Two-Party
(Master) Agreement
Among
Software Developer and Escrow Associates, LLC
The two-party escrow agreement allows numerous Beneficiaries
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
Beneficiary service levels can be managed under a single escrow agreement, an
exclusive industry 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 and Beneficiary have entered or will enter into a
security agreement, financing agreement, and/or other agreement regarding
certain proprietary technology of Developer, referred to as the "Collateral
Agreement".
Whereas,
the purpose of this Agreement is to protect Developer’s ownership and
confidentiality of the Deposit Materials and to protect Beneficiaries’
legitimate interest in the Deposit Materials as defined by the Collateral Agreement. Further, this Agreement is intended to
provide for certain circumstances under which Beneficiary shall be entitled to
receive the Deposit Materials held in escrow by Escrow Associates.
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 Beneficiary 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 Collateral 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 Beneficiary 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. Beneficiaries
- From time to time, Developer may, at its sole discretion, add or remove Beneficiaries
to this agreement utilizing the Exhibit C form herein. Any current Beneficiary shall have the right
to request a release of the Deposit Materials only if (i) Beneficiary is a
party to a Collateral 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 Beneficiary 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 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 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 Beneficiary 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 Collateral 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 Beneficiary 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. Beneficiary makes written request to Escrow Associates; and
a. Beneficiary asserts
that Developer has failed in a material respect under the Collateral Agreement;
and
b. Beneficiary includes a written statement that the Deposit
Materials will be used in accordance with the terms of the Collateral
Agreement; and
c. Beneficiary 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 Beneficiary within ten (10) business days.
(c) Beneficiary 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 Beneficiary as instructed by Beneficiary.
(d) Developer Objection to
Release - Should Developer object to the request for release by Beneficiary in
writing, Escrow Associates shall notify Beneficiary 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 Beneficiary, 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 Beneficiary under this Agreement, including the
development of patches and upgrades solely for Beneficiary’s internal use.
(f) Restrictions on Use –
The following restrictions shall apply to Deposit Materials delivered to Beneficiary: (i) Beneficiary shall not copy the Deposit
Materials other than as necessary for installation of Beneficiary’s equipment
and for backup copies on Beneficiary’s equipment, (ii) Beneficiary will keep
the Deposit Materials in a secure, safe place when not in use, (iii) Beneficiary
agrees to use the Deposit Materials under carefully controlled conditions in
accordance with, and for the purposes of, this Agreement, (iv) Beneficiary
shall be obligated to maintain the confidentiality of the released Deposit
Materials in accordance with Section 9, and (v) Beneficiary 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 Beneficiary 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 Collateral 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 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 Beneficiary shall have no right to assign any
rights hereunder or with respect to the Deposit Materials except as permitted
with respect to assignment of Beneficiary’s rights under the Collateral
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 Beneficiary Addition Form
Beneficiary #1
Company Name: _____________________________________________________
Contact: ____________________________________________________________
Address: ____________________________________________________________
City, State, Zip: _______________________________________________________
Telephone: __________________________Fax: _____________________________
E-mail: ______________________________________________________________
Applicable Product(s): __________________________________________________
Beneficiary #2
Company Name: ______________________________________________________
Contact: _____________________________________________________________
Address: ____________________________________________________________
City, State, Zip: _______________________________________________________
Telephone: __________________________Fax: _____________________________
E-mail: ______________________________________________________________
Applicable Product(s): __________________________________________________
(copy as
necessary)
Rider C
Registered Beneficiary Addition Form
Whereas, _________________ (“Developer”) and Escrow
Associates have entered into a two-party escrow agreement dated________________,
200__ (“The Agreement”).
Whereas, Developer, ____________________ (“Registered Beneficiary “) 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 Beneficiary
Signature:
______________________________
Name:
_________________________________
Title:
__________________________________
Company: ______________________________
Address: ________________________________
City,
State, Zip: ___________________________
Date:
__________________________________
Telephone: ________________________Fax: ___________________________
E-Mail: ____________________________________________________________
Applicable Product(s):
_________________________________________________