agreement or the performance of Escrow
Associates or any Escrow Associates Indemnitee hereunder.
5. Developer’s Representations and Warranties
(a) The Deposit Materials as delivered to Escrow Associates
are a copy of Developer’s proprietary information corresponding to that
described in Exhibit B and are capable of being used to generate the
Software. Developer shall update the Deposit
Materials as provided for in the License Agreement and/ or as provided for
herein. The Deposit Materials shall
contain all information necessary to enable a reasonably skilled programmer or
analyst to understand, maintain and correct the Deposit Materials.
(b) Developer owns the Deposit Materials
and all intellectual property rights therein free and clear of any liens,
security interests, or other encumbrances.
6. Release of Deposit Materials
(a) Release - The Deposit
Materials, including any copies thereof, will be released to Licensee after the
receipt of the written request for release only in the event that the release
procedure set forth in Section 6 is followed and:
i. Developer notifies Escrow Associates in
writing to effect such release; or
ii. Licensee makes written request to Escrow
Associates; and
a. Licensee asserts that Developer has failed
in a material respect under the License Agreement; and
b. Licensee includes a written statement that
the Deposit Materials will be used in accordance with the terms of the License Agreement;
and
c. Licensee includes specific instructions for
the delivery of the Deposit Materials.
(b) Developer Request for
Release - If the provisions of Section 6(a)(i) are
met, Escrow Associates will release the Deposit Materials to Licensee within ten
(10) business days.
(c) Licensee Request for
Release - If the provisions of Section 6(a)(ii)
are met, Escrow Associates will within ten (10) business days forward a
complete copy of the request to Developer.
Developer shall have thirty (30) days to make any and all objections to
the release known to Escrow Associates in writing. If after thirty (30) days Escrow Associates
has not received any written objection from Developer, Escrow Associates shall
release the Deposit Materials to Developer as instructed by Developer.
(d) Developer Objection to
Release - Should Developer object to the request for release by Licensee in
writing, Escrow Associates shall notify Licensee in writing within ten (10)
business days of Escrow Associates receipt of said objection and shall notify
both parties that there is a dispute to be resolved pursuant to Section 7 (Arbitration)
of this Agreement. Escrow Associates
will continue to hold the Deposit Materials without release pending (i) joint
instructions from Developer and Licensee; (ii) dispute resolution according to
Section 7 (Arbitration); or (iii) order from a court of competent jurisdiction.
(e) Grant of License to Deposit
Materials – As of the Effective Date, Developer hereby grants to Licensee,
a non-exclusive, worldwide, perpetual, paid in full license, to install, use,
copy, publicly perform and digitally perform, modify and create derivative
works from the Deposit Materials delivered by Escrow Associates under this
Section, for the sole purpose of continuing the benefits afforded to Licensee
under this Agreement, including the development of patches and upgrades solely
for Licensee’s internal use.
(f) Restrictions on Use –
The following restrictions shall apply to Deposit Materials delivered to
Licensee: (i) Licensee shall not copy
the Deposit Materials other than as necessary for installation of Licensee’s equipment
and for backup copies on Licensee’s equipment, (ii) Licensee will keep the
Deposit Materials in a secure, safe place when not in use, (iii) Licensee
agrees to use the Deposit Materials under carefully controlled conditions in
accordance with, and for the purposes of, this Agreement, (iv) Licensee shall
be obligated to maintain the confidentiality of the released Deposit Materials
in accordance with Section 8, and (v) Licensee agrees to treat, handle, and
store the Deposit Materials in the same manner and with the same care as it
treats its most sensitive and valuable trade secrets.
7. Arbitration - Except as
expressly provided for herein, any dispute or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by a single arbitrator according The
Arbitrations Act (Ontario), who shall apply __________law. Judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Developer and Licensee(s) jointly agree to
reimburse Escrow Associates for any and all costs incurred as a result of any
Arbitration including attorney’s fees.
The arbitrator(s) shall award attorneys’ fees and costs to the
prevailing party.
8. Confidentiality – Except as otherwise required to
carry out its duties under this Agreement, Escrow Associates shall hold in
strictest confidence and not permit any third party access to nor otherwise
use, disclose, transfer or make available the Deposit Materials except as
otherwise provided herein, unless consented to in writing by Developer.
9. Limitation of Liability - Under no circumstance
shall Escrow Associates be liable for any special, incidental, or consequential
damages (including lost profits) arising out of this Agreement even if Escrow
Associates has been apprised of the possibility of such damages. In performing any of its duties hereunder,
Escrow Associates shall not incur any liability to any party for any damages,
losses, or expenses, except for willful misconduct or gross negligence on the
part of Escrow Associates, and it shall not incur any liability with respect to
any action taken or omitted in reliance upon any written notice, request,
waiver, consent, receipt or other document which Escrow Associates in reasonably
good faith believes to be genuine.
10. Notices – Notices shall be deemed received on the
third business day after being sent by first class mail, or on the following
day if sent by commercial express mail. All
notices under this Agreement shall be in writing and addressed and sent to the
person(s) listed in the space provided below:
Developer
Company: ________________________________________________________
Contact: ______________________________Title:_______________________
Address: _________________________________________________________
City, State, Zip: ___________________________________________________
Telephone: ____________________________Fax::_______________________
Email: ___________________________________________________________
Billing Contact:
_________________________Title:______________________
Address:
________________________________________________________
City, State, Zip: ___________________________________________________
Telephone:
___________________________Fax::_______________________
Email:
__________________________________________________________
Purchase Order (if applicable):
______________________________________
Licensee
Company: _______________________________________________________ Contact: ______________________________Title:_______________________
Address: ________________________________________________________
City, State, Zip: ___________________________________________________
Telephone: _____________________________Fax: _____________________
Email: __________________________________________________________
Billing Contact:
_________________________Title:______________________
Address:
________________________________________________________
City, State, Zip:
___________________________________________________
Telephone:
___________________________Fax::_______________________
Email:
__________________________________________________________
Purchase Order (if applicable): ______________________________________
Escrow Associates
Attn: Contracts Administration
1010 Huntcliff,
Telephone: 800-813-3523
Fax: 770-518-2452
Email: info@escrowassociates.com
11. Miscellaneous
(a) Counterparts - This Agreement may be
executed in any number of multiple counterparts, each of which is to be deemed
an original, and all of such counterparts together shall constitute one and the
same instrument.
(b) Entire Agreement - This
Agreement supersedes all prior and contemporaneous letters, correspondences,
discussions and agreements among the parties with respect to all matters
contained herein, and it constitutes the sole and entire agreement among them
with respect thereto.
(c) Limitation of Effect -
This Agreement pertains strictly to the escrow services provided for herein and
does not modify, amend or affect any other contract or agreement of one or more
of the parties. The terms and provisions
of the License Agreement, as the same may be physically modified by the terms
and provisions hereof, shall continue in full force and effect and be binding
upon and inure to the benefit of the parties hereto, their legal
representatives, successors and assigns.
(d) Modification
- This Agreement shall not be altered or modified without the express written consent of all parties.
(f) Survival of Terms - All obligations of the
parties intended to survive the termination of this Agreement, including
without limitation, are the provisions of paragraphs 2 (Term), 3 (Fees), 4
(Indemnification), 7 (Arbitration), 9 (Limitation of Liability), and 11
(Miscellaneous) which shall survive the termination of this Agreement for any
reason.
(g) Governing Law - This Agreement shall be governed
by the laws of the Province of ___________.
(h) Time of the Essence -
Time is of the essence in this Agreement.
(i) Successors and Assigns - This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
parties, provided, however, that Licensee shall have no right to assign any
rights hereunder or with respect to the Deposit Materials except as permitted
with respect to assignment of Licensee’s rights under the License Agreement.
(Signatures are on following page. Remainder of the page intentionally left
blank.)
IN WITNESS
WHEREOF, the parties have executed this Agreement by and through their duly
authorized agents as of the Effective Date.
Developer
Signature: _____________________________________
Name: ________________________________________
Title: _________________________________________
Company: _____________________________________
Date: _________________________________________
Contract Negotiated by: __________________________
Negotiator Telephone: ____________________________
Licensee
Signature: _ ____________________________________
Name: ________________________________________
Title: __________________________________________
Company: ______________________________________
Date: __________________________________________
Contract Negotiated by: ___________________________
Negotiator Telephone: ____________________________
Escrow
Associates, LLC
Signature: ______________________________________
Name: _________________________________________
Title: __________________________________________
Date: __________________________________________
Exhibit A
Schedule of Fees
(Insert Appropriate Fee Schedule)
Exhibit B
Deposit Materials
Please complete an Exhibit B document for the Deposit
Materials to be escrowed under this account. Enclose a copy of this Exhibit B with the Deposit
Materials and retain a copy for your records. Contact us for details on electronic
depositing, or ship the Deposit Materials via commercial courier to Escrow
Associates at the following address:
Attn: Vault
Manager
Escrow
Associates, LLC
1010
Huntcliff,
1-800-813-3523
Company Name(s): __________________________________________________
Account Number:
___________________________________________________
Product Name & Version: _____________________________________________
Media Description
Quantity Type Description
/ Label
____ CD-ROM ___________________________
____ DAT/DDS Tape ___________________________
____ Documentation ___________________________
____ Other ___________________________
Deposit Prepared by: ____________________________
Date: ____________________________
E-mail: ____________________________
Escrow Associates has inspected and accepted the above Deposit
Materials.
Signed: ___________________________
Name: ____________________________
Date: _____________________________