StartupBUSINESS.COM

Source Code Escrow Agreement

THIS AGREEMENT, made and entered into this  day of  , 20

by and between         (hereinafter "Licensor"), a [state] corporation with principal offices at    (hereinafter "Licensee"), a [state] corporation with principal offices at           ; and    (hereinafter "Escrow Agent"), a [state] corporation with principal offices at

WITNESSETH:

WHEREAS, Licensor and Licensee have entered into an agreement (the "License Agreement") pursuant to which Licensor has provided to Licensee certain proprietary computer programs in object code form, such programs being listed in Exhibit A hereto [omitted] (the "Licensed Programs"); and

WHEREAS, Licensor and Licensee have agreed to place the source code corresponding to the Licensed Programs in escrow to be released to Licensee upon breach of certain obligations of maintenance and support of the Licensed Programs undertaken by Licensor in the License Agreement [omitted];

NOW THEREFORE, in consideration of the premises, as well as the obligations herein made and undertaken, the parties hereto do hereby covenant and agree as follows:

Section 1

DEFINITIONS

For the purposes of this Agreement, in addition to definitions set forth elsewhere in this Agreement, the definitions set forth in this Section shall apply to the respective capitalized terms immediately preceding each definition.

1.1 "Agreement." This Source Code Escrow Agreement, including any exhibits, addenda, amendments, and modifications hereto.

1.2 "Source Code." Human-readable computer programming code, associated procedural code, and related and supporting documentation, corresponding to the Licensed Programs and all subsequent versions thereof furnished to Licensee. The Source Code in present form is more fully described at Exhibit B hereto [omitted].

1.3 "Support Services." All installation, error correction, maintenance, and other technical assistance respecting the Licensed Programs required to be performed by Licensor pursuant to the Maintenance Addendum to the License Agreement.

1.4 "License Agreement." That separate agreement between Licensor and Licensee under which Licensee is granted a right of use of the Licensed Programs in object code form corresponding to the Source Code defined above, and setting forth various continuing obligations of Licensor respecting maintenance and support of the Licensed Programs.

Section 2

REPRESENTATIONS AND WARRANTIES OF LICENSOR

2.1 Ownership of Source Code. Licensor warrants and represents to Licensee that it is the owner of and holder of all rights in the Source Code and that the Source Code embodies highly valuable trade secret information, the design and development of which has required significant expenditures of time and money, and that Licensor has the right to grant to Licensee the license rights to the Source Code pursuant to Section 9.1 hereof and to deposit the Source Code with Escrow Agent pursuant to the terms hereof. Licensor further represents that it has not licensed, transferred, or disclosed said Source Code to any party except under an agreement substantially similar to this Agreement.

2.2 Licensed Programs Correspond With Source Code. Licensor warrants and represents to Licensee that the Source Code to be deposited with Escrow Agent is the most current version of the source code of the Licensed Programs and conforms to the description set forth in Exhibit A hereto [omitted].

Section 3

PURPOSE OF AGREEMENT; DEPOSIT OF SOURCE CODE

3.1 Deposit of Source Code. The deposit of Source Code and the license thereof to Licensee pursuant to Section 9.1 hereof is intended to provide assurance to Licensee of access and right of use of the Source Code in the event that Licensor fails to provide Support Services under the License Agreement in accordance with the terms thereof. In connection therewith, Escrow Agent agrees to accept from Licensor and Licensor agrees to deposit with Escrow Agent, within 10 days of the date of this Agreement, a copy of the Source Code. Licensor will furnish to Escrow Agent a list describing all Source Code so deposited. The Source Code to be initially so deposited with Escrow Agent is described at Exhibit B hereto [omitted], and such descriptions will be supplemented and updated by Licensor with each subsequent deposit of Source Code. For each deposit, Escrow Agent will issue receipts to Licensor.

3.2 Update and Maintenance of Source Code. During the term of this Agreement, Licensor shall keep the Source Code in escrow fully current by depositing the listings and all supporting documentation and related materials for each and every update, correction, or new release of the Licensed Programs. Such deposits will be completed no later than 60 days after the date of such release to Licensee of the Licensed Programs.

3.3 Verification and Testing of Source Code. Licensee may appoint any independent firm of certified public accountants of national reputation to inspect, test, and review the Source Code (under obligations of confidentiality) at the time of the initial deposit and at the time of each subsequent deposit of the Source Code in escrow to verify that it corresponds to the Licensed Programs, and Escrow Agent shall permit such inspections and testing of the same promptly upon request. Such inspections and testing shall be conducted at [location].

Section 4

TITLE TO SOURCE CODE

4.1 Title to the Source Code shall remain in Licensor, but title to the copy thereof to be deposited in escrow hereunder shall, in the event the Source Code shall be delivered to Licensee pursuant hereto, pass to and vest in Licensee. Notwithstanding its ownership of a copy of the Source Code in such event, Licensee shall remain subject to the terms of the license granted pursuant to Section 9.1 hereof with respect to the use thereof.

Section 5

RELEASE OF SOURCE CODE TO LICENSEE

5.1 Release of Code. The copy of the Source Code to be deposited in escrow pursuant to this Agreement shall be released to Licensee only in accordance with the terms of this Agreement.

5.2 Notice of Default; Right to Cure. If Licensee shall conclude in good faith that Licensor has failed in material respects to provide Support Services as required by the License Agreement and in breach of its obligations there under, it shall so notify Licensor in writing, specifying in reasonable detail the respects as to which Licensor has failed to so perform. A copy of such notice will be served simultaneously upon Escrow Agent. For a period of 10 days after service of such notice, Licensor shall have the right to cure the identified breaches. In the event that, at the conclusion of such cure period, Licensee shall conclude in good faith that the identified breaches have not been cured, Licensee may so notify both Licensor and Escrow Agent, and such notice shall include a demand that Escrow Agent release the Source Code to Licensee pursuant to the terms hereof.

5.3 Dispute by Licensor. If Licensor disagrees that its obligations have been breached, Licensor shall, within five days after receipt of Licensee's notice and demand for release, notify both Escrow Agent and Licensee that it objects to release of the Source Code. Failure of Licensor to furnish timely notice objecting to release of the Source Code shall conclusively establish its consent to the immediate release of the Source Code to Licensee under the terms of this Agreement.

5.4 injunctive Relief. Licensor and Licensee acknowledge and agree that Licensee will suffer irreparable harm to its business and operations in the event that release of the Source Code to Licensee pursuant to the terms hereof is wrongfully delayed by Licensor, and that Licensee may petition for injunctive relief to prevent Licensor from seeking to delay such release, and that Licensor shall not oppose an entry of such an order of injunctive relief.

Section 6

BANKRUPTCY OF LICENSOR

6.1 Licensor shall be deemed to be in breach of its obligations under the License Agreement and under this Agreement should any of the following events occur: (1) Licensor admits in writing its inability to pay its debts generally as they become due; (2) Licensor makes a general assignment for the benefit of creditors; (3) Licensor voluntarily institutes proceedings to be adjudicated a bankrupt; (4) Licensor consents to the filing of a petition of bankruptcy against it; (5) a petition of bankruptcy is filed against Licensor and remains unstayed or is not dismissed within 10 days after such filing; (6) Licensor is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (7) Licensor seeks reorganization under any bankruptcy act or law of debtor's moratorium or consents to the filing of a petition seeking such reorganization; or (8) Licensor has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of Licensor's property or providing for the liquidation of Licensor's property or business affairs. In any such event, Licensee may thereupon so notify Escrow Agent in writing and provide evidence of the same. Escrow Agent shall in such event promptly release and deliver the Source Code to Licensee pursuant to the terms hereof.

[Optional provision]

Section 7

ARBITRATION OF DISPUTES RESPECTING RELEASE OF SOURCE CODE

7.1 In the event of any dispute respecting release of the Source Code under Section 5 hereof, representatives of Licensor and Licensee shall meet no later than five days after delivery of Licensor's notice objecting to such release and shall enter into good-faith negotiations aimed at curing the alleged breaches by Licensor of its obligations to provide Support Services. If such persons are unable to resolve the dispute in a satisfactory manner within the following five days, either Licensor or Licensee may seek binding arbitration under Section 8 hereof.

[Optional provision]

Section 8

ARBITRATION PROCEDURE; COSTS

8.1 Arbitration Procedure. Upon receipt by Escrow Agent of written notice by Licensor or Licensee calling for arbitration with respect to any dispute respecting release of the Source Code under Section 5 hereof, the matter shall be submitted to binding arbitration. Such arbitration shall be conducted under the commercial rules then prevailing of the American Arbitration Association, by a panel of not less than three arbitrators appointed by the American Arbitration Association, at least one of whom must have substantial experience in the field of computer software technology and licensing. The sole issues for arbitration shall be whether Licensor has failed to provide Support Services in accordance with the License Agreement. If the arbitrators shall so determine, they shall forthwith so notify the parties and Escrow Agent shall forthwith deliver the Source Code to Licensee. The decision of the arbitrators shall be final and binding on Licensor and Licensee and may be entered and enforced in any court of competent jurisdiction by either party.

8.2 Costs of Arbitration. The prevailing party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrators shall for good cause determine otherwise.

Section 9

LICENSE OF SOURCE CODE

9.1 In the event that the Source Code shall be delivered out of escrow to Licensee pursuant to the terms of this Agreement, Licensee shall be licensed by Licensor, and Licensor does so hereby license Licensee, subject to such condition, to use, modify, maintain, and update the Source Code in all such respects as may be necessary for Licensee to maintain and update the Licensed Programs in accordance with the description of such services in the Maintenance Addendum to the License Agreement, and object code resulting from such use shall be owned by Licensee.

Section 10

RIGHT OF ESCROW AGENT TO FILE INTERPLEADER ACTION

10.1 Notwithstanding any other provision of this Agreement, in the event Escrow Agent shall receive conflicting demands from Licensor and Licensee respecting release of the Source Code to Licensee hereunder, Escrow Agent may, in its sole discretion, file an interpleader action with respect thereto in any court of competent jurisdiction and deposit the Source Code with the clerk of the court or withhold release of the Source Code until instructed otherwise by court order.

Section 11

FEES OF ESCROW AGENT

11.1 Licensor and Licensee shall each pay to Escrow Agent, annually in advance during the terms hereof, one half of the fees of the Escrow Agent at the rate prescribed on the attached Exhibit C [omitted] for its performance of services hereunder.

Section 12

LIMITATION ON OBLIGATION OF ESCROW AGENT

12.1 Escrow Agent shall not be required to inquire into the truth of any statements or representations contained in any notices, certificates, or other documents required or otherwise provided hereunder, and it shall be entitled to assume that the signatures on such documents are genuine, that the persons signing on behalf of any party thereto are duly authorized to execute the same, and that all actions necessary to render any such documents binding on the party purporting to be executing the same have been duly undertaken. Without limiting the foregoing, Escrow Agent may in its discretion require from Licensor or Licensee additional documents that it deems to be necessary or desirable to aid it in the course of performing its obligations hereunder.

Section 13

RELEASE AND INDEMNIFICATION OF ESCROW AGENT

13.1 Licensor and Licensee, severally, hereby do release Escrow Agent from any and all liability for losses, damages, and expenses (including attorney fees) that may be incurred on account of any action taken by Escrow Agent in good faith pursuant to this Agreement, and such parties do hereby severally indemnify Escrow Agent and undertake to hold harmless Escrow Agent from and against any and all claims, demands, or actions arising out of or resulting from such performance by Escrow Agent under this Agreement.

Section 14

CONFIDENTIALITY AND USE OF SOURCE CODE

14.1 Confidentiality Undertaking. The Source Code released to Licensee pursuant to this Agreement shall be used by Licensee solely for the purposes permitted by this Agreement. Licensee shall treat and preserve the Source Code as a trade secret of Licensor in accordance with the same practices employed by Licensee to safeguard its own trade secrets against unauthorized use and disclosure.

14.2 Survival of Obligations. The obligations of this Section 14 shall survive the terminator of this Agreement for any reason and shall continue for as long as the Source Code continues to embody trade secrets of Licensor.

Section 15

INDEPENDENT CONTRACTOR STATUS

15.1 The parties hereto are and shall be independent contractors under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. No party shall have the authority to enter into agreements of any kind on behalf of the other parties in any manner.

Section 16

CONTINUED ABILITY TO PERFORM OBLIGATIONS

16.1 The parties hereto represent and warrant that they have full power and authority to undertake the obligations set forth in this Agreement and that they have not entered into any other agreements nor will they enter into any other agreements that would render them incapable of satisfactorily performing their respective obligations hereunder or that would place them in a position of conflict of interest or be inconsistent or in conflict with their respective obligations hereunder.

Section 17

TERM OF AGREEMENT

17.1 The term of this Agreement shall commence on the effective date hereof and shall continue until the Source Code shall be transferred to Licensee pursuant to the terms hereof, or, if such transfer shall not have so occurred, the Agreement shall terminate and the Source Code shall be returned to Licensor at the end of the term of the License Agreement.

Section 18

MISCELLANEOUS

18.1 Compliance. With Laws. The parties hereto agree that they shall comply with all applicable laws and regulations of governmental bodies or agencies in their respective performance of obligations under this Agreement.

18.2 No Undisclosed Agency; No Assignment. Each party represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party and agrees that it may not assign its rights or obligations under this Agreement without the prior written consent of the other parties hereto.

18.3 Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be considered effective when deposited in the U.S. mail, postage prepaid, and addressed to the respective party at the address noted above, unless by such notice a different address shall have been designated.

18.4 Governing Law. All questions concerning the validity, operation, interpretation, and construction of this Agreement shall be governed by and determined in accordance with the laws of the State of

18.5 No Waiver. No party shall, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party (parties) of any of the provisions of this Agreement. Further, the waiver by any party of a particular breach of this Agreement by any other party shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement.

18.6 Force Majeure. No party shall be in default if failure to perform any obligation hereunder is caused solely by supervening conditions beyond such party's control, including acts of God, civil commotion, strikes, labor disputes, or governmental demands or requirements.

18.7 Partial Invalidity. If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.

18.8 Complete Statement of Agreement. The parties hereto acknowledge that each has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this Agreement is the complete and exclusive state of agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants, and all other communications between the parties relating hereto.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives as set forth below:

[Licensor]       [Licensee]

By:       By:

Title:    Title:

Date:   , 20      Date:   , 20

[Escrow Agent]

By:

Title:

Date:   , 20

Source Code Trust Agreement

THIS AGREEMENT, made and entered into this  day of  , 20

by and between         (hereinafter "Beneficiary"), a corporation duly organized

under the laws of the State of , and Trust Company (hereinafter "Trustee"), a banking corporation duly organized and existing under the laws of the State of

WITNESSETH:

WHEREAS,   , a [type of corporation] ("Licensor"), has granted Beneficiary a non-exclusive, perpetual, and irrevocable right to use the source code version of the [name of program], along with supporting procedural code, documentation, and commentary, all as more particularly described in Exhibit A hereto [omitted), (the "Source Code") for the purpose of assuring complete and timely support and maintenance of the [name of program] and for other purposes;

WHEREAS, Beneficiary has agreed to maintain the Source Code in confidence in order to protect and preserve its proprietary features and, to that end, Beneficiary has agreed to have the Source Code held in trust pending an order of release in a separate facility beyond the access of its regular personnel; and

WHEREAS, Beneficiary desires to engage Trustee to hold the Source Code and administer its safekeeping and disposition, on a controlled basis, on behalf of Beneficiary;

NOW THEREFORE, in consideration of the premises hereof, and of the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, do hereby agree as follows:

Section 1

APPOINTMENT OF TRUSTEE

1.1 Subject to the terms and conditions hereof, Beneficiary hereby irrevocably appoints and engages Trustee as its trustee to hold, administer, and dispose of the Source Code in accordance with Beneficiary's instructions and does hereby transfer, assign, and convey the Source Code to Trustee. Trustee hereby accepts such appointment and agrees to perform its duties hereunder in a diligent and professional manner. Except as set forth in Section 10 hereof, Beneficiary is and shall be the sole beneficiary under this Trust Agreement.

Section 2

DUTIES OF TRUSTEE

2.1 Delivery and Deposit. Beneficiary shall cause Licensor to deliver to Trustee a sealed package containing the completely documented current version of the Source Code. Each item of the Source Code shall be identified in an appropriate manner. Trustee shall notify Beneficiary promptly after the Source Code has been received.

2.2 Safekeeping. Trustee shall hold the Source Code in a secure, climate-controlled facility suitable for storage of such materials.

2.3 Release and Transfer of Trust Property. The following shall each be deemed to be an "Order of Release":

a.         Written notice by Beneficiary to Trustee (with a copy sent to Licensor) asserting Licensor's material failure to provide maintenance and support services as well as reasonable changes to the Program required under the separate maintenance agreement between Licensor and Beneficiary (the "Maintenance Agreement"), or other material breach of the Maintenance Agreement;

b.         Written notice by Beneficiary to Trustee (with a copy sent to Licensor) asserting Licensor's repudiation of the Maintenance Agreement;

'c. Written notice by Beneficiary to Trustee (with a copy sent to Licensor) asserting Beneficiary's reasonable anticipation of the financial insolvency of Licensor;

d.         Written notice by Beneficiary to Trustee (with a copy to Licensor) documenting (1) Licensor's filing of a petition or having filed on its behalf a petition, or its consent to the filing of a petition, under any insolvency or bankruptcy statute seeking the declaration of Licensor as insolvent or bankrupt; (2) Licensor's filing of any action on its behalf seeking receivership or reorganization pursuant to or under any insolvency or bankruptcy statute; (3) the filing of an involuntary petition against Licensor pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for 10 days after filing; or (4) Licensor's written acknowledgment of its insolvency or inability to pay its debts as they become due; and

e.         Written notice by Beneficiary to Trustee (with a copy to Licensor) asserting Licensor's (1) sale or attempted sale of all or substantially all of its assets or (2) merger or proposed merger other than an acquisitive merger in which Licensor is the acquiring and surviving party.

2.4 Verification of Occurrence of Order of Release; Engagement of Consultant.

a.         If, within 10 days of an Order of Release, Trustee receives written notice from Licensor objecting to release of the Source Code, Trustee shall, within five days of receipt of such order, engage an independent firm of certified public accountants of national reputation to serve as a consultant ("Consultant") to Trustee for the sole purpose of determining whether the facts alleged in the Order of Release provided by Beneficiary can be substantiated. Licensor may, at its option, provide Consultant with such documentation or material as it deems appropriate. Consultant shall be required by Trustee to make its determination within 10 business days following its engagement, and Consultant shall report its findings in writing to Trustee (with a copy to Beneficiary and Licensor). In the event Consultant determines that it cannot substantiate the facts set forth in the Order of Release, Beneficiary may provide additional documentation to Consultant. Consultant shall, within 10 days of receipt of such additional documentation, review same and advise Trustee in writing (with a copy to Beneficiary and Licensor) of its final determination with respect to such matter.

b.         Consultant's fees shall be paid by Trustee, and Trustee shall, upon request to Beneficiary, be fully reimbursed by Beneficiary.

2.5 Release and Transfer of Trust Property.

a.         If, within 10 days of receipt from Beneficiary of an Order of Release, Trustee has not received a written notice from Licensor invoking the provisions of Section 2.4 hereof, Trustee shall immediately distribute, deliver, and transfer in fee simple the Source Code to Beneficiary.

b.         If, within 10 days of receipt from Beneficiary of an Order of Release, Trustee has received a written notice from Licensor invoking the provisions of Section 2.4 hereof, Trustee shall, upon receipt of a written certification by Consultant verifying that the basis for an Order of Release has been substantiated, immediately distribute, deliver, and transfer in fee simple the Source Code to Beneficiary.

Section 3

TITLE TO COPY OF SOURCE CODE

3.1 Title in and to the copy of the Source Code delivered to Trustee is herewith transferred and conveyed to Trustee, provided, however, that Trustee acknowledges that nothing herein shall be deemed to transfer title to the intellectual property rights subsisting in the Source Code to Trustee and Trustee shall not assert any such rights therein.

Section 4

LIMITATION OF AUTHORITY

4.1 Trustee shall have no authority to take any action, or enter any contract, on behalf of Beneficiary, except as expressly set forth herein.

Section 5

COMPENSATION OF TRUSTEE

5.1 As compensation for services rendered hereunder, Trustee shall be paid by Beneficiary the fees and expenses set forth at the schedule at Exhibit B hereto [omitted].

Section 6

TERM AND TERMINATION

6.1 The term of this Agreement shall commence on the date hereof and shall continue thereafter unless and until Trustee has released the Source Code to Beneficiary pursuant to Section 2.5 hereof. Such notice shall be made by certified mail with return receipt requested, with a copy sent to Licensor, return receipt requested. Upon termination of this Trust Agreement for any reason, Trustee shall dispose of the Source Code in accordance with Beneficiary's instructions.

Section 7

INDEMNIFICATION

7.1 Beneficiary shall indemnify and hold harmless Trustee and Consultant from and against any and all claims and damages asserted respectively against Trustee or Consultant as a result of Trustee's compliance with Beneficiary's instructions or Consultant's engagement hereunder. Trustee and Consultant shall each give Beneficiary complete and absolute control over the defense and the disposition of any such claims.

Section 8

CONFIDENTIALITY

8.1 Except as provided in this Agreement, Trustee shall not use, allow access to, or disclose any information reflected in or pertaining to the Source Code in any manner or for any purpose whatsoever.

Section 9

NOTICES

9.1 All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed effective when dispatched by first class mail, postage prepaid, certified, return receipt requested (with copies sent as specifically provided), to the following addresses: [indicate the names and addresses of the parties, and specify to whose attention notices should be sent].

Section 10

THIRD-PARTY BENEFICIARY

10.1 Beneficiary, Trustee, and Licensor hereby acknowledge and agree that Licensor shall be deemed a third-party beneficiary under this Trust Agreement, but only to the limited extent that Licensor is entitled to (1) receive notice of (a) Beneficiary's instructions to Trustee, (b) termination of the Trust Agreement, and (c) Trustee's release of the Source Code and (2) submit documentation and materials to Trustee pursuant to the terms of Section 2.4 hereof. This Trust Agreement is not intended, and shall not be construed, to affect or impair any separate undertaking between Beneficiary and Licensor in any other agreement or instrument.

Section 11

MISCELLANEOUS

11.1 This Trust Agreement embodies the entire agreement and understanding between the parties hereto, and supersedes all prior agreements and understandings relating to the subject matter hereof. This Trust Agreement may not be assigned by either party without the prior written consent of the other. This Trust Agreement shall be governed by and construed under the laws of the State of

IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement and have caused their seals to be affixed hereto, all as of the date first written above.

[Beneficiary]

By:

Title:

Date:   , 20

[Trustee]

By:

Title:

Date:   , 20

Source Code Agency Agreement

THIS AGREEMENT, made and entered into this  day of  , 20.....,

by and between         (hereinafter "Principal"), a corporation duly organized and

existing under the laws of the State of        and having its principal offices at

, and    (hereinafter "Agent"), a corporation duly organized and

existing under the laws of the State of        and having its principal offices at

WITNESSETH:

WHEREAS, [Licensor], a corporation duly organized and existing under the laws of the State of and having principal offices at , has granted Principal a non-exclusive, perpetual, and irrevocable right to use the source code version of the [name of program], along with supporting documentation and commentary, all as more particularly described in Exhibit A hereto [omitted] (the "Source Code"), for the limited purpose of assuring complete and timely support and maintenance of the [name of program];

WHEREAS, Principal has agreed to maintain the Source Code in strictest confidence in order to protect and preserve its proprietary features and, to that end, Principal has agreed to have the Source Code held in a separate facility beyond the access of its regular personnel; and

WHEREAS, Principal desires to engage Agent to hold the Source Code and administer its safekeeping and disposition, on a controlled basis, on behalf of Principal;

NOW, THEREFORE, in consideration of the premises hereof, and of the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, do hereby agree as follows:

Section 1

APPOINTMENT OF AGENT

1.1 Subject to the terms and conditions hereof, Principal hereby engages Agent to hold, administer, and dispose of the Source Code in accordance with Principal's instructions. Agent hereby accepts such engagement and agrees to perform its duties hereunder in a diligent manner.

Section 2

DUTIES OF AGENT

2.1 Delivery and Deposit of Source Code. Principal shall cause Licensor to deliver to Agent a sealed package containing the completely documented current version of the Source Code. Each item of the Source Code shall be adequately identified. Agent shall notify Principal promptly afterthe Source Code has been received.

2.2 Safekeeping. Agent shall hold the Source Code in a secure, climate-controlled facility suitable for such materials.

2.3 Further Releases and Revisions. From time to time during the term of Agent's engagement hereunder, either Licensor or Principal may deposit with Agent further releases or revisions of the Source Code. Agent shall accept and hold such further releases and revisions in accordance with the instructions of Principal. It is anticipated that Principal will authorize Agent to release prior versions of the Source Code, in the usual case by return thereof to Licensor, within 120 days after a complete new set of Source Code has been deposited with Agent.

2.4 Release of Source Code. Agent shall release the Source Code only in accordance with Principal's instructions, with a copy of such instructions sent to Licensor. Agent shall act on Principal's instructions immediately, without consideration of any facts or circumstances whatsoever other than the authenticity of Principal's instructions and compliance of the notice containing such instructions with Sections 8.1 hereof. Release of the Source Code to Principal in accordance with its instructions shall forthwith terminate this Agreement.

Section 3

LIMITATION ON AUTHORITY OF AGENT

3.1 Agent shall have no authority to take any action, or enter into any contract, on behalf of Principal, except as expressly set forth herein.

Section 4

COMPENSATION

4.1 As compensation for services rendered hereunder, Agent shall receive fees and expenses in accordance with the schedule set forth at Exhibit B hereto [omitted].

Section 5

TERM AND TERMINATION

5.1 The term of this Agreement shall commence on the date hereof and shall continue thereafter unless and until (1) either party elects to terminate this Agreement by giving the other party at least 60 days' prior written notice or (2) Agent has released the Source Code to Principal pursuant to Section 2.4 hereof. Such notice shall be made in accordance with the provisions of Section 8.1 hereof, with a copy sent to Licensor. Upon termination of this Agreement for any reason, Agent shall dispose of the Source Code in accordance with Principal's instructions.

Section 6

RELEASE AND INDEMNIFICATION OF AGENT

6.1 Principal does hereby release Agent from any and all liability to it for losses, damages, and expenses (including reasonable attorney's fees) that may be incurred by it on account of any action taken by Agent in good faith pursuant to Principal's instructions under this Agreement, and Principal does hereby indemnify and hold harmless Agent from and against any and all claims, demands, or actions arising out of or resulting from such performance by Agent under this Agreement. Agent shall promptly notify Principal of any claims for which indemnity is sought hereunder and shall accord to Principal full control over the defense and the disposition of any such claims.

Section 7

CONFIDENTIALITY

7.1 Except as specifically authorized under this Agreement, Agent shall not use, copy, or disclose any information reflected in or pertaining to the Source Code in any manner or for any purpose whatsoever. The provisions of this Section 7.1 shall survive termination of this Agreement for any reason.

Section 8

NOTICES

8.1 All notices required or permitted to be given under this Agreement shall be in writing and shall be deemed effective when dispatched by first class mail, postage prepaid, certified, return receipt requested (with copies sent as specifically provided), to the addresses set forth above.

Section 9

THIRD-PARTY BENEFICIARY

9.1 Principal, Agent, and Licensor hereby acknowledge and agree that Licensor shall be deemed a third-party beneficiary under this Agreement, but only to the limited extent that Licensor is entitled to receive notice of (1) Principal's instructions to Agent, (2) termination of the Agreement, and (3) Agent's release of the Source Code.

This Agreement is not intended, and shall not be construed, to affect or impair any separate undertaking between Principal and Licensor in any other agreement or instrument.

Section 10

MISCELLANEOUS

10.1 Compliance With Laws. The parties hereto agree that they shall comply with all applicable laws and regulations of governmental bodies or agencies in their respective performance of obligations under this Agreement.

10.2 No Undisclosed Agency; No Assignment. Each party represents that it is acting on its own behalf and is not acting as an agent for or on behalf of any third party and further agrees that it may not assign its rights or obligations under this Agreement without the prior written consent of the other parties hereto.

10.3 Governing Law. All questions concerning the validity, operation, interpretation, and construction of this Agreement shall be governed by and determined in accordance with the laws of the State of

10.4 No Waiver. No party shall, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party (parties) of any of the provisions of this Agreement. Further, the waiver by any party of a particular breach of this Agreement by any other party shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement.

10.5 Force Majeure. No party shall be in default if failure to perform any obliga¬tion hereunder is caused solely by supervening conditions beyond such party's control, including acts of God, civil commotion, strikes, labor disputes, or governmental demands or requirements.

10.6 Partial Invalidity. If any part, term, or provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.

10.7 Complete Statement of Agreement. The parties hereto acknowledge that each has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this Agreement is the complete and exclusive statement of agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants, and all other communications between the parties relating to the subject matter hereof.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives as set forth below:

[Principal]       [Agent]

By:       By:

Title:    Title:

Date:   , 20      Date:   , 20

[Licensor]

By:

Title:

Date:   , 20