SOURCE CODE ESCROW AGREEMENT

New York Jurisdiction

TABLE OF CONTENTS

1. Parties and Purpose
2. Deposit Materials
3. Deposits and Updates
4. Verification and Testing
5. Release Conditions
6. Release Procedures
7. Post-Release License Rights
8. Fees and Payment
9. Confidentiality and Security
10. Trade Secret Protections
11. Warranties and Disclaimers
12. Indemnities
13. Limitation of Liability
14. Term and Termination
15. Governing Law and Dispute Resolution
16. New York-Specific Provisions
17. Miscellaneous
18. Schedules

1. PARTIES AND PURPOSE

• Licensor deposits source code and related materials for [PRODUCT] with Escrow Agent for the benefit of [BENEFICIARY] to ensure continuity upon defined trigger events.

2. DEPOSIT MATERIALS

• Source code, build scripts, configuration files, third-party dependencies (with licenses), documentation, and installation instructions.
• Include specific version/branch identifiers; machine-readable format requirements.

3. DEPOSITS AND UPDATES

• Initial deposit within [X] days of Effective Date; updates aligned to major/minor releases or at least [quarterly/biannually].
• Escrow Agent to confirm receipt and integrity; hash values recorded.

4. VERIFICATION AND TESTING

• Optional verification levels (inventory, compilation, full build) at Beneficiary's cost; Escrow Agent provides reports.
• Deficiencies cured by Licensor within [X] days.

5. RELEASE CONDITIONS

• Narrow triggers: (a) Licensor insolvency/bankruptcy with failure to continue support; (b) cessation of business for the Product; (c) material breach of maintenance/support with failure to cure [X] days; (d) failure to provide SaaS availability for [Y] consecutive days not due to force majeure.
• Exclusions: M&A or change of control alone is not a trigger.

6. RELEASE PROCEDURES

• Beneficiary submits sworn statement with evidence; Licensor notified and may object within [X] days; Escrow Agent follows objection/resolution process.
• Emergency interim access option for catastrophic outages (optional).

7. POST-RELEASE LICENSE RIGHTS

• Upon valid release, Beneficiary receives a non-exclusive, non-transferable license to use, maintain, and modify the Deposit Materials solely to support its licensed use of the Product; no right to commercialize or sublicense except to support vendors.
• Obligations to maintain confidentiality and comply with third-party licenses.

8. FEES AND PAYMENT

• Deposits, storage, verification, and release fees set in Schedule 1; paid by [Licensor/Beneficiary/split].

9. CONFIDENTIALITY AND SECURITY

• Escrow Agent confidentiality; secure storage requirements; restricted access; breach notification obligations.

10. TRADE SECRET PROTECTIONS

• Federal and State Protections: The Deposit Materials may constitute trade secrets under the federal Defend Trade Secrets Act (18 U.S.C. sections 1836 et seq.) and New York common law. All parties agree to maintain the confidentiality of the Deposit Materials and take reasonable measures to protect their trade secret status.
• Injunctive Relief: In the event of actual or threatened misappropriation of trade secrets, the aggrieved party shall be entitled to seek injunctive relief, including ex parte seizure under 18 U.S.C. section 1836(b)(2) where warranted, in addition to any other remedies available at law or in equity.
• Whistleblower Immunity Notice: Pursuant to 18 U.S.C. section 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret made in confidence to a government official or attorney solely for the purpose of reporting or investigating a suspected violation of law.
• Preservation of Secrecy: The Escrow Agent shall implement commercially reasonable security measures to preserve the trade secret status of the Deposit Materials.

11. WARRANTIES AND DISCLAIMERS

• Licensor warrants it has rights to deposit materials; no malware intentionally inserted.
• Otherwise, materials provided "as is" upon release; no additional warranties.

12. INDEMNITIES

• Licensor indemnifies for third-party IP claims arising from Deposit Materials (subject to master agreement limitations).
• Beneficiary indemnifies for misuse beyond licensed rights.
• Escrow Agent indemnity limited to gross negligence/willful misconduct.

13. LIMITATION OF LIABILITY

• Caps consistent with master agreement; Escrow Agent typically limited to fees paid to it; carve-outs for willful misconduct/gross negligence.

14. TERM AND TERMINATION

• Term coterminous with maintenance/support term unless ended earlier by mutual agreement; termination procedures and return/destruction of deposits.

15. GOVERNING LAW AND DISPUTE RESOLUTION

• Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Pursuant to N.Y. Gen. Oblig. Law section 5-1401, the parties agree that New York law shall govern this Agreement regardless of whether the transaction bears a reasonable relation to New York.
• Venue: The parties consent to exclusive jurisdiction and venue in the state and federal courts located in [New York County (Manhattan) / Kings County], New York. Pursuant to N.Y. Gen. Oblig. Law section 5-1402, the parties agree to submit to the jurisdiction of New York courts.
• Jury Waiver: EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE NEW YORK LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each party certifies that this waiver is made voluntarily, with full knowledge of the legal consequences.
• Injunctive Relief: Notwithstanding any dispute resolution provisions, any party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights or trade secrets without posting bond, to the extent permitted under New York law.

16. NEW YORK-SPECIFIC PROVISIONS

• Electronic Signatures: This Agreement may be executed electronically in accordance with the New York Electronic Signatures and Records Act (N.Y. State Tech. Law Article 3, sections 302-309). Electronic signatures shall have the same legal effect as original signatures.
• Choice of Law Validation: If the amounts involved in this Agreement equal or exceed $250,000, the choice of New York law is validated pursuant to N.Y. Gen. Oblig. Law section 5-1401.
• Commercial Reasonableness: The parties acknowledge that this Agreement represents a negotiated, arm's-length commercial transaction and that all terms are commercially reasonable under New York contract law.
• Bankruptcy Considerations: In the event of Licensor's bankruptcy, Beneficiary's rights under this Agreement shall be subject to 11 U.S.C. section 365(n) regarding intellectual property licenses.
• UCC Applicability: To the extent the Deposit Materials constitute goods or intangibles governed by the Uniform Commercial Code as adopted in New York, the parties agree that such provisions shall apply as modified by this Agreement.

17. MISCELLANEOUS

• Notices, assignment, force majeure, amendments, counterparts; order of precedence relative to master agreement.

18. SCHEDULES

• Schedule 1: Fee Schedule.
• Schedule 2: Deposit Materials Inventory.
• Schedule 3: Verification Levels and Procedures.
• Schedule 4: Release Request Form and Objection Procedure.