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SOURCE CODE ESCROW AGREEMENT

The Undersigned:

1. {Customer} having its place of business at {Address}, for the purpose hereof represented by the undersigned legal representative, hereinafter referred to as ‘Client’; and

2. Codekeeper, {depending on client location}, hereinafter referred to as ‘Escrow Agent’;

Whereas:

I)

Client has direct or indirect rights to Source Code of a computer program (‘Product’).

Client has agreed to put the Source Code of the Product under escrow to serve as continuity protection for a Beneficiary of this escrow.

Client will assign named Beneficiaries of the escrow within this Agreement;

II)

The Source Code of the Product and all related Technical Documentation are the property of Client and are of a confidential nature;

III)

The Source Code of the Product and the Technical Documentation relating to it are not required for the general use of the Product under the terms of the License Agreement, but are required for a proper understanding, maintenance, amendment and correction of the Product;

IV)

Client acknowledges that Beneficiary under certain circumstances and exclusively for Continuity Purposes may require access to the Source Code of the Product and all related Technical Documentation;

V)

Client agrees to deposit on behalf of the Beneficiary, as to be further specified, the Source Code of the Product and related Technical Documentation in escrow with Escrow Agent under the conditions specified herein.

Hereby agree to the following:

ARTICLE 1 - DEFINITIONS

The following expressions used in this Agreement and the Annexes shall have the following meanings:

(Escrow) Agreement: this two-party Source Code Escrow Agreement between Client and Escrow Agent;

Beneficiary: a beneficiary in the form of a person, an institution, a corporation or other legal body or entity to whom a Client has given permission to use the Product under the License Agreement and to whom Escrow Agent has issued an Escrow Confirmation;

Client: supplier in the form of a person, an institution, a corporation or other legal body or entity who through means of a License Agreement exercises the right to issue the usage rights of its Product either directly or through a distributor;

Continuity Purposes: the use of the Material strictly and solely for the purpose of using, maintaining, correcting, modifying and/or extension of the Product with due observance of the copyright and confidentiality clauses of the License Agreement between Client and Beneficiary;

Escrow Confirmation: a confirmation issued by Escrow Agent to the Beneficiary confirming deposit of the Material by Client pursuant to the terms and conditions of the Agreement. The Escrow Confirmation will be issued within five (5) working days via email after receiving a first deposit of the Material;

License Agreement: the License Agreement entered into between Client and Beneficiary concerning the Product;

Maintenance Obligations: the conditions set out in the License and/or Maintenance Agreement under which Client has agreed to maintain the Product;

Material: (i) the Source Code of the Product; (ii) all alterations, updates and/or corrections of the Product, which are made available to Beneficiary within the scope of Client’s release policy; and (iii) all Technical Documentation, relevant and necessary for the Maintenance of the Product.

Medium: The Source Code repository in which the Material and all applicable updates are stored;

Product: the programme product(s) Licensed to Beneficiary under the License Agreement, which form the subject of the escrow arrangement;

Source Code: the computer programming code of the Product in human readable format, including all documentation and instructions necessary to maintain, interpret, compile, and install;

Technical Documentation: the technical documentation required to enable Beneficiary to maintain, amend, correct and/or modify the Source Code of the Product;

Release Event: the occurrence of an event described in this Agreement which triggers the release of the Material to Beneficiary.

Release Validation: the process through which Escrow Agent verifies if the release conditions agreed upon in this Agreement have been met.

ARTICLE 2 - DEPOSIT

2.1 Client shall provide access to the Medium, containing the Material, to Escrow Agent within thirty (30) days after the Agreement has come into effect. This will be done by adding the Escrow Agent account to the Medium. Each Medium the Escrow Agent account is added to will be automatically added to the terms of this Escrow Agreement and any charges, if applicable, will automatically be charged and/or added to the account.

2.2 Client shall undertake to do the same for each alteration of the Product within thirty (30) days of having made such alteration available to Beneficiary within the scope of its release policy.

2.3 Escrow Agent will confirm the first deposit of the Material to Beneficiary in writing via email. If Beneficiary does not receive the confirmation of deposit prior to or within thirty (30) days after operational implementation, Beneficiary shall immediately notify Escrow Agent in writing.

2.4 Escrow Agent shall hold the three (3) latest deposits of the Material for the term of the Agreement. Older Material, prior to the three latest deposits, shall automatically and irreversibly be destroyed by Escrow Agent unless agreed otherwise in this Agreement.

2.5 Escrow Agent shall make no use of the Material other than it is entitled to pursuant to the Agreement.

2.6 The access to the Medium granted by Client to Escrow Agent referred to under Clause 2.1 and Clause 2.2 above shall not include a transfer to Escrow Agent of any intellectual property rights in the Material. These intellectual property rights shall at all times remain vested in Client or such other third party as may be determined from time-to-time.

2.7 Client hereby confirms and grants Escrow Agent the right to:

I)

Connect to the hosted repository of the Source Code either via API or account system available on the platform where the Source Code is hosted;

II)

Make backups of the Material and store those digitally in different locations;

III)

Load the Material on a computer system in order to verify the Material, if applicable;

IV)

Release the Material to Beneficiary in accordance with the terms stated in Article 7 (‘Release’) through whatever process or method deemed suitable by Escrow Agent.

ARTICLE 3 - VERIFICATION

3.1 No verification of the Source Code shall take place.

ARTICLE 4 – BACK-UP

4.1 Client shall throughout the term of the Agreement hold available copies of the three (3) latest versions of the Material deposited with Escrow Agent as a backup.

ARTICLE 5 – OBLIGATIONS ESCROW AGENT

5.1 Escrow Agent shall hold the Material on deposit in a safe and secure environment and shall use reasonable endeavors to prevent unauthorized parties from having access to such environment, in accordance with industry standards.

5.2 Escrow Agent shall, throughout the term of the Agreement, keep the deposits of the Material in its online storage locations. Furthermore, Escrow Agent shall use reasonable endeavors to prevent unauthorized third parties from having access to its digital vaults.

5.3 Escrow Agent shall not disclose or divulge the Materials to any third person save such of its employees and/or authorized third parties who need the Material for verification purposes. Escrow Agent will see to it that immediately after a verification procedure, the Material and any copy made will be removed from the computer system used for the verification.

5.4 If, despite the security measures and other precautions taken by Escrow Agent, damage is done to or loss takes place of the Material, Escrow Agent shall be obliged to promptly notify Client of this fact and Client shall be obliged to promptly provide a new copy of the Material to Escrow Agent as set out under Article 2 above. The costs of providing a new copy shall be to the account of Escrow Agent unless and to the extent that Client has not complied with its obligation to keep backup copies as set out under Article 4 above.

5.5 On termination of this Agreement, Escrow Agent shall destroy the Material.

ARTICLE 6 – CONFIDENTIALITY

6.1 If and as far as any confidential information comes to the attention of Escrow Agent, it shall not divulge the same to any third party. This obligation of confidentiality shall also apply to its employees and authorized third parties. Confidential information in this Article is understood to be:

I)

The Material on deposit;

II)

Information disclosed to Escrow Agent under notification of confidentiality.

6.2 On termination of this Agreement, provisions with respect to the confidentiality clauses will survive.

ARTICLE 7 - RELEASE

7.1 These release terms provide for the release of the Material to the Beneficiary upon the occurrence of:

I)

Client applies for bankruptcy or is declared bankrupt, or ceases to exist as an entity (‘Release Event 1’);

II)

Client is declared insolvent, or has demonstrated not being able to meet financial requirements for a period of more than 60 consecutive days (‘Release Event 2’);

Except as provided below in Section 7.4, Client confirms and agrees that Escrow Agent will be the sole and only judge for determining if the release should or should not be granted to Beneficiary for these situations described in these release terms. In order to adhere to the continuity needs of the Beneficiary, Escrow Agent will apply a procedure where Client and Beneficiary will be heard on their opinions on the matter before Escrow Agent will make a final decision on the validity of the release claim.

7.2 If, in the opinion of Beneficiary, a circumstance defined under Clause 7.1 above occurs and Beneficiary requests the release of the Material on the basis thereof, Beneficiary shall send a notice to this effect via email and/or by registered letter to Client and Escrow Agent and detailing the facts supporting the Release Event and containing within such a notice all reasonable evidence as Beneficiary has in its possession to support its request for release. If there is a reference in the release terms to the License Agreement, Escrow Agent shall be provided with a copy of the License Agreement between Client and Beneficiary in order to determine if a release event has taken place.

7.3 Upon receipt of such notice as set out under Clause 7.2 above, Escrow Agent shall initiate a Release Validation process. Time spent to process the Release Validation will automatically be charged to Client and/or Beneficiary depending on the situation.

Escrow Agent shall within seven (7) days serve notice in writing to Client via email that a request for the release of Material has been received. Client shall have fifteen (15) days from the date of this notice from Escrow Agent to register any objection to such release. If Client fails to register an objection within the stated fifteen (15) days, Escrow Agent shall be entitled to promptly release the Material to Beneficiary.

7.4 If, within the term set out under Clause 7.3 above, Client raises a written objection against the release and supports such an objection with reasonable evidence, then parties shall submit the question of Beneficiary’s right to such release to the Foundation for the Settlement of Automation Disputes (SGOA - www.sgoa.eu), to be resolved in accordance with its rules for summary arbitration proceedings as stated in its Rules of Arbitration. The decision of the Foundation for the Settlement of Automation Disputes shall be final and binding on all parties and shall not be subject to appeal to a court in legal proceedings.

7.5 If Client suffers bankruptcy or a state of bankruptcy protection, then Client shall have no right of objection under Clause 7.3 above and the Material will immediately be released after the Release Validation process by Escrow Agent in which the status of the bankruptcy will be validated and confirmed. Client agrees to accept the Escrow Agent validation process and result as determined solely by Escrow Agent.

7.6 In the event that Escrow Agent releases the Material to Beneficiary pursuant to the provisions in this Article, Client and/or other rights-holders from whom Client derives its rights, grants Beneficiary now, for then, the non-exclusive right to use the Material for Continuity Purposes only within the framework of its own operations.

7.7 Escrow Agent shall only initiate release procedures to Beneficiaries within a period of six (6) months after the Release Event triggers.

ARTICLE 8 – WARRANTIES

8.1 Client warrants and represents that it is entitled to transfer the Material to Escrow Agent pursuant to the provisions of the Agreement and agrees to indemnify and hold harmless Escrow Agent from and against any claim by a third party in relation to the verification and/or release of the Material hereunder.

8.2 Client warrants that the Material is an accurate and complete representation of the Product at the time of deposit.

8.3 Client warrants to Beneficiary that the Material as deposited with Escrow Agent is sufficient to enable a qualified person to continue to maintain, correct, modify, and compile the Product.

8.4 Beneficiary warrants and represents to Client, in the License Agreement between Client and Beneficiary, that it shall exclusively use any Material which is made available under the License Agreement for Continuity Purposes only and for the use thereof solely in connection with the internal business of Beneficiary. Beneficiary is reminded that certain conditions of the License Agreement continue to apply to the use of the Material, including, but not limited to, the conditions of Confidentiality, Limited Rights to Copy, Limited Right to Use, and Intellectual Property Rights.

8.5 Due to the License Agreement between Client and Beneficiary, Beneficiary is explicitly forbidden from making any use of the Material other than stated in this Agreement. Client reserves the right to pursue other legal remedies in addition to the penalty set above if Beneficiary is proven to be in breach of this condition.

8.6 If Beneficiary enters into an agreement with a third party for the maintenance, correction and/or modification of the Product, Beneficiary warrants that it shall impose upon third party the obligations as set out in Clause 8.4 and Clause 8.5 above.

ARTICLE 9 – LIABILITY

9.1 Escrow Agent will not be liable to Client and/or Beneficiary for direct or indirect damage to the Material or any other damage arising out of or in connection with the legal or operational performance of the Agreement or its execution by Escrow Agent.

9.2 Escrow Agent shall not be liable for any indirect or direct damage including, but not limited to, industrial damage, loss of profits and/or other consequential damages of any kind or cause.

9.3 Escrow Agent shall be responsible for the diligent execution of its storage responsibilities. Escrow Agent is not responsible for the completeness, accuracy, operation, functionality, or effectiveness of the Material as such.

9.4 Client or, in the event that the Escrow Agent has released the Material to Beneficiary, Beneficiary shall indemnify Escrow Agent from and against any and all claims, including those by third parties, which arise out of or are otherwise connected with the release of the Material under the Agreement.

9.5 Client agrees the escrow service provided by Escrow Agent does not constitute legal advice or legal service or any other form of legal consultancy. The service is provided as is, without any warranty or guarantee.

ARTICLE 10 - TERM OF THE AGREEMENT

10.1 The Agreement shall commence on the date that the Client has signed up on the website and shall be entered into for indefinite time.

10.2 Escrow Agent may upon three (3) months’ notice terminate the Agreement by delivery of notice to this effect by recorded delivery to Client and Beneficiary.

10.3 Client, having deposited the Material on behalf of Beneficiary, has no right to unilaterally terminate or amend the Agreement without the prior written consent of Beneficiary being provided to Escrow Agent. If the Beneficiary agrees to termination of the Agreement, Client can terminate the Agreement observing a three month notice period before the next renewal date of the subscription period (annual or monthly).

ARTICLE 11 – PAYMENT OF FEES

11.1 For the services to be rendered to Client under the Agreement, Client shall be due to pay the fees as specified on the Escrow Agent’s website.

11.2 The initial fee will be charged by the Escrow Agent to the Client after signing up on the Escrow Agent’s website and when changes are made to the services delivered under the Agreement.

Escrow Agent shall then charge and invoice Client the monthly or annual fee upon signing up on the website and thereafter monthly or annual upon the anniversary date for the subscription period.

11.3 Escrow Agent is authorized to readjust the monthly or annual fees in accordance with the annual general price index as published by the Dutch Central Statistical Office (CBS).

11.4 Payment of invoices rendered by Escrow Agent shall be due within thirty (30) days of the invoice date. If the invoice is not paid by the due date, Client shall be liable for interest (5% pro annum) for the period that payment has been delayed.

11.5 In the event Client fails to make payments, Client and Beneficiary are not entitled to invoke the provisions of this Agreement and Escrow Agent shall therefore not be obliged to release the Materials to Beneficiary.

11.6 In the event of a termination of the Agreement, Escrow Agent shall have no obligation to refund all or part of any, charged or paid, fees hereunder. In the event of a termination as described under 10.2 Escrow Agent will prorated refund any paid fees applicable to the period after the date of termination.

ARTICLE 12 – ASSIGNMENT

12.1 Client undertakes reasonable efforts to make the terms of the Agreement part of any transfer of the intellectual property rights of the Product to a third party.

12.2 In such a case Client shall inform in writing both Beneficiary and Escrow Agent.

ARTICLE 13 – MISCELLANEOUS

13.1 In all cases where the Agreement mentions the obligations to give written notice by registered letter, such notice shall be sent to the official registered address or the registered email address in this Agreement.

13.2 Where the word ‘writing’ is mentioned in this Agreement, this also means by email, unless otherwise specified.

13.3 {Depending on Client location}

ARTICLE 14 - CLIENT

14.1 Client contact and registration information:
{Customer Name}
{Client name}
{Address}
{Contact person}
{Email address}
{Phone number}

14.2 Client certifies that this information is correct and agrees that Escrow Agent will treat this information as complete and valid for the purposes of this Escrow Agreement.

ARTICLE 15 - BENEFICIARY

15.1 Client names the entity below as Beneficiary within the context of this Agreement:
{Beneficiary Name}
{Client name}
{Address}
{Contact person}
{Email address}
{Phone number}

15.2 Client certifies that this information is correct and agrees that Escrow Agent will treat this information as complete and valid for the purposes of this Escrow Agreement.

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