Software Source Code Escrow Agreement

1. Software Source Code Escrow Agreement Form
2. Software Source Code Escrow Agreement Sample
3. Software License Agreement Source Code Escrow

Source Code Escrow Agreement

An agreement for placing and maintaining software source code, documentation, and related materials in escrow with a third-party escrow agent under the terms of a software license agreement, with instructions on how to adapt the agreement for use under a software as a service (SaaS) agreement. Software escrow means deposit of the software’s source code into an account held by a third party escrow agent. Escrow is typically requested by a party licensing software (the 'licensee'), to. Erally, the source code is held in an escrow account by a neutral third party. Source code escrow agreements, if used, are typically attached to software license agreements (whether for custom development or not), and the provision triggering the release of source code is typically part of the software license agreement.1. Source code escrow for developers An all-in-one solution for software developers and publishers to provide their clients with source code escrow as part of their service level and/or license agreements. Since 1992 over half of the Fortune 500 companies have trusted JC Escrow with their software escrow and source code escrow needs. Learn how our software escrow services can help you. With a software escrow contract, the developer’s source code (or other technology/intellectual property) is managed in a secure escrow account held by a designated, neutral, and trusted third party.

This Software Source Code Escrow Agreement ('Agreement') is madeand effective

by and between _________________________________________('EscrowAgent') and _______________________________________________________('Developer').

Developer licenses the use of certain computer programs tocertain users pursuant to license agreements. Continuousavailability of such programs and maintenance related to them arecritical to those users. Developer performs necessary maintenanceand modification of its programs for its users without disclosingsuch documentation to them or other persons.

Developer wishes to protect the integrity of its programs fromduplication, theft or other misappropriation by maintaining them instrict confidence as trade secrets, and wishes to inure thatmaintenance for Developer's software is available in the eventDeveloper fails to fulfill its maintenance obligations or in theevent Developer does not remain in business.

Escrow Agent is in the business of providing third partysoftware escrow protection by storing, retaining and allowinglimited access to proprietary computer software, related media andmaterials.

Therefore the parties agree as follows:

1. Purpose of Agreement.

This Agreement establishes an arrangement under which:

A. Developer will store with Escrow Agent certain computerprogram source code for the program(s) identified on Exhibit A.attached, along with duplication instructions, flow charts,manuals, and other information necessary or appropriate forduplication and maintenance of said program(s) (the 'Materials');and

B. A 'User' (as defined below) will be able to secure fromEscrow Agent access to the Materials enumerated in its agreementwith Developer and stored under this Agreement, under thecircumstance, and subject to the terms and conditions, specifiedbelow. For these purposes a 'User' is any licensee of one ofDeveloper's computer software programs included with the Materialswho: (i) is listed on Schedule I hereto, as it may be amended fromtime to time following notice from Developer, and (ii) has signed a'License Agreement' with Developer, including the right of User toreceive the Materials upon any of the following ('Event ofDefault'):

(a) Developer has filed a petition in bankruptcy, or has made ageneral assignment for the benefit of creditors or has had areceiver appointed for all or substantially all of its business, orhas been liquidated, or dissolved.

(b) The appointment of a trustee or receiver, voluntary orinvoluntary (or similar such official) of all or a substantial partof the property of Developer under the Bankruptcy Code or any statecourt receivership proceedings, which appointment remainsundismissed for at least 30 days.

(c) An adjudication, judgment, order or binding arbitrationaward to the effect that Developer has failed to provide themaintenance or modification obligations required of it under theLicense Agreement.

(d) Developer ceases its operations or business or discontinueslicensing or maintenance of the Materials.

C. Each such License Agreement must also provide that Userexpressly acknowledge and agree that Escrow Agent will not beliable to such User for any harm that results from any act oromission of Escrow Agent in connection with serving as escrowagent.

2. Materials.

A. Escrow Agent acknowledges (i) that Developer claims that theMaterials contain information that includes trade secrets ofDeveloper or another person; and (ii) that the Materials areintended to constitute items useful to persons reasonably skilledin computer technology for providing maintenance and/ormanufacturing documentation support for computer software productsDeveloper licensed to its Users, in the event that any of theseUsers becomes entitled to receive them.

B. From time to time during the escrow, Developer will furnishfor User benefit then current Materials to Escrow Agent that areeither new Materials or in substitution for Materials in EscrowAgent's possession, and Developer shall identify the priorMaterials that are superseded. Escrow Agent shall return toDeveloper such superseded Materials, provided they can besegregated conveniently. Escrow Agent is not responsible forenforcing or performing any obligation of Developer to Users tofurnish then-current Materials.

C. Developer acknowledges that Escrow Agent does not intend, andis not expected, to open any package represented to containMaterials, except in the circumstance identified in Section 4below, and hence, is not responsible for determining whether theMaterials are useful and has no obligation to enforce Developer'sduties under this Agreement.

D. Developer will retain copies of Materials left in EscrowAgent's possession and will furnish replacements of Materials toEscrow Agent promptly after each written request and withoutcharge. However, if the reason for the request is that, throughEscrow Agent's negligence or misconduct, any Materials were lost ordamaged, Escrow Agent will reimburse Developer for the cost of thephysical media so lost or damaged (but not for any costs incurredin re-recording or reconstructing the information recorded on suchmedia).

3. Treatment of Material.

A. Escrow Agent will not furnish any Materials to any personother than Developer or a User so-entitled, except pursuant to abinding arbitration decision or final order of a court of competentjurisdiction, and will furnish Materials only pursuant to theprovisions of this Agreement, or pursuant to such arbitrationdecision or court order. Escrow Agent shall not be required toincur any expense to challenge any arbitration decision or courtorder.

B. Escrow Agent will protect the Materials from disclosure tounauthorized persons by the use of the same measures it uses toprotect its own software and documents of equivalentsensitivity.

C. Escrow Agent shall store the Materials in a climatecontrolled, secured storage area under the control of the EscrowAgent.

4. Release of Documentation.

A. Upon the occurrence of any Event of Default (as defined inSection 1) any User may notify Escrow Agent in writing as to suchEvent of Default ('Notice'), and shall simultaneously provide acopy of any such Notice to Developer. Unless Developer shall haveprovided 'Contrary Instructions' to Escrow Agent within ten (1 0)business days after Escrow Agent's receipt of such Notice, withinfive (5) business day following the end of such ten (1 0) dayperiod, Escrow Agent shall deliver a copy of the Materials then inescrow to such User; provided, however, that Escrow Agent shall beunder no obligation to deliver a copy of such Materials until suchUser has first paid to Escrow Agent the cost and expenses ofreproduction and delivery of the Materials. Delivery to User shallterminate all duties and obligations of Escrow Agent to that User,and to Developer with respect to that User and with respect to thecopy of the Materials delivered to that User.

B. 'Contrary Instructions' for the purposes of this EscrowAgreement means a notarized affidavit executed by an officer ofDeveloper stating that an Event or Events of Default specified inthe User's Notice have not occurred, or have been cured.

C. Upon timely receipt of such Contrary Instructions, EscrowAgent shall not release a copy of the Materials then in escrow, butshall continue to store the Materials until otherwise directed bythe User and Developer jointly, or until resolution of the disputeby a court of competent jurisdiction or binding arbitrationorder.

D. Developer shall be entitled to receive payment for costs,fees and expenses due it prior to any release of a copy of theMaterials.

E. Developer represents and warrants that its agreements withUsers shall provide Users rights and obligations consistent withthe provisions of this Section 4.

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5. Fees.

A. In consideration of performing its functions as Escrow Agent,Escrow shall be paid by Developer as set forth in Exhibit B. Thefees set forth in Exhibit B will be billed periodically by EscrowAgent to Developer. Developer shall pay amounts due within thirty(30) days of receipt of Escrow Agent's invoice.

B. The fees set forth in Exhibit B are for the ordinary servicesof Escrow Agent. In the event Escrow Agent is required to performadditional or extraordinary services not contemplated in thisAgreement, including intervention in any litigation or proceeding,Developer shall pay Escrow Agent reasonable compensation for suchservices and reimburse Escrow Agent for reasonable costs incurred,including attorney's fees.

6. Discharge of Escrow Agent.

A. Escrow Agent will be deemed discharged if Developer removesall the Material from Escrow Agent's premises or requests that allmaterial be removed, in writing. Except as otherwise providedherein, Developer may do this at any time, entirely in itsdiscretion, by giving at least thirty (30) days' prior notice toEscrow Agent who, upon receipt of Developer's notice, shall notifyall Users.

B. Escrow Agent may resign, at its discretion, by givingDeveloper and all Users at least thirty (30) days' prior notice.Promptly after that resignation becomes effective, Escrow Agentwill furnish to Developer all Material in its possession.

C. Whenever Escrow Agent ceases to hold the Materials in escrow,it will send a notice to that effect promptly to all Users.

7. Bankruptcy.

Developer acknowledges that this Agreement is an 'agreementsupplementary' to each License Agreement as provided in Section365(n) of Title 11, United States Code ('Bankruptcy Code') asamended. Developer acknowledges that if Developer as a debtor inpossession or a trustee in bankruptcy in a case under theBankruptcy Code rejects a License Agreement or this Agreement, eachUser may elect to treat its License Agreement and this Agreement asterminated or to retain its rights under the License Agreement andthis Agreement as provided in Section 365(n) of the BankruptcyCode. If a User elects to retain its rights under the LicenseAgreement and this Agreement, then upon written request of the Userto Developer or the bankruptcy trustee, Developer or suchBankruptcy Trustee shall not interfere with the rights of User asprovided in the License Agreement and this Agreement, including theright to obtain the Materials from Escrow Agent.

8. Indemnity and Liability of Escrow Agent.

A. Developer will indemnify Escrow Agent for, and hold itharmless against, any loss, cost, suit, damage, claim or expenseincurred or suffered in connection with, or as a result of, servingas escrow agent, except any suffered as a result of Escrow Agent'snegligent or intentional acts.

B. Except for liability to Developer for a breach of thisAgreement, Escrow Agent will not be liable to Developer, any User,or any other person for any harm that results from any act oromission of Escrow Agent in connection with its serving as EscrowAgent, except in the case of Escrow Agent's negligence.

9. Notices.

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Any notice required by this Agreement or given in connectionwith it, shall be in writing and shall be given to the appropriateparty by personal delivery or a recognized over night deliveryservice such as FedEx.

If to the Developer:_____________________________________________________.

If to the Escrow Agent:___________________________________________________.

10. No Waiver.

The waiver or failure of either party to exercise in any respectany right provided in this agreement shall not be deemed a waiverof any other right or remedy to which the party may beentitled.

11. Entirety of Agreement.

The terms and conditions set forth herein constitute the entireagreement between the parties and supersede any communications orprevious agreements with respect to the subject matter of thisAgreement. There are no written or oral understandings directly orindirectly related to this Agreement that are not set forth herein.No change can be made to this Agreement other than in writing andsigned by both parties.

12. Governing Law.

This Agreement shall be construed and enforced according to thelaws of the State of ____________________ and any dispute underthis Agreement must be brought in this venue and no other.

13. Headings in this Agreement

The headings in this Agreement are for convenience only, confirmno rights or obligations in either party, and do not alter anyterms of this Agreement.

14. Severability.

If any term of this Agreement is held by a court of competentjurisdiction to be invalid or unenforceable, then this Agreement,including all of the remaining terms, will remain in full force andeffect as if such invalid or unenforceable term had never beenincluded.

In Witness whereof, the parties have executed thisAgreement as of the date first written above.

_________________________ _______________________

Developer Escrow Agent

___________________

Date

Exhibit A: Developers Products Subject to Escrow

Exhibit B: Escrow Agents Compensation

A. Annual Escrow Fee. Developer will pay Escrow Agent an annualfee of per product.

B. Participating User Fee. Developer will pay Escrow Agent anannual fee of $________________.

C. Update Fee. Developer will pay Escrow Agent a separate feefor the update of Materials.

D. Release fee to Users. Users will pay a fee for each requestfor release of materials.

Exhibit 3: Schedule List of Developers Users with SoftwareSource Code Agreements attached.

The following are Users of Developer's Computer Software Programwho may acquire Materials pursuant to the Escrow Agreement, andwhat exact Materials they are entitled to receive under the termsof the Escrow Agreement.

Customers Materials

____________________ ______________________

Developer Acknowledged by Escrow Agent

Source Code Escrow Agreement

Review List

This review lists is provided to help you complete the SourceCode Escrow Agreement and ensure the necessary steps are taken tomake it effective. Source Code agreements came into being becausevery small and unstable software companies were doing missioncritical work for large corporations. To protect theconfidentiality of the software company, but protect the interestsof the large corporations dependent on the software, the SourceCode Escrow Agreement emerged as a solution to the problem. It hasworked very effectively in the B2B software business.

1. The Software Source Code Escrow Agreement calls for placingcomputer software programs and related materials in escrow for thebenefit of licensee users of the programs. In certain situations, aprogram user is entitled to retrieve the source code and relatedmaterials from the escrow agent to ensure the continued operationof the program. Make sure these terms are appropriate for yoursituation.

2. Laws vary from state to state and change over time. Beforeusing this document, have your attorney review it. Buyers of thesoftware licenses should be aware that the major risk is a partyclaiming a security interest in the Source Code residing at theEscrow Agent and being able to prevent customers from recoveringit. A protection against this potential claim appears when the enduser, or customer/buyer, is responsible for paying for the releaseof the software.

3. Print multiple copies so the parties can have the a copy ofthe signed Agreement and so the sales people for the Developer canhave blank copies available for inspection and signature in futuresales agreements.

Are you allowed to download the source code for a open source program?

Yes. Open source means the source code is accessible. Your usage of the source is subject to licence agreement.

Meaning of open source OS?

The source code is freely available, in accordance with the licence agreement.

What is opensource?

The opposite of closed source. Open source means the user has access to the source code and can modify it to suit their needs. Depending on the licence agreement, modified open source code can also be sold to third-parties.

Is Open Office a type of open-source software?

Yes. The source code for Open Office.org is freely available. You can download it, modify it and compile it but you are not permitted to sell it as stipulated in the GNU license agreement.

Who does AirTran Airways have a codesharing agreement with?

AirTran Airways has a code sharing agreement with Southwest Airlines. Previously, it had a code sharing agreement with Sky West Airlines. AirTran Airways entered into the code sharing agreement with Southwest Airlines on February 14, 2013.

Software Source Code Escrow Agreement Form

What the difference between open source and licensed software?

Open source is a set of principles and practices on how to write software. Literally 'open source' means the source code is available to the users. The Open Source Definition, which was created by Bruce Perens and Eric Raymond and is currently maintained by the Open Source Initiative, adds additional meaning to the term. One should not only get the source code but also have the right to use it. If the latter is denied…

Why do you need to translate a source code into machine code?

computer's C.P.U run machine code and does not understand the source code and compiler translate the source code into machine code.

Why you need to translate a source code into machine code?

The computer's CPU run machine code and does not understand source code. The compiler is used translate the source code to machine code.

What is the definition of open source software?

Open source software is software where the authors have granted access to some or all of the source code. Open source software is not necessarily free software, but it gives end-users much greater freedom compared to closed source software, provided the software is used in accordance with the licence agreement.

Is Source Code the same as CSS Code?

It can be but source code is just the code of a webpage. Whatever format it is.

Is language translator translate source code into machine code?

which program is used to translate source code into machine code

Why would you use a compiler to translate the program into object code?

The computer doesn't directly understand the source code; it understands machine code. The compiler's role is to translate the source code (readable by humans) into machine code (readable by the CPU). The computer doesn't directly understand the source code; it understands machine code. The compiler's role is to translate the source code (readable by humans) into machine code (readable by the CPU). The computer doesn't directly understand the source code; it understands machine code. The…

Explain the example of open source application software?

AN example would be Open Office. Answer: Open Source software is defined as any software where the source code programming is open and allows the user to view, change and improve the code. The most popular type of Open Source software is Linux. The Apache HTTP server project, Open Office, and Android (the Google Phone OS) are examples as well. Open Source is the opposite of closed source and is often licenced under the GNU…

Software license agreements often include a source code escrow arrangement that allows the customer to access and use source code for the licensed software if specific events occur. If a customer requires the self-help remedy that source code can provide, then the customer should request and properly administer an appropriate source code escrow arrangement.

Object Code and Source Code

A computer program is usually written in a programming language (e.g. C++ or Java) that can be read, understood and modified by knowledgeable programmers. The resulting version of the computer program is known as “source code”, and is converted (“compiled”) into machine language format, known as “object code” or “machine code”, which can be installed and run on a computer. Object code is not easily read or understood by programmers and is difficult to modify. Consequently, in most circumstances programmers must have access to a computer program’s source code and related materials (e.g. explanatory notes and instructions) in order to modify (e.g. to fix a bug or error) or enhance (e.g. to add new functionality) the program.

Source Code Distribution

Software vendors usually provide customers with copies of licensed software in object code version only. There are numerous reasons for this approach, including: (1) source code is valuable intellectual property, and unauthorized use or disclosure of source code can cause significant loss or irreparable harm to the vendor; and (2) customers that do not have access to source code are more likely to purchase software maintenance and other services from the vendor. This arrangement can be beneficial for customers that use commercial off-the-shelf software, because the software vendor is usually able to cost- effectively maintain the software for the benefit of all customers.

Nevertheless, in some situations (e.g. if licensed software is expensive to acquire and implement, custom developed for the customer, not easily or quickly replaced or essential for the customer’s daily business operations), a customer might not want to rely entirely on the software vendor to provide required software maintenance services. Instead, the customer might require a supplemental, self-help remedy – a right to access and use source code to maintain the licensed software if the vendor is unwilling or unable to do so – provided through a source code escrow arrangement.

Source Code Escrow

Source code escrow refers to a three-way arrangement – between a software vendor, one or more customers and a trusted third party (an “escrow agent”) – that provides the customer with access to the source code and related materials for licensed software if a specified event (known as a “release event”) occurs. The most common release events are the software vendor’s bankruptcy and the software vendor’s breach of its contractual obligation to provide software maintenance services. If a release event occurs, the customer is entitled to access and use the source code and related materials to maintain the licensed software for use by the customer, but not for any other purpose.

The fundamental elements of a source code escrow arrangement include: (1) an obligation on the software vendor to periodically deposit with the escrow agent up-to-date versions of the source code and related materials; (2) a procedure for the customer to periodically verify the vendor’s compliance with the deposit obligations and the quality of the deposited source code and related materials; (3) appropriate, clearly defined and verifiable release events; (4) a license for the customer to use the source code and related materials if they are released from escrow; and (5) a procedure for the prompt resolution of disputes (e.g. a dispute over whether a release event has occurred).

Recommendations

Software Source Code Escrow Agreement Sample

When a customer negotiates a software license agreement, the customer should consider whether the customer requires a source code escrow arrangement. The need for a source code escrow arrangement, and the value it will provide to the customer, will depend on various circumstances, including: (1) the importance of the licensed software to the customer and the likely cost and time required to replace the software; (2) the probability that the software vendor will fail to provide promised software maintenance services; (3) the quality and completeness of deposited source code and related materials; (4) the probability of a dispute over whether a release event has occurred and the customer’s ability to resolve the dispute in a timely manner; and (5) the customer’s technical and financial ability to use the source code materials to maintain the licensed software.

In many situations, a customer might be better off replacing licensed software rather than attempting to use source code to maintain the software if the software vendor fails to do so. Nevertheless, a source code escrow arrangement might benefit the customer by creating an incentive for the software vendor to perform the vendor’s software maintenance obligations.

Software License Agreement Source Code Escrow

If a customer requires the self-help remedy that source code can provide, then the customer should request a source code escrow arrangement and properly administer the arrangement by periodically verifying that the software vendor has deposited appropriate source code and related materials for the licensed software.