Two-Party
(Master) Agreement
Among
Software Developer and Escrow Associates, LLC
The two-party escrow agreement allows numerous
licensees and software products to be protected under a single escrow contract
with a single set of escrow conditions.
Future additions and changes to this escrow arrangement
can be made under the discretion of the Developer.
Multiple
licensee service levels can be managed under a single escrow agreement, an industry
exclusive service by Escrow Associates, LLC.
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.
Two-Party
Escrow Agreement
This Technology Escrow
Agreement (“Agreement”) between Escrow Associates, LLC (“Escrow Associates”)
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 a 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 Licensee 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
hereby designates and appoints 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 Title 11 United States Bankruptcy
Code Section 365(n).
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 all applicable parties 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 all applicable parties 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. Licensee(s)
- From time to time, Developer may, at its sole discretion, add or remove
Licensee(s) to this agreement utilizing the Exhibit C form herein. Any current Licensee shall have the right to
request a release of the Deposit Materials only if (i) Licensee is a party to a
License Agreement with Developer that is in force and not in default, and (ii)
all fees due are paid to Escrow Associates.
3. 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 as follows:
i.
Developer provides written notice to Escrow
Associates of its desire to terminate the agreement, 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 by
Developer under this Agreement have not been received by Escrow Associates
within thirty (30) days of the date payment is due, Escrow Associates will
notify Developer of the delinquent fees.
If the delinquent fees are not received within thirty (30) days of the
delinquency notification, Escrow Associates shall notify Licensee of the option
to remit payment of the fees. If the
delinquent fees are not received within ninety (90) days of the delinquency
notification, Escrow Associates shall have the right to terminate this
Agreement and destroy 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 7
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.
4. Fees
(a) Payment - Upon receipt
of signed Agreement or initial Deposit Materials, whichever comes first, Escrow
Associates will submit an initial invoice to 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. Developer agrees
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
Developer.
(b) Currency - All fees are
in U.S. dollars and payment must be rendered in U.S. dollars unless otherwise
agreed to in advance by Escrow Associates.
5. 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.
6. 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.
7. 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 7 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 7(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 7(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 Licensee as
instructed by Licensee.
(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 8 (Arbitration)
of this Agreement. Escrow Associates
will continue to hold the Deposit Materials without release pending (i)
instructions from Developer; (ii) dispute resolution according to Section 8
(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 9, 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.
8. 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 in Atlanta, Georgia by arbitration
administered by the American Arbitration Association in accordance with its
Commercial [or other] Arbitration Rules [including the Emergency Interim Relief
Procedures], and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Developer and Licensee 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.
9. 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.
10. 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.
11. 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): ______________________________________
Escrow
Associates
Attn: Contracts Administration
1010 Huntcliff,
Telephone: 800-813-3523
Fax: 770-518-2452
Email:
info@escrowassociates.com
12. 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.
(e) Bankruptcy Code - This Agreement shall be
considered an agreement supplementary (together with any modification,
supplement, or replacement thereof agreed to by the parties) to the License
Agreement pursuant to Title 11 United States Bankruptcy Code Section 365(n).
(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 3 (Term), 4 (Fees), 5
(Indemnification), 8 (Arbitration), 10 (Limitation of Liability), and 12
(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 state 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 Licensees’ rights
under the License Agreement.
(Signatures are on following
page. Remainder of this 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: _____________________________________
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 stored 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: _____________________________
Exhibit C
Standard Licensee Addition Form
Licensee #1
Company Name: _____________________________________________________
Contact: ____________________________________________________________
Address: ____________________________________________________________
City, State, Zip: _______________________________________________________
Telephone: __________________________Fax: _____________________________
E-mail: ______________________________________________________________
Applicable Product(s):
__________________________________________________
Licensee #2
Company Name: ______________________________________________________
Contact: _____________________________________________________________
Address: ____________________________________________________________
City, State, Zip: _______________________________________________________
Telephone: __________________________Fax: _____________________________
E-mail: ______________________________________________________________
Applicable Product(s): __________________________________________________
(copy as
necessary)
Rider C
Registered Licensee Addition Form
Whereas, _________________ (“Developer”) and Escrow
Associates have entered into a two-party escrow agreement dated________________,
200__ (“The Agreement”).
Whereas, Developer, ____________________ (“Registered Licensee“)
and Escrow Associates agree to modify the terms of The Agreement as follows:
1.
(insert
modification)
2.
(insert
modification)
3.
(insert
modification)
4.
(insert
modification)
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 to The Agreement and the
modifications herein:
Developer Escrow
Associates, LLC
Signature:
____________________________ Signature:
_____________________________
Name:
_______________________________ Name:
________________________________
Title:
_________________________________ Title:
_________________________________
Date:
_________________________________ Date:
_________________________________
Registered Licensee
Signature:
______________________________
Name:
_________________________________
Title:
__________________________________
Company: ______________________________
Address: ________________________________
City,
State, Zip: ___________________________
Date:
__________________________________
Telephone: ________________________Fax: ___________________________
E-Mail: ____________________________________________________________
Applicable Product(s):
_________________________________________________