SOURCE CODE ESCROW AGREEMENT

State of Mississippi

Tri-Party Technology Escrow Agreement

AGREEMENT NUMBER: [________________________________]

EFFECTIVE DATE: [__/__/____]

This Source Code Escrow Agreement (this "Agreement") is entered into as of the Effective Date by and among the following three parties:

TABLE OF CONTENTS

1. Parties and Recitals
2. Definitions
3. Deposit Materials
4. Deposit and Update Procedures
5. Verification and Testing
6. Release Conditions
7. Release Procedures
8. Post-Release License Rights
9. Fees and Payment
10. Confidentiality and Security
11. Trade Secret Protections
12. Intellectual Property
13. Warranties and Disclaimers
14. Indemnification
15. Limitation of Liability
16. Term and Termination
17. Governing Law and Dispute Resolution
18. Mississippi-Specific Provisions
19. Miscellaneous
20. Signatures
21. Schedules

1. PARTIES AND RECITALS

1.1 Parties

LICENSOR (Depositor):

Name: [________________________________]
State of Formation: [________________________________]
Principal Address: [________________________________]
City, State, ZIP: [________________________________]
Contact Person: [________________________________]
Email: [________________________________]
Phone: [________________________________]

BENEFICIARY (Licensee):

Name: [________________________________]
State of Formation: [________________________________]
Principal Address: [________________________________]
City, State, ZIP: [________________________________]
Contact Person: [________________________________]
Email: [________________________________]
Phone: [________________________________]

ESCROW AGENT:

Name: [________________________________]
State of Formation: [________________________________]
Principal Address: [________________________________]
City, State, ZIP: [________________________________]
Contact Person: [________________________________]
Email: [________________________________]
Phone: [________________________________]

1.2 Recitals

WHEREAS, Licensor has developed, owns, and maintains proprietary software known as [________________________________] (the "Product");

WHEREAS, Licensor and Beneficiary have entered into that certain [Software License Agreement / SaaS Subscription Agreement / Master Services Agreement] dated [__/__/____] (the "Underlying Agreement");

WHEREAS, Beneficiary desires to ensure continuity of access to the Product in the event Licensor is unable or unwilling to continue support;

WHEREAS, Licensor is willing to deposit source code and related materials with a neutral escrow agent;

WHEREAS, Escrow Agent provides technology escrow services and will hold and manage the Deposit Materials;

WHEREAS, the parties intend for this Agreement to be governed by Mississippi law and acknowledge that the Deposit Materials may constitute trade secrets under the Mississippi Uniform Trade Secrets Act (Miss. Code Ann. §§ 75-26-1 to 75-26-19); and

WHEREAS, the parties desire to establish the terms for holding and releasing the Deposit Materials.

NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:

2. DEFINITIONS

2.1 "Affiliate" means any entity controlling, controlled by, or under common control with a party.

2.2 "Build Environment" means the hardware, software, tools, and configurations necessary to compile, build, and deploy the Product from Source Code.

2.3 "Confidential Information" means information designated or reasonably understood as confidential, including Deposit Materials, Agreement terms, and business/technical information.

2.4 "Cure Period" means the time for Licensor to cure a default before it becomes a Release Event.

2.5 "Deposit Materials" means Source Code, Documentation, Build Environment specifications, Third-Party Components, and all materials in Section 3 and Schedule B.

2.6 "Documentation" means technical documentation, diagrams, schemas, specifications, manuals, and guides necessary for understanding, compiling, deploying, and maintaining the Source Code.

2.7 "Effective Date" means the date in the preamble.

2.8 "Force Majeure Event" means events beyond reasonable control including acts of God, war, terrorism, pandemic, natural disasters, government action, labor disputes, power failure, or cyberattack, excluding financial inability.

2.9 "Intellectual Property Rights" means all patents, copyrights, trademarks, trade secrets, and related rights.

2.10 "Product" means [________________________________], including all versions and modifications under the Underlying Agreement.

2.11 "Release Conditions" and "Release Event" mean the conditions and events in Section 6.

2.12 "Release Request" means a written request from Beneficiary for release of Deposit Materials.

2.13 "SaaS Service" means the hosted or cloud-based Product, if applicable.

2.14 "Source Code" means the human-readable form of the Product's software.

2.15 "Third-Party Components" means third-party software incorporated into or required for the Product.

2.16 "Underlying Agreement" means the agreement referenced in Section 1.2.

2.17 "Verification" means the inspection, testing, or audit of Deposit Materials per Section 5.

3. DEPOSIT MATERIALS

3.1 Scope

Licensor shall deposit: (a) complete Source Code; (b) build scripts, configuration files, and Build Environment specifications; (c) Third-Party Components with license agreements; (d) complete Documentation; (e) database schemas, migration scripts, and seed data; (f) automated test suites and frameworks; (g) deployment scripts and containerization files; and (h) version control repository export.

3.2 Format

Industry-standard, machine-readable formats. Source Code in plain text with original directory structure. Documentation in PDF, HTML, or Markdown. Free of malware and malicious code.

3.3 Inventory

Written inventory per Schedule B with version, date, file names, sizes, and SHA-256 hash values.

4. DEPOSIT AND UPDATE PROCEDURES

4.1 Initial Deposit

Within [____] calendar days after the Effective Date, reflecting the current production version.

4.2 Update Deposits

(a) No less than [quarterly / semi-annually / annually], and within [____] days of each major/minor release.

(b) Within [____] days of material changes.

(c) Complete, current materials each time.

4.3 Procedures

Secure transmission. Intake review by Escrow Agent. Confirmation within [____] business days. Discrepancies cured by Licensor within [____] business days.

4.4 Certification

Per Schedule B: completeness, accuracy, sufficiency, authority, and no malicious code.

5. VERIFICATION AND TESTING

5.1 Rights

Beneficiary may request at its expense, no more than [once / twice] per year unless justified.

5.2 Levels

(a) Level 1 — Inventory. File presence, sizes, hashes, integrity. [____] business days.

(b) Level 2 — Compilation. Level 1 plus Build Environment review, compilation, executable production. [____] business days.

(c) Level 3 — Full Functional. Levels 1-2 plus deployment, testing, functional verification. [____] business days.

5.3 Procedures

Written request with level specified. Copy to Licensor within [____] business days. Licensor cooperates. Report to both parties.

5.4 Remediation

Cure deficiencies within [____] business days. Failure relevant to Release Conditions. Supplemental at Licensor's cost.

5.5 Confidentiality

Personnel sign confidentiality agreements. Secure environment. No copies retained.

6. RELEASE CONDITIONS

6.1 Release Events

(a) Bankruptcy or Insolvency. Voluntary or involuntary petition (not dismissed within 60 days); general assignment; receiver appointment (not discharged within 60 days); adjudication of bankruptcy; written admission of inability to pay debts.

(b) Cessation. Cease ordinary operations; cease Product support without suitable successor; dissolution or liquidation.

(c) Material Breach. Uncured breach of support/maintenance for [____] days after notice; failure to provide critical security patches.

(d) SaaS Unavailability. Continuous unavailability for [____] days (excluding Force Majeure and maintenance); service level failures for [____] consecutive months; discontinuation without transition.

(e) Deposit Failures. Uncured for [____] days after notice.

(f) Escrow Breach. Material breach uncured for [____] days after notice.

6.2 Exclusions

Change of control with assumption; Force Majeure interruptions; scheduled maintenance; natural expiration; fee disputes with continued performance.

6.3 Section 365(n) Protections

License rights are "intellectual property" under 11 U.S.C. § 101(35A). Beneficiary may retain rights under § 365(n).

7. RELEASE PROCEDURES

7.1 Request

Per Schedule D: description, dates, sworn affidavit, supporting documentation, compliance certification. Copy to Licensor within [____] business days.

7.2 Response

[____] business days to object or consent. Silence is consent.

7.3 Objection

No release except by joint instruction, court order, or arbitration award. Good-faith negotiation for [____] days, then Section 17 procedures.

7.4 Emergency Release

Interim read-only access upon emergency showing, with supplemental confidentiality and Licensor notice. Return or destruction if denied.

7.5 Delivery

Within [____] business days via secure method per Schedule A.

8. POST-RELEASE LICENSE RIGHTS

8.1 License Grant

Non-exclusive, non-transferable, irrevocable, royalty-free license to use, reproduce, compile, build, deploy, operate, maintain, modify, and create derivative works solely for continuing Product use under the Underlying Agreement.

8.2 Restrictions

No competitive use; no distribution (except 8.3); no reverse engineering of unreleased portions; usage limits; Third-Party Component compliance.

8.3 Sublicense to Contractors

With confidentiality agreements, Beneficiary responsibility, no retained copies.

8.4 Post-Release Obligations

Confidentiality, records, security, and notification of unauthorized access.

8.5 Duration

For the period Beneficiary would have used the Product absent the Release Event.

9. FEES AND PAYMENT

9.1 Fee Schedule

Per Schedule A: Setup, Annual Storage, Deposit Processing, Verification (Levels 1-3), Release Processing, Additional Services.

9.2 Payment Responsibility

Setup/Storage by [Licensor / Beneficiary / shared]; Deposit Processing by Licensor; Verification by Beneficiary (supplemental at Licensor's cost); Release Processing by Beneficiary.

9.3 Payment Terms

(a) Within [____] days of invoice.

(b) Late payments bear interest at one and one-half percent (1.5%) per month or the maximum permitted under Mississippi law, whichever is less. Pursuant to Miss. Code Ann. § 75-17-1, the legal rate of interest is eight percent (8%) per annum. However, for contracts where the principal balance exceeds two thousand dollars ($2,000), the parties may contract for any finance charge agreed to in writing, regardless of the amount exceeding otherwise allowed rates. Partnerships, joint ventures, and corporations may contract for rates up to fifteen percent (15%) per annum or five percent (5%) above the discount rate, whichever is greater, on contracts exceeding two thousand five hundred dollars ($2,500).

(c) The parties acknowledge the specified rate is a lawful contractual rate. Usurious interest shall be forfeited per Miss. Code Ann. § 75-17-1(3).

(d) Escrow Agent has a lien for unpaid fees, not impeding valid release except for Beneficiary fees more than [____] days past due.

9.4 Fee Adjustments

Annual increases upon [____] days' notice, not exceeding [____] percent without consent.

10. CONFIDENTIALITY AND SECURITY

10.1 Obligations

Strict confidence; use solely for Agreement purposes; reasonable degree of care; access limited to need-to-know personnel bound by equivalent obligations.

10.2 Exceptions

Publicly available; public without fault; previously possessed; from authorized third party; independently developed.

10.3 Permitted Disclosures

Required by law or court order, with prompt notice, cooperation, and minimum disclosure.

10.4 Escrow Agent Security

Physical security; AES-256 at rest, TLS 1.2+ in transit; multi-factor authentication; audit logging for [____] years; geographically redundant storage; annual assessments; SOC 2 Type II compliance.

10.5 Data Breach Notification

(a) Escrow Agent shall notify Licensor and Beneficiary without unreasonable delay.

(b) Pursuant to Miss. Code Ann. § 75-24-29, any person conducting business in Mississippi shall disclose a breach of security to all affected individuals without unreasonable delay, subject to completion of an investigation to determine the nature and scope. Notification is not required if, after investigation, there is no reasonable likelihood of harm. Failure to comply constitutes an unfair trade practice enforced by the Mississippi Attorney General.

(c) The parties acknowledge that Mississippi's breach notification statute does not create a private right of action; enforcement is exclusively through the Attorney General.

(d) Escrow Agent shall cooperate in investigation and mitigation.

11. TRADE SECRET PROTECTIONS

11.1 Acknowledgment

The Deposit Materials may constitute trade secrets under the Mississippi Uniform Trade Secrets Act (Miss. Code Ann. §§ 75-26-1 to 75-26-19) and the federal DTSA (18 U.S.C. § 1836 et seq.).

11.2 Definition Under Mississippi Law

Under Miss. Code Ann. § 75-26-3, a "trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts reasonable under the circumstances to maintain its secrecy.

11.3 Reasonable Measures

Mark with legends; limit access; implement security; investigate unauthorized access; maintain records.

11.4 Injunctive Relief

Actual or threatened misappropriation may be enjoined per Miss. Code Ann. § 75-26-5. The court may order affirmative acts to protect trade secrets. Injunction terminates when trade secret ceases to exist but may continue to eliminate commercial advantage.

11.5 Damages

Actual damages and unjust enrichment per Miss. Code Ann. § 75-26-7. If willful and malicious, exemplary damages up to twice the awarded amount. Reasonable royalty may be imposed in lieu of actual damages.

11.6 Attorney's Fees

Court may award reasonable attorney's fees if willful and malicious misappropriation or bad faith claim, per Miss. Code Ann. § 75-26-9.

11.7 Statute of Limitations

Three (3) years from discovery or when it should have been discovered, per Miss. Code Ann. § 75-26-11.

11.8 Federal DTSA Notice

Per 18 U.S.C. § 1833(b), immunity for confidential disclosures to government officials or attorneys for reporting suspected violations, or in sealed court filings.

12. INTELLECTUAL PROPERTY

12.1 Ownership

Licensor retains all rights. No transfer. Post-release modifications owned by Beneficiary subject to Licensor's rights.

12.2 No Implied Licenses

Express grants only.

12.3 Third-Party IP

Licensor has necessary licenses and shall provide copies.

12.4 Open Source

Identified with applicable licenses; copyleft obligations disclosed.

13. WARRANTIES AND DISCLAIMERS

13.1 Licensor Warranties

Authority, no conflicts, completeness, no malicious code, valid IP, non-infringement, trade secret measures.

13.2 Beneficiary Warranties

Authority, permitted use, confidentiality.

13.3 Escrow Agent Warranties

Authority, reasonable care, maintained security.

13.4 Disclaimer

EXCEPT FOR EXPRESS WARRANTIES, MATERIALS ARE "AS IS" UPON RELEASE. ALL IMPLIED WARRANTIES DISCLAIMED INCLUDING MERCHANTABILITY, FITNESS, AND NON-INFRINGEMENT. ESCROW AGENT MAKES NO WARRANTY OF COMPLETENESS OR FUNCTIONALITY.

14. INDEMNIFICATION

14.1 By Licensor

IP infringement, warranty breaches, malicious code, failure to obtain third-party licenses.

14.2 By Beneficiary

Misuse, modifications, warranty breaches, confidentiality failures.

14.3 By Escrow Agent

Gross negligence, willful misconduct, material security breaches.

14.4 Procedures

Prompt notice, sole defense control, cooperation.

15. LIMITATION OF LIABILITY

15.1 Consequential Damages

EXCEPT FOR CONFIDENTIALITY, INDEMNIFICATION, TRADE SECRETS, AND WILLFUL MISCONDUCT, NO INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES.

15.2 Cap

Licensor/Beneficiary: greater of fees under this Agreement or the Underlying Agreement in preceding 12 months. Escrow Agent: fees paid in preceding 12 months.

15.3 Exceptions

Willful misconduct, fraud, gross negligence, trade secrets, IP infringement, unauthorized release.

15.4 Essential Basis

ESSENTIAL TO BARGAIN. APPLIES NOTWITHSTANDING FAILURE OF ESSENTIAL PURPOSE.

16. TERM AND TERMINATION

16.1 Term

[____] year(s) initial, auto-renewing for [____]-year terms, [____] days' notice to non-renew.

16.2 Coterminous

☐ If checked, coterminous with Underlying Agreement.

16.3 Termination for Cause

[____] days' notice of uncured breach. Automatic upon mutual agreement, Underlying Agreement termination (if coterminous), or Escrow Agent cessation.

16.4 Escrow Agent Resignation

[____] days' notice. Cooperate in transfer or return.

16.5 Effect

Return, transfer, or destroy. Post-release rights survive. Confidential Information returned or destroyed.

16.6 Survival

Sections 2, 8 (if release), 10, 11, 12, 13 (as applicable), 14, 15, 17, 19.

17. GOVERNING LAW AND DISPUTE RESOLUTION

17.1 Governing Law

Laws of the State of Mississippi, without conflict of laws principles. UN Convention does not apply.

17.2 Venue

Exclusive jurisdiction in state and federal courts in Hinds County (Jackson), Mississippi. Waiver of venue objections and inconvenient forum claims.

17.3 Jury Waiver

TO THE FULLEST EXTENT PERMITTED BY MISSISSIPPI LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING FROM THIS AGREEMENT. THIS IS A MATERIAL INDUCEMENT. EACH PARTY HAS HAD OPPORTUNITY TO CONSULT COUNSEL.

Initials: Licensor: [____] Beneficiary: [____] Escrow Agent: [____]

17.4 Arbitration (Optional)

☐ If checked, disputes not resolved through negotiation within [____] days submitted to binding arbitration by [AAA / JAMS] in [________________________________], Mississippi, applying Mississippi law. Award is final and enforceable.

17.5 Injunctive Relief

Any party may seek equitable relief to protect IP, trade secrets, or Confidential Information notwithstanding any arbitration provision.

17.6 Prevailing Party Fees

Prevailing party may recover reasonable attorney's fees, expert fees, and costs.

18. MISSISSIPPI-SPECIFIC PROVISIONS

18.1 Electronic Signatures

Per the Mississippi UETA (Miss. Code Ann. §§ 75-12-1 to 75-12-31) and the federal E-SIGN Act. Legally binding and enforceable.

18.2 Mississippi Consumer Protection Act

The parties acknowledge the Mississippi Consumer Protection Act (Miss. Code Ann. §§ 75-24-1 et seq.) prohibits unfair or deceptive trade practices. Nothing in this Agreement waives non-waivable rights. Enforcement is through the Mississippi Attorney General per Miss. Code Ann. § 75-24-9.

18.3 Interest Rate Compliance

(a) The legal rate is eight percent (8%) per annum (Miss. Code Ann. § 75-17-1).

(b) For contracts exceeding $2,000 in principal, parties may contract for any rate agreed in writing.

(c) Partnerships, joint ventures, and corporations may contract for up to fifteen percent (15%) per annum or five percent (5%) above the discount rate on contracts over $2,500.

(d) Usurious rates result in forfeiture of interest; if rates exceed the maximum by more than 100%, both principal and interest are forfeited (Miss. Code Ann. § 75-17-1(3)).

(e) All interest provisions comply with Mississippi law.

18.4 Statute of Limitations

(a) Contract actions (written and oral): three (3) years from breach (Miss. Code Ann. § 15-1-29).

(b) Trade secret misappropriation: three (3) years from discovery (Miss. Code Ann. § 75-26-11).

18.5 Breach Notification — No Private Right of Action

The parties acknowledge that Mississippi's data breach notification statute (Miss. Code Ann. § 75-24-29) does not create a private right of action. Enforcement is exclusively through the Mississippi Attorney General. Non-compliance constitutes an unfair trade practice under the Consumer Protection Act.

18.6 Mississippi UCC Applicability

To the extent applicable, specific terms of this Agreement control over conflicting UCC provisions (Miss. Code Ann. Title 75, Chapters 1-9).

18.7 Bankruptcy Protections

Beneficiary's rights protected under 11 U.S.C. § 365(n).

18.8 Forum Selection Enforceability

Mississippi courts enforce forum selection clauses in commercial contracts under Mississippi law when freely negotiated.

19. MISCELLANEOUS

19.1 Notices

Written, deemed given upon hand delivery, overnight courier receipt, email during business hours (next day if after), or third business day after certified mailing.

19.2 Entire Agreement

This Agreement, Schedules, and Underlying Agreement are the entire agreement.

19.3 Order of Precedence

This Agreement for escrow; Underlying Agreement for other matters.

19.4 Amendments

Written instrument signed by all three parties.

19.5 Assignment

No assignment without consent except in M&A with assumption. Void purported assignments.

19.6 Force Majeure

No liability with prompt notice, mitigation, and resumption.

19.7 Severability

Modify minimally or sever; remainder continues.

19.8 Waiver

No waiver by non-enforcement. Written waivers only.

19.9 Counterparts

Multiple counterparts. Electronic delivery effective.

19.10 Independent Contractors

No partnership, joint venture, agency, or employment.

19.11 No Third-Party Beneficiaries

Benefits only parties and permitted successors.

19.12 Construction

No presumption against drafter. Headings for reference.

20. SIGNATURES

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

LICENSOR:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

BENEFICIARY:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

ESCROW AGENT:

Signature: [________________________________]
Printed Name: [________________________________]
Title: [________________________________]
Date: [__/__/____]

21. SCHEDULES

SCHEDULE A — FEE SCHEDULE

Payment Terms: Net [____] days. Late Payment Rate: Per written agreement (Miss. Code Ann. § 75-17-1).

SCHEDULE B — DEPOSIT MATERIALS INVENTORY

Deposit Date: [__/__/____] Product: [________________________________] Version: [________________________________]

Certification: Completeness, accuracy, sufficiency, authority, no malicious code.

Signature: [________________________________] Date: [__/__/____]
Name: [________________________________] Title: [________________________________]

SCHEDULE C — VERIFICATION PROCEDURES

Level 1: ☐ File presence ☐ Sizes/hashes ☐ Integrity

Level 2: ☐ All Level 1 ☐ Build review ☐ Compilation ☐ Executable ☐ Third-party

Level 3: ☐ All Levels 1-2 ☐ Deployment ☐ Test suites ☐ Functionality ☐ Database ☐ APIs ☐ Deploy scripts

SCHEDULE D — RELEASE REQUEST AND OBJECTION FORMS

RELEASE REQUEST

Date: [__/__/____] To: [________________________________] From: [________________________________]

Agreement: [________________________________] Product: [________________________________]

☐ 6.1(a) Bankruptcy ☐ 6.1(b) Cessation ☐ 6.1(c) Breach ☐ 6.1(d) SaaS ☐ 6.1(e) Deposits ☐ 6.1(f) Escrow

Description: [________________________________]

Dates: [__/__/____] Notice: [__/__/____] Cure Expires: [__/__/____]

☐ Notices ☐ Evidence ☐ Proof ☐ Other: [________________________________]

I declare under penalty of perjury under Mississippi and federal law that the foregoing is true and correct.

Signature: [________________________________] Date: [__/__/____]
Name: [________________________________] Title: [________________________________]

OBJECTION NOTICE

Date: [__/__/____] From: [________________________________]

Grounds: [________________________________]

☐ Refuting evidence ☐ Cure proof ☐ Other: [________________________________]

Signature: [________________________________] Date: [__/__/____]

END OF AGREEMENT

Document Reference: MS-SCEA-[________________________________]
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