Software Escrow Agreement

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Software Escrow Agreement

Software Escrow Agreement

RECITALS

A. {{Vendor_Company_Name}}, a company incorporated in {{Vendor_Jurisdiction}} with its registered office at {{Vendor_Address}} (hereinafter referred to as “the Vendor”).

B. {{Licensee_Company_Name}}, a company incorporated in {{Licensee_Jurisdiction}} with its registered office at {{Licensee_Address}} (hereinafter referred to as “the Licensee”).

C. {{Escrow_Agent_Company_Name}}, a company incorporated in {{Escrow_Agent_Jurisdiction}} with its registered office at {{Escrow_Agent_Address}} (hereinafter referred to as “the Escrow Agent”).

D. The Vendor has developed and licensed to the Licensee certain software known as ‘{{Software_Name}}’ (hereinafter referred to as “the Software”), as more fully described in the Software License Agreement dated {{License_Agreement_Date}}.

E. The Licensee wishes to ensure continued access to the Software’s source code in the event of certain specified release conditions, and the Vendor agrees to deposit the source code with the Escrow Agent in accordance with the terms of this Agreement.

1. DEFINITIONS

1.1. “Agreement” means this Software Escrow Agreement, including all schedules and appendices hereto.

1.2. “Deposited Material” means the source code, object code, documentation, and any other materials related to the Software specified in Schedule A, deposited with the Escrow Agent.

1.3. “Effective Date” means the date upon which this Agreement is executed by all parties.

1.4. “Escrow Period” means the duration for which the Deposited Material is held by the Escrow Agent, commencing on the Effective Date and continuing until terminated in accordance with this Agreement.

1.5. “Release Conditions” means the events or circumstances upon the occurrence of which the Escrow Agent is authorized to release the Deposited Material to the Licensee, as set out in Clause 5.

2. DEPOSIT OF MATERIALS

2.1. The Vendor shall, within {{Number_of_Days}} days of the Effective Date, deposit the Deposited Material with the Escrow Agent. The Deposited Material shall be delivered in a reproducible and usable format as specified in Schedule A.

2.2. The Vendor shall provide the Escrow Agent with written certification that the Deposited Material is complete and accurate and accurately represents the current version of the Software licensed to the Licensee.

2.3. The Vendor undertakes to update the Deposited Material at least once every {{Update_Frequency}} (e.g., six months, annually) or within {{Number_of_Days_for_Update}} days of any major release or update to the Software, ensuring the Escrow Agent holds the most current version. Failure to do so may constitute a Release Condition as per Clause 5.1(c).

3. VERIFICATION OF DEPOSITED MATERIALS

3.1. The Escrow Agent shall, upon receipt of the Deposited Material, perform a visual inspection to confirm the presence of all items listed in Schedule A.

3.2. The Licensee shall have the right, at its own expense, to request an independent verification of the completeness and usability of the Deposited Material. Such verification shall be conducted by an independent third party mutually agreed upon by the Vendor and the Licensee, no more than once every {{Verification_Frequency}} (e.g., year).

3.3. If the verification reveals any deficiencies in the Deposited Material, the Vendor shall promptly rectify such deficiencies within {{Number_of_Days_to_Rectify}} days at no additional cost to the Licensee.

4. CUSTODY OF MATERIALS

4.1. The Escrow Agent shall hold the Deposited Material in secure storage facilities, protecting it from damage, unauthorized access, and loss.

4.2. The Escrow Agent shall not disclose, copy, or use the Deposited Material for any purpose other than as expressly permitted by this Agreement.

4.3. The Escrow Agent shall maintain appropriate insurance coverage for the Deposited Material against loss or damage.

5. RELEASE CONDITIONS

5.1. The Escrow Agent shall release the Deposited Material to the Licensee upon the occurrence of any of the following events (each a “Release Condition”):

(a) The Vendor files for bankruptcy, is declared insolvent, goes into liquidation, or ceases to carry on its business.

(b) The Vendor breaches any material term of the Software License Agreement between the Vendor and the Licensee, and such breach remains uncured for {{Cure_Period_Days}} days after written notice from the Licensee.

(c) The Vendor fails to maintain or update the Deposited Material as required by Clause 2.3 of this Agreement, and such failure remains uncured for {{Cure_Period_Days_for_Update_Failure}} days after written notice from the Licensee.

(d) A written instruction for release is jointly provided by the Vendor and the Licensee.

5.2. Upon notification of a potential Release Condition by the Licensee, the Escrow Agent shall promptly notify the Vendor of such claim.

5.3. The Vendor shall have {{Vendor_Response_Days}} days from the date of the Escrow Agent’s notification to dispute the Release Condition. If the Vendor disputes the Release Condition, the parties shall attempt to resolve the dispute amicably. If no resolution is reached within {{Dispute_Resolution_Days}} days, the dispute shall be referred to arbitration in accordance with Clause 9.

5.4. If the Vendor does not dispute the Release Condition within the stipulated period, or if the dispute is resolved in favor of the Licensee, the Escrow Agent shall release the Deposited Material to the Licensee.

6. EFFECT OF RELEASE

6.1. Upon release of the Deposited Material, the Licensee shall have the right to use the Deposited Material solely for the purpose of maintaining, supporting, and enhancing the Software for its own internal business operations, in accordance with the terms of the original Software License Agreement.

6.2. The Licensee shall not have the right to sublicense, distribute, or otherwise commercialize the Deposited Material without the express written consent of the Vendor.

6.3. All intellectual property rights in the Deposited Material shall remain with the Vendor. The release of the Deposited Material does not constitute a transfer of ownership of the intellectual property.

7. FEES AND EXPENSES

7.1. The Licensee shall pay the Escrow Agent an annual fee of {{Annual_Escrow_Fee}} {{Currency}} for the custody and administration of the Deposited Material.

7.2. Any verification costs incurred under Clause 3.2 shall be borne by the Licensee, unless deficiencies are found, in which case the Vendor shall bear the costs of rectification.

7.3. Each party shall bear its own legal and other costs incurred in connection with the negotiation, preparation, and execution of this Agreement.

8. TERM AND TERMINATION

8.1. This Agreement shall commence on the Effective Date and shall continue for the Escrow Period unless terminated earlier in accordance with its terms.

8.2. This Agreement may be terminated by mutual written agreement of all parties.

8.3. This Agreement shall automatically terminate upon the termination or expiration of the Software License Agreement, provided that all obligations relating to the release of the Deposited Material have been fulfilled.

8.4. Upon termination of this Agreement, the Escrow Agent shall, as instructed by the Vendor and Licensee, either return the Deposited Material to the Vendor or destroy it, providing written certification of destruction.

9. GOVERNING LAW AND DISPUTE RESOLUTION

9.1. This Agreement shall be governed by and construed in accordance with the laws of {{Governing_Law_Jurisdiction}}.

9.2. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof, shall be settled by arbitration in accordance with the rules of {{Arbitration_Institution}}.

9.3. The seat of the arbitration shall be {{Arbitration_Seat}}.

IN WITNESS WHEREOF, the parties have executed this Software Escrow Agreement on the date first written above.

____________________________ {{Vendor_Representative_Name}} Title: {{Vendor_Representative_Title}} For and on behalf of {{Vendor_Company_Name}}

____________________________ {{Licensee_Representative_Name}} Title: {{Licensee_Representative_Title}} For and on behalf of {{Licensee_Company_Name}}

____________________________ {{Escrow_Agent_Representative_Name}} Title: {{Escrow_Agent_Representative_Title}} For and on behalf of {{Escrow_Agent_Company_Name}}

(Schedules and Appendices may be attached, e.g., Schedule A: Description of Deposited Material)