SOURCE CODE ESCROW AGREEMENT

State of New York

Governed by the Laws of the State of New York

Agreement Number: [________________________________]

Effective Date: [__/__/____]

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. New York-Specific Provisions
19. Miscellaneous
20. Signatures
21. Schedules

1. PARTIES AND RECITALS

THIS SOURCE CODE ESCROW AGREEMENT (this "Agreement") is entered into as of [__/__/____] (the "Effective Date") by and among:

LICENSOR:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
State of Organization: [________________________________]
Entity Type: ☐ Corporation ☐ LLC ☐ Partnership ☐ Sole Proprietor ☐ Other: [____]
Authorized Representative: [________________________________]
Title: [________________________________]
Email: [________________________________]
Phone: [________________________________]

BENEFICIARY:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
State of Organization: [________________________________]
Entity Type: ☐ Corporation ☐ LLC ☐ Partnership ☐ Sole Proprietor ☐ Other: [____]
Authorized Representative: [________________________________]
Title: [________________________________]
Email: [________________________________]
Phone: [________________________________]

ESCROW AGENT:
Name: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
State of Organization: [________________________________]
Authorized Representative: [________________________________]
Title: [________________________________]
Email: [________________________________]
Phone: [________________________________]

Each individually a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Licensor is the owner or authorized licensor of certain proprietary software known as [________________________________] (the "Software Product") and the associated source code, build environments, documentation, and related materials;

WHEREAS, Beneficiary has entered into or contemporaneously herewith enters into a software license agreement, software-as-a-service agreement, or other technology agreement dated [__/__/____] (the "Underlying Agreement") with Licensor pursuant to which Beneficiary has obtained the right to use the Software Product;

WHEREAS, Beneficiary desires to ensure continuity of access to, maintenance of, and support for the Software Product in the event of certain triggering events that would otherwise deprive Beneficiary of the benefits of the Underlying Agreement;

WHEREAS, Licensor agrees to deposit certain source code and related materials with Escrow Agent for the benefit of Beneficiary, subject to the terms and conditions set forth herein;

WHEREAS, Escrow Agent is in the business of providing technology escrow services and agrees to accept, hold, and release the deposited materials in accordance with the terms and conditions of this Agreement;

WHEREAS, the Parties intend this Agreement to be governed by and construed in accordance with the laws of the State of New York, and the Parties acknowledge that the total value of the transactions contemplated by this Agreement and the Underlying Agreement, taken together, equals or exceeds Two Hundred Fifty Thousand Dollars ($250,000), thereby validating the choice of New York law pursuant to N.Y. Gen. Oblig. Law § 5-1401; and

WHEREAS, the Parties acknowledge that the Deposit Materials (as defined below) may constitute trade secrets under New York common law and the federal Defend Trade Secrets Act (18 U.S.C. §§ 1836-1839), and that appropriate protections must be maintained to preserve the trade secret status of such materials.

NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms not defined in this Section shall have the meanings assigned to them elsewhere in this Agreement or in the Underlying Agreement.

2.1 "Affiliate" means, with respect to any Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where "control" means the ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest of such entity.

2.2 "Bankruptcy Event" means the filing by or against Licensor of a voluntary or involuntary petition for relief under Title 11 of the United States Code (the "Bankruptcy Code") or any state insolvency law, the appointment of a receiver or trustee for Licensor's assets, or the making by Licensor of a general assignment for the benefit of creditors.

2.3 "Build Environment" means the hardware specifications, operating system requirements, compiler versions, integrated development environment configurations, libraries, frameworks, and all other tools and configurations necessary to compile, build, and deploy the Software Product from the Source Code.

2.4 "Business Day" means any day other than a Saturday, Sunday, or any day on which banking institutions located in the State of New York are authorized or required by law or executive order to close.

2.5 "Confidential Information" means any and all non-public information disclosed by one Party to another in connection with this Agreement, including the Deposit Materials, financial information, business plans, technical data, trade secrets, know-how, inventions, processes, techniques, algorithms, software programs, customer lists, and any other information that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

2.6 "Deposit Materials" means the Source Code, Build Environment specifications, Documentation, Third-Party Components, and all other materials deposited by Licensor with Escrow Agent pursuant to this Agreement, as described in Section 3 and itemized in Schedule B.

2.7 "Documentation" means all technical documentation, user manuals, system administration guides, API documentation, database schemas, architecture diagrams, flowcharts, data dictionaries, installation procedures, deployment guides, and other written materials relating to the Software Product that are necessary or useful for understanding, compiling, deploying, maintaining, and modifying the Source Code.

2.8 "Effective Date" means the date first written above.

2.9 "Force Majeure Event" means any event beyond the reasonable control of a Party, including acts of God, fire, flood, earthquake, hurricane, tornado, epidemic, pandemic, war, terrorism, civil unrest, government action, labor strikes, power failures, internet outages, or similar events, but excluding a Party's financial difficulties or inability to perform due to market conditions.

2.10 "Initial Deposit" means the first deposit of Deposit Materials made by Licensor with Escrow Agent pursuant to Section 4.1.

2.11 "Intellectual Property Rights" means all worldwide intellectual property rights, including patents, patent applications, copyrights, copyright registrations, trademarks, trademark registrations, trade secrets, know-how, moral rights, database rights, mask work rights, and all other proprietary rights of a similar nature.

2.12 "Major Release" means any new version of the Software Product that is designated by Licensor with a new whole number version (e.g., version 2.0 from version 1.x) or that introduces substantial new features, functionality, or architectural changes.

2.13 "Minor Release" means any new version of the Software Product that is designated by Licensor with a new decimal version number (e.g., version 1.2 from version 1.1) and that introduces incremental improvements, bug fixes, or enhancements.

2.14 "Objection Notice" means a written notice from Licensor to Escrow Agent and Beneficiary disputing a Release Request, as described in Section 7.3.

2.15 "Release Conditions" means the conditions set forth in Section 6 under which Beneficiary becomes entitled to receive the Deposit Materials from Escrow Agent.

2.16 "Release Request" means a written request from Beneficiary to Escrow Agent seeking release of the Deposit Materials, as described in Section 7.1.

2.17 "SHIELD Act" means the Stop Hacks and Improve Electronic Data Security Act, codified at N.Y. Gen. Bus. Law § 899-aa, as amended from time to time, including the 2024 amendments establishing the thirty (30) day notification deadline.

2.18 "Source Code" means the human-readable programming code for the Software Product, including all modules, subroutines, scripts, comments, annotations, revision histories, and related programming materials, in a form from which object code can be generated or from which the Software Product can be compiled, interpreted, or otherwise made operational.

2.19 "Third-Party Components" means any software libraries, frameworks, modules, tools, or other components developed by parties other than Licensor that are incorporated into or required for the operation of the Software Product, together with all applicable licenses, permissions, and notices.

2.20 "Underlying Agreement" means the software license agreement, software-as-a-service agreement, or other technology agreement between Licensor and Beneficiary identified in the Recitals, as amended from time to time.

2.21 "Update Deposit" means any deposit of Deposit Materials made by Licensor with Escrow Agent after the Initial Deposit, as described in Section 4.2.

2.22 "Verification" means the process of examining, testing, and validating the Deposit Materials as described in Section 5.

3. DEPOSIT MATERIALS

3.1 Scope of Deposit Materials. Licensor shall deposit with Escrow Agent the following materials, collectively constituting the Deposit Materials:

(a) The complete Source Code for the Software Product, including all modules, libraries, scripts, and programming files necessary to compile, build, and operate the Software Product in its current production version and the two (2) immediately preceding production versions;

(b) All Build Environment specifications, including but not limited to: (i) hardware requirements and specifications; (ii) operating system requirements and version numbers; (iii) compiler and interpreter requirements and version numbers; (iv) all required libraries, frameworks, and dependencies with version numbers; (v) integrated development environment configurations; (vi) build scripts, makefiles, and automated build tools; and (vii) deployment scripts and configuration files;

(c) Complete Documentation as defined in Section 2.7;

(d) All Third-Party Components incorporated into or required for the operation of the Software Product, together with copies of all applicable licenses and permissions, or where Third-Party Component licenses prohibit deposit, a complete list identifying each such component, its version, its license type, and instructions for obtaining such component;

(e) Database schemas, data models, entity-relationship diagrams, stored procedures, and any scripts necessary to create, populate, or migrate the database structures used by the Software Product;

(f) All configuration files, environment variables, and parameter settings necessary to deploy the Software Product in a production environment, with appropriate placeholders for environment-specific values;

(g) A complete and current inventory of all files included in the deposit, including file names, file sizes, hash values (SHA-256 or equivalent), directory structures, and a description of each file's purpose; and

(h) Such additional materials as may be identified in Schedule B or as may be reasonably requested by Beneficiary from time to time and agreed to by Licensor.

3.2 Format Requirements. All Deposit Materials shall be provided in industry-standard, machine-readable formats on media that are commonly available and readily accessible. Licensor shall provide Deposit Materials in at least two (2) of the following formats: (a) secure electronic transmission to Escrow Agent's designated repository; (b) encrypted removable media (USB drive, external hard drive); or (c) access to a secure, dedicated code repository. All files shall be organized in a logical directory structure with a top-level README file describing the organization and contents.

3.3 Completeness Obligation. Licensor represents and warrants that the Deposit Materials shall be sufficiently complete to enable a reasonably skilled software developer or team of software developers, using the Documentation and Build Environment specifications included in the Deposit Materials, to compile, build, deploy, operate, maintain, and modify the Software Product without reference to any materials not included in the Deposit Materials, except for Third-Party Components identified in Section 3.1(d) that may not be deposited due to licensing restrictions.

4. DEPOSIT AND UPDATE PROCEDURES

4.1 Initial Deposit. Licensor shall deliver the Initial Deposit to Escrow Agent within [____] calendar days after the Effective Date. The Initial Deposit shall include all Deposit Materials described in Section 3 that correspond to the then-current production version of the Software Product.

4.2 Update Deposits. Licensor shall deliver Update Deposits to Escrow Agent:

(a) Within [____] calendar days following each Major Release of the Software Product;

(b) Within [____] calendar days following each Minor Release of the Software Product;

(c) No less frequently than once every [____] calendar months, regardless of whether any Major Release or Minor Release has occurred during such period; and

(d) Within [____] calendar days following any material change to the Build Environment, Third-Party Components, or database schemas that would affect the ability to compile, build, or deploy the Software Product from the deposited Source Code.

4.3 Deposit Confirmation. Upon receipt of each deposit (whether Initial Deposit or Update Deposit), Escrow Agent shall:

(a) Acknowledge receipt in writing to both Licensor and Beneficiary within five (5) Business Days;

(b) Verify the physical integrity of the deposit media and the readability of the deposited files;

(c) Record and maintain a log of all deposited materials, including date of receipt, file inventory, hash values, and deposit media type;

(d) Assign a unique deposit identification number to each deposit; and

(e) Store the Deposit Materials in accordance with the security requirements set forth in Section 10.

4.4 Rejected Deposits. If Escrow Agent determines that a deposit is unreadable, corrupted, or incomplete based on the accompanying inventory, Escrow Agent shall notify Licensor and Beneficiary within five (5) Business Days, and Licensor shall submit a replacement deposit within ten (10) Business Days of receiving such notice.

4.5 Supplemental Deposits. Beneficiary may, upon reasonable written notice to Licensor, request that Licensor deposit additional materials that Beneficiary reasonably determines are necessary for the completeness of the Deposit Materials. Licensor shall comply with such request within thirty (30) calendar days, provided that such materials exist and are within Licensor's possession or control. If Licensor objects to such request, the Parties shall attempt to resolve the dispute in good faith within fifteen (15) Business Days.

5. VERIFICATION AND TESTING

5.1 Verification Levels. Beneficiary may request that Escrow Agent perform Verification of the Deposit Materials at one or more of the following levels:

Tier 1 — Inventory Verification:
(a) Confirmation that the number and names of deposited files match the accompanying inventory;
(b) Verification of file integrity through hash value comparison;
(c) Confirmation that all file formats are readable and not corrupted;
(d) Review of directory structure for logical organization; and
(e) Confirmation that a README or equivalent index file is present and readable.

Tier 2 — Technical Review and Compilation Verification:
(a) All Tier 1 verifications;
(b) Confirmation that the Source Code can be compiled or interpreted using the tools and environment specified in the Build Environment documentation;
(c) Verification that all referenced libraries, dependencies, and Third-Party Components are present or properly identified;
(d) Review of Documentation for completeness and consistency with the deposited Source Code;
(e) Identification of any missing files, broken references, or dependency gaps; and
(f) Confirmation that database schemas can be created using the provided scripts.

Tier 3 — Full Build and Functional Verification:
(a) All Tier 1 and Tier 2 verifications;
(b) Complete build of the Software Product from the deposited Source Code in a clean environment;
(c) Execution of available automated test suites;
(d) Verification that the built software product functions substantially in accordance with the Documentation;
(e) Deployment testing in a representative environment;
(f) Performance baseline comparison where applicable; and
(g) Preparation of a detailed verification report documenting all findings, including any deficiencies, warnings, or recommendations.

5.2 Verification Requests. Beneficiary may request Verification at any time by submitting a written request to Escrow Agent specifying the desired verification level. Beneficiary may request Verification no more than [____] times per calendar year at each level, unless additional verifications are necessitated by deficiencies identified in a prior verification. Escrow Agent shall commence the requested Verification within fifteen (15) Business Days of receiving the request and applicable fees.

5.3 Verification Reports. Upon completion of any Verification, Escrow Agent shall prepare a written verification report and deliver copies to both Licensor and Beneficiary within ten (10) Business Days of completion. The verification report shall detail the scope of the Verification performed, the results, any deficiencies identified, and recommendations for remediation.

5.4 Deficiency Remediation. If any Verification reveals deficiencies in the Deposit Materials, Licensor shall cure such deficiencies by submitting corrected or supplemental Deposit Materials within [____] calendar days of receiving the verification report. Escrow Agent shall perform a follow-up verification (at the same tier) to confirm that the deficiencies have been cured, at no additional cost to Beneficiary for the first follow-up verification per deficiency report.

5.5 Verification Costs. The costs of Verification shall be borne as follows: ☐ Beneficiary shall pay all Verification costs; ☐ Licensor shall pay all Verification costs; ☐ Verification costs shall be shared equally between Licensor and Beneficiary; ☐ As set forth in Schedule A. Notwithstanding the foregoing, if a Verification reveals material deficiencies in the Deposit Materials, Licensor shall reimburse Beneficiary for the cost of such Verification and any follow-up Verification required to confirm remediation.

5.6 Escrow Agent Qualifications. Escrow Agent represents that it employs or contracts with qualified technical personnel capable of performing the Verification procedures described in this Section 5 and that such personnel shall maintain appropriate confidentiality obligations consistent with the requirements of this Agreement.

6. RELEASE CONDITIONS

6.1 Release Events. Beneficiary shall be entitled to receive the Deposit Materials from Escrow Agent upon the occurrence of any of the following events (each, a "Release Condition"):

(a) Bankruptcy Event. The occurrence of a Bankruptcy Event with respect to Licensor, provided that Licensor or its successor has failed to continue to perform its obligations under the Underlying Agreement for a period of [____] consecutive Business Days following the Bankruptcy Event. Beneficiary's rights under this provision shall be subject to and consistent with the protections afforded to licensees of intellectual property under 11 U.S.C. § 365(n) of the Bankruptcy Code;

(b) Cessation of Business. Licensor ceases to conduct business operations generally, or ceases to conduct business operations specifically with respect to the Software Product, including discontinuing development, maintenance, or support of the Software Product, and fails to designate a qualified successor to assume its obligations under the Underlying Agreement within [____] calendar days of such cessation;

(c) Material Breach of Maintenance and Support. Licensor commits a material breach of its maintenance, support, or update obligations under the Underlying Agreement, and such breach remains uncured for a period of [____] calendar days after Beneficiary delivers written notice thereof to Licensor specifying the nature of the breach in reasonable detail;

(d) Extended Service Unavailability. In the case of software-as-a-service or cloud-based deployments, the Software Product is unavailable or substantially non-functional for a period of [____] consecutive calendar days or [____] cumulative calendar days within any [____]-month period, and such unavailability is not caused by a Force Majeure Event or by Beneficiary's systems, networks, or actions;

(e) Failure to Deposit or Update. Licensor fails to make the Initial Deposit within the time specified in Section 4.1, or fails to make an Update Deposit within the time specified in Section 4.2, and such failure continues for [____] calendar days after Beneficiary delivers written notice thereof to Licensor;

(f) Assignment Without Consent. Licensor assigns or transfers the Underlying Agreement, the Software Product, or substantially all of its assets to a third party without Beneficiary's prior written consent as required by the Underlying Agreement, and the assignee or transferee fails or refuses to assume Licensor's obligations under this Agreement and the Underlying Agreement;

(g) Dissolution or Liquidation. Licensor files articles of dissolution or a certificate of cancellation with its state of organization, or a court of competent jurisdiction enters a decree ordering the dissolution or liquidation of Licensor;

(h) Regulatory Action. A governmental or regulatory authority issues an order, injunction, or directive that prohibits Licensor from continuing to provide the Software Product or perform its obligations under the Underlying Agreement, and such order, injunction, or directive remains in effect for [____] consecutive calendar days;

(i) Failure to Cure Verification Deficiencies. Licensor fails to cure material deficiencies identified in a Verification report within the time period specified in Section 5.4, and such failure materially impairs the usefulness of the Deposit Materials; and

(j) Additional Triggers. Such other events as may be specified in Schedule D or agreed to in writing by all three Parties.

6.2 Exclusions from Release Conditions. The following events, standing alone, shall not constitute Release Conditions:

(a) A merger, acquisition, or change of control of Licensor, provided that the surviving or acquiring entity assumes and continues to perform Licensor's obligations under this Agreement and the Underlying Agreement;

(b) A change in the ownership structure of Licensor that does not affect its ability to perform under this Agreement or the Underlying Agreement;

(c) Temporary service disruptions that do not meet the thresholds specified in Section 6.1(d); and

(d) Disputes between the Parties that do not involve a material breach of the Underlying Agreement.

6.3 Bankruptcy Protections. The Parties acknowledge and agree that this Agreement is intended to provide Beneficiary with the protections afforded under 11 U.S.C. § 365(n) of the Bankruptcy Code with respect to intellectual property licenses. In the event of a Bankruptcy Event, Beneficiary may elect to retain its rights under this Agreement as provided in 11 U.S.C. § 365(n)(1)(B), including the right to the Deposit Materials as supplementary to the intellectual property license granted under the Underlying Agreement. Licensor agrees not to interfere with Beneficiary's exercise of these rights.

7. RELEASE PROCEDURES

7.1 Release Request. To initiate a release of the Deposit Materials, Beneficiary shall submit a written Release Request to Escrow Agent, with a simultaneous copy to Licensor, using the form set forth in Schedule D or a substantially similar form. The Release Request shall include:

(a) Identification of the specific Release Condition(s) that Beneficiary asserts have occurred;

(b) A detailed factual description of the events or circumstances constituting the Release Condition(s), supported by documentary evidence to the extent reasonably available;

(c) A sworn statement or affirmation by an authorized officer of Beneficiary that the facts stated in the Release Request are true and correct to the best of such officer's knowledge; and

(d) A statement that Beneficiary has provided or is concurrently providing a copy of the Release Request to Licensor.

7.2 Notice to Licensor. Escrow Agent shall transmit a copy of the Release Request to Licensor within two (2) Business Days of receipt, by the notice methods specified in Section 19.1, together with a notice of Licensor's right to object.

7.3 Licensor Objection. Licensor may object to the Release Request by delivering a written Objection Notice to Escrow Agent and Beneficiary within [____] Business Days of Licensor's receipt of the Release Request. The Objection Notice shall include:

(a) A detailed explanation of the grounds for the objection;

(b) Documentary evidence supporting the objection, to the extent reasonably available; and

(c) A sworn statement or affirmation by an authorized officer of Licensor that the facts stated in the Objection Notice are true and correct to the best of such officer's knowledge.

7.4 Release Without Objection. If Escrow Agent does not receive a valid Objection Notice from Licensor within the objection period specified in Section 7.3, Escrow Agent shall release the Deposit Materials to Beneficiary within five (5) Business Days after the expiration of such objection period.

7.5 Dispute Resolution for Contested Release. If Licensor delivers a valid Objection Notice within the objection period:

(a) Escrow Agent shall not release the Deposit Materials pending resolution of the dispute;

(b) The Parties shall attempt to resolve the dispute through good faith negotiation within fifteen (15) Business Days;

(c) If negotiation fails, either Party may submit the dispute to expedited arbitration in accordance with the dispute resolution provisions of Section 17.5; and

(d) Escrow Agent shall comply with the final determination of the arbitrator or court of competent jurisdiction regarding whether the Release Conditions have been satisfied.

7.6 Emergency Interim Access. In the event of a catastrophic service outage (defined as complete unavailability of the Software Product for [____] or more consecutive Business Days), Beneficiary may request emergency interim access to the Deposit Materials by submitting a written request to Escrow Agent, certifying under oath the nature and duration of the outage. Upon receipt of such request, Escrow Agent shall provide Beneficiary with read-only access to the Deposit Materials within twenty-four (24) hours, pending full resolution of the Release Request process. Such interim access shall be subject to the confidentiality and security provisions of this Agreement, and Beneficiary shall not copy, distribute, or use the Deposit Materials beyond what is strictly necessary to restore essential functionality of the Software Product.

7.7 Partial Release. In its discretion, and upon agreement of Licensor and Beneficiary, Escrow Agent may release a subset of the Deposit Materials (such as specific modules, patches, or documentation) where a Release Condition applies only to a specific component of the Software Product.

8. POST-RELEASE LICENSE RIGHTS

8.1 License Grant Upon Release. Upon a valid release of the Deposit Materials in accordance with Section 7, Beneficiary shall automatically receive a non-exclusive, non-transferable (except as provided in Section 8.3), irrevocable, perpetual (subject to Section 8.5), royalty-free license to use, copy, compile, modify, maintain, and create derivative works of the Deposit Materials solely for the following purposes:

(a) To continue to use, operate, and maintain the Software Product in a manner consistent with the rights granted under the Underlying Agreement;

(b) To fix bugs, errors, and security vulnerabilities in the Software Product;

(c) To make modifications, enhancements, and updates to the Software Product as necessary to maintain its functionality and compatibility with Beneficiary's systems and operating environment;

(d) To compile and build the Software Product from the Source Code; and

(e) To create backup and archival copies of the Software Product and the Deposit Materials as reasonably necessary.

8.2 Restrictions. Following release, Beneficiary shall NOT:

(a) Use the Deposit Materials for any purpose other than those expressly permitted in Section 8.1;

(b) Distribute, sublicense, sell, lease, rent, or otherwise make available the Source Code or Deposit Materials to any third party, except as provided in Section 8.3;

(c) Use the Deposit Materials to create a competing product or service;

(d) Remove, alter, or obscure any copyright notices, trade secret legends, or other proprietary markings on the Deposit Materials; or

(e) Reverse engineer, decompile, or disassemble any object code components of the Software Product for the purpose of deriving the source code of any other product.

8.3 Permitted Third-Party Access. Beneficiary may grant access to the Deposit Materials to: (a) its employees and Affiliates on a need-to-know basis; (b) third-party contractors engaged by Beneficiary to perform maintenance, support, or development services with respect to the Software Product, provided that each such contractor has executed a written confidentiality agreement with terms no less restrictive than those set forth in Section 10; and (c) Beneficiary's legal, financial, and technical advisors in connection with the enforcement of Beneficiary's rights under this Agreement. Beneficiary shall remain responsible for any breach of this Agreement by any person to whom Beneficiary grants access under this Section.

8.4 Third-Party Component Licenses. Beneficiary acknowledges that certain Third-Party Components within the Deposit Materials may be subject to separate license agreements. Beneficiary shall comply with all applicable Third-Party Component license terms and shall independently obtain any required licenses for Third-Party Components that could not be deposited due to licensing restrictions.

8.5 Duration of Post-Release License. The license granted under Section 8.1 shall continue in perpetuity unless: (a) a court of competent jurisdiction or arbitrator determines that the release was improper, in which case Beneficiary shall return all Deposit Materials within fifteen (15) Business Days of such determination; or (b) Beneficiary materially breaches its obligations under this Section 8, and such breach remains uncured for thirty (30) calendar days after written notice from Licensor.

9. FEES AND PAYMENT

9.1 Fee Schedule. The fees for services under this Agreement shall be as set forth in Schedule A (the "Fee Schedule"). Fees may include, without limitation:

(a) Initial setup and account establishment fees;
(b) Annual escrow maintenance and storage fees;
(c) Deposit processing fees for the Initial Deposit and each Update Deposit;
(d) Verification fees for each level of Verification performed;
(e) Release processing and delivery fees;
(f) Emergency interim access fees; and
(g) Fees for any additional services requested by any Party.

9.2 Fee Responsibility. Unless otherwise specified in Schedule A, fees shall be allocated as follows: ☐ All fees paid by Beneficiary; ☐ All fees paid by Licensor; ☐ Fees split equally between Licensor and Beneficiary; ☐ Fees allocated as specified in Schedule A.

9.3 Payment Terms. All fees shall be due and payable within [____] calendar days of the date of Escrow Agent's invoice. Invoices shall be sent to the billing contact designated by the responsible Party. All payments shall be made in United States dollars by check, wire transfer, or automated clearing house (ACH) transfer to the account designated by Escrow Agent.

9.4 Late Payment. Any amount not paid when due shall bear interest at the lesser of: (a) one and one-half percent (1.5%) per month (eighteen percent (18%) per annum); or (b) the maximum rate permitted under New York law, which is sixteen percent (16%) per annum as set forth in N.Y. Banking Law § 14-a and N.Y. Gen. Oblig. Law § 5-501. The Parties acknowledge that charging interest in excess of the civil usury limit of sixteen percent (16%) per annum is void and unenforceable under New York law, and that charging interest in excess of twenty-five percent (25%) per annum constitutes criminal usury under N.Y. Penal Law § 190.40. In the event that the interest rate specified herein is determined to exceed the maximum rate permitted under applicable law, such rate shall automatically be reduced to the maximum rate permitted.

9.5 Fee Adjustments. Escrow Agent may adjust its fees no more than once per twelve (12)-month period, upon at least sixty (60) calendar days' prior written notice to Licensor and Beneficiary. Any fee increase shall not exceed the greater of: (a) five percent (5%) of the then-current fee; or (b) the increase in the Consumer Price Index (CPI-U) for the New York-Newark-Jersey City metropolitan area for the preceding twelve (12)-month period.

9.6 Taxes. All fees are exclusive of applicable taxes. The Party responsible for payment shall also be responsible for any sales, use, excise, value-added, or similar taxes imposed on the services provided under this Agreement, excluding taxes based on Escrow Agent's income.

10. CONFIDENTIALITY AND SECURITY

10.1 Confidentiality Obligations. Each Party receiving Confidential Information (the "Receiving Party") from another Party (the "Disclosing Party") shall: (a) hold the Confidential Information in strict confidence; (b) not disclose the Confidential Information to any third party except as expressly permitted by this Agreement; (c) use the Confidential Information only for the purposes contemplated by this Agreement; and (d) protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care.

10.2 Escrow Agent Security Obligations. Escrow Agent shall implement and maintain the following minimum security measures for the storage and protection of the Deposit Materials:

(a) Physical Security. Deposit Materials shall be stored in a secure, access-controlled facility with commercially reasonable physical security measures, including locked storage, surveillance monitoring, and restricted access limited to authorized personnel;

(b) Electronic Security. All electronic copies of Deposit Materials shall be encrypted using AES-256 or equivalent encryption at rest and in transit. Access to electronic Deposit Materials shall require multi-factor authentication;

(c) Access Controls. Escrow Agent shall maintain a log of all personnel who access the Deposit Materials, including the date, time, duration, and purpose of each access. Access shall be limited to Escrow Agent personnel with a documented business need;

(d) Backup and Redundancy. Escrow Agent shall maintain at least one (1) geographically separate backup copy of all Deposit Materials, with the backup facility meeting the same security standards as the primary facility;

(e) Disaster Recovery. Escrow Agent shall maintain a disaster recovery plan that ensures the ability to provide the Deposit Materials within [____] Business Days of a disaster affecting the primary storage facility; and

(f) Security Audits. Escrow Agent shall conduct or commission annual security audits of its storage facilities and systems, and shall provide a summary of audit results to Licensor and Beneficiary upon request.

10.3 Data Breach Notification — SHIELD Act Compliance. In the event of a breach of the security of the system (as defined in N.Y. Gen. Bus. Law § 899-aa(1)(c)) affecting any Deposit Materials or personal information maintained in connection with this Agreement, Escrow Agent shall:

(a) Notify Licensor and Beneficiary of the breach in the most expedient time possible and without unreasonable delay, but in no event later than thirty (30) calendar days from the date the breach is discovered, as required by N.Y. Gen. Bus. Law § 899-aa as amended;

(b) Notify the New York Attorney General, the New York Department of State Division of Consumer Protection, and the New York State Police as required by N.Y. Gen. Bus. Law § 899-aa(8);

(c) Notify the New York Department of Financial Services as required by the 2024 amendments to the SHIELD Act;

(d) Provide a detailed written report to Licensor and Beneficiary describing the nature and scope of the breach, the types of information affected, the measures taken to contain and remediate the breach, and the steps being taken to prevent future breaches;

(e) Cooperate fully with Licensor and Beneficiary in investigating the breach and mitigating its effects; and

(f) Implement reasonable safeguards to protect the security, confidentiality, and integrity of the Deposit Materials, as required by N.Y. Gen. Bus. Law § 899-bb.

10.4 Exceptions to Confidentiality. The confidentiality obligations of this Section 10 shall not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully in the Receiving Party's possession prior to disclosure; (c) is independently developed by the Receiving Party without use of or reference to the Confidential Information; (d) is rightfully obtained from a third party without restriction on disclosure; or (e) is required to be disclosed by law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice and cooperates in seeking a protective order.

10.5 Return or Destruction. Upon termination of this Agreement or upon the Disclosing Party's written request, the Receiving Party shall promptly return or destroy all Confidential Information in its possession, except as otherwise provided in this Agreement or as required to comply with applicable law or professional standards. Escrow Agent's return or destruction obligations with respect to Deposit Materials upon termination are governed by Section 16.

11. TRADE SECRET PROTECTIONS

11.1 Acknowledgment of Trade Secret Status. The Parties acknowledge and agree that the Deposit Materials may constitute trade secrets under New York common law and the federal Defend Trade Secrets Act (18 U.S.C. §§ 1836-1839). New York does not follow the Uniform Trade Secrets Act and instead applies common law principles for trade secret protection. Under New York common law, as articulated in Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 624 N.E.2d 1007 (1993), a trade secret is defined as "any formula, pattern, device or compilation of information which is used in one's business, and which gives [the holder] an opportunity to obtain an advantage over competitors who do not know or use it." The determination of trade secret status involves a multi-factor analysis considering: (i) the extent to which the information is known outside of the business; (ii) the extent to which it is known by employees and others involved in the business; (iii) the extent of measures taken to guard the secrecy of the information; (iv) the value of the information to the business and its competitors; (v) the amount of effort or money expended in developing the information; and (vi) the ease or difficulty with which the information could be properly acquired or duplicated by others.

11.2 Reasonable Measures to Protect Secrecy. Each Party shall implement and maintain reasonable measures to protect the trade secret status of the Deposit Materials, including:

(a) Limiting access to the Deposit Materials to individuals who have a legitimate need to access such materials in connection with this Agreement;

(b) Requiring all individuals who access the Deposit Materials to acknowledge in writing the confidential and trade secret nature of the materials;

(c) Maintaining physical and electronic security measures consistent with industry standards for the protection of source code and trade secrets;

(d) Marking all Deposit Materials with appropriate trade secret and confidentiality legends; and

(e) Promptly notifying Licensor of any actual or suspected unauthorized disclosure or use of the Deposit Materials.

11.3 Federal Trade Secret Protections — DTSA. In addition to New York common law protections, the Deposit Materials may be protected under the Defend Trade Secrets Act (18 U.S.C. §§ 1836-1839). In the event of actual or threatened misappropriation, the aggrieved Party shall be entitled to seek the following federal remedies:

(a) Injunctive relief to prevent actual or threatened misappropriation pursuant to 18 U.S.C. § 1836(b)(3);

(b) Ex parte seizure of property in extraordinary circumstances pursuant to 18 U.S.C. § 1836(b)(2), where other forms of relief would be inadequate;

(c) Damages for actual loss, unjust enrichment, and, in cases of willful and malicious misappropriation, exemplary damages up to two times the amount of damages awarded; and

(d) Reasonable attorneys' fees in cases of willful and malicious misappropriation or bad faith claims.

11.4 Injunctive Relief Under New York Law. The Parties acknowledge that any unauthorized disclosure, use, or misappropriation of the Deposit Materials would cause irreparable harm to Licensor for which monetary damages would be inadequate. Accordingly, in the event of any actual or threatened breach of the trade secret protections set forth in this Agreement, Licensor shall be entitled to seek injunctive relief, including temporary restraining orders, preliminary injunctions, and permanent injunctions, in any court of competent jurisdiction in the State of New York, without the necessity of proving actual damages and without the requirement of posting a bond, to the extent permitted under New York law.

11.5 Whistleblower Immunity Notice. Pursuant to 18 U.S.C. § 1833(b), the Parties are hereby notified that: (a) 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 that is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; and (b) an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

11.6 Statute of Limitations. Under New York common law, the statute of limitations for a trade secret misappropriation claim is three (3) years from the date of the misappropriation. The Parties acknowledge this limitation period and agree that it shall not be shortened by contract.

11.7 No Inevitable Disclosure Doctrine. The Parties acknowledge that New York courts have generally declined to apply the "inevitable disclosure" doctrine, which permits an employer to enjoin a former employee from working for a competitor based solely on the theory that the employee will inevitably disclose trade secrets. Nothing in this Agreement shall be construed to create or support a claim based on the inevitable disclosure doctrine.

12. INTELLECTUAL PROPERTY

12.1 Ownership. Licensor retains all right, title, and interest in and to the Deposit Materials, including all Intellectual Property Rights therein, subject to the license granted to Beneficiary under Section 8 upon a valid release. Nothing in this Agreement shall be construed as an assignment or transfer of any Intellectual Property Rights from Licensor to Beneficiary or Escrow Agent.

12.2 Escrow Agent's Role. Escrow Agent acquires no right, title, or interest in or to the Deposit Materials by virtue of this Agreement. Escrow Agent's possession and storage of the Deposit Materials is solely in its capacity as a custodian and fiduciary for the benefit of the Parties.

12.3 No Implied Licenses. Except as expressly set forth in this Agreement, no license or other right to any Intellectual Property Rights is granted or implied under this Agreement to any Party.

12.4 Moral Rights. To the extent that any Deposit Materials are subject to moral rights under applicable law, Licensor hereby waives and agrees not to assert any such moral rights against Beneficiary in connection with Beneficiary's exercise of the license granted under Section 8, to the fullest extent permitted by applicable law.

13. WARRANTIES AND DISCLAIMERS

13.1 Licensor Warranties. Licensor represents and warrants to Beneficiary and Escrow Agent that:

(a) Licensor has the full right, power, and authority to deposit the Deposit Materials with Escrow Agent and to grant the rights set forth in this Agreement;

(b) The Deposit Materials do not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party, to Licensor's knowledge after reasonable investigation;

(c) Licensor has not intentionally included any malware, viruses, trojan horses, back doors, time bombs, disabling devices, or other harmful code in the Deposit Materials;

(d) The Deposit Materials, when deposited, will correspond to the then-current production version of the Software Product and will be sufficiently complete to satisfy the requirements of Section 3.3;

(e) Licensor has the authority to enter into this Agreement, and the execution and performance of this Agreement does not conflict with any other agreement to which Licensor is a party; and

(f) All information provided by Licensor in connection with this Agreement is true, accurate, and complete in all material respects.

13.2 Beneficiary Warranties. Beneficiary represents and warrants that:

(a) Beneficiary has the authority to enter into this Agreement; and

(b) Beneficiary shall use the Deposit Materials, if released, solely in accordance with the terms of this Agreement and the Underlying Agreement.

13.3 Escrow Agent Warranties. Escrow Agent represents and warrants that:

(a) Escrow Agent has the authority and capability to perform the escrow services described in this Agreement;

(b) Escrow Agent shall perform its obligations under this Agreement in a professional and workmanlike manner, consistent with industry standards for technology escrow services; and

(c) Escrow Agent shall comply with all applicable laws and regulations in the performance of its obligations, including the SHIELD Act.

13.4 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DEPOSIT MATERIALS ARE PROVIDED "AS IS" UPON RELEASE, AND LICENSOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE DEPOSIT MATERIALS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. ESCROW AGENT MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR FUNCTIONALITY OF THE DEPOSIT MATERIALS.

14. INDEMNIFICATION

14.1 Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Beneficiary and Escrow Agent and their respective directors, officers, employees, agents, and Affiliates (collectively, "Beneficiary Indemnitees" and "Escrow Agent Indemnitees," respectively) from and against any and all claims, demands, actions, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising out of or relating to:

(a) Any breach of Licensor's representations, warranties, or obligations under this Agreement;

(b) Any claim that the Deposit Materials infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party;

(c) Any malware, virus, or harmful code intentionally or negligently included in the Deposit Materials by Licensor; and

(d) Any breach of confidentiality or misuse of the Deposit Materials by Licensor or its personnel.

14.2 Beneficiary Indemnification. Beneficiary shall indemnify, defend, and hold harmless Licensor and Escrow Agent and their respective directors, officers, employees, agents, and Affiliates from and against any and all Losses arising out of or relating to:

(a) Any breach of Beneficiary's representations, warranties, or obligations under this Agreement;

(b) Beneficiary's use of the Deposit Materials beyond the scope of the license granted in Section 8;

(c) Any modifications or derivative works created by Beneficiary from the Deposit Materials, to the extent such Losses are attributable to Beneficiary's modifications rather than the original Deposit Materials; and

(d) Any breach of confidentiality or misuse of the Deposit Materials by Beneficiary or its personnel.

14.3 Escrow Agent Indemnification. Escrow Agent shall indemnify, defend, and hold harmless Licensor and Beneficiary and their respective directors, officers, employees, agents, and Affiliates from and against any and all Losses arising out of or relating to Escrow Agent's gross negligence or willful misconduct in the performance of its obligations under this Agreement.

14.4 Indemnification Procedures. The indemnified Party shall: (a) provide prompt written notice of any claim for which indemnification is sought; (b) grant the indemnifying Party sole control of the defense and settlement of such claim; and (c) provide reasonable cooperation and assistance to the indemnifying Party in the defense of such claim, at the indemnifying Party's expense. The indemnifying Party shall not settle any claim without the indemnified Party's prior written consent, which shall not be unreasonably withheld, if such settlement would impose any obligation or liability on the indemnified Party.

15. LIMITATION OF LIABILITY

15.1 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY NEW YORK LAW, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.2 Aggregate Cap on Liability. The aggregate liability of each Party under this Agreement shall not exceed the following:

(a) Escrow Agent: Escrow Agent's total aggregate liability shall not exceed the total fees actually paid to Escrow Agent under this Agreement during the twelve (12)-month period immediately preceding the event giving rise to the claim;

(b) Licensor and Beneficiary: The total aggregate liability of Licensor and Beneficiary, respectively, shall not exceed the greater of: (i) the total fees paid or payable under the Underlying Agreement during the twelve (12)-month period immediately preceding the event giving rise to the claim; or (ii) [________________________________] dollars ($[____]).

15.3 Carve-Outs. The limitations and exclusions set forth in Sections 15.1 and 15.2 shall NOT apply to:

(a) A Party's indemnification obligations under Section 14;

(b) Liability arising from a Party's gross negligence or willful misconduct;

(c) Liability arising from a breach of the confidentiality or trade secret provisions of Sections 10 and 11;

(d) Liability arising from Beneficiary's use of the Deposit Materials beyond the scope of the license granted in Section 8;

(e) Liability arising from Licensor's breach of the intellectual property warranties in Section 13.1(b); and

(f) Liability for personal injury or death caused by a Party's negligence.

16. TERM AND TERMINATION

16.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until the earliest of: (a) the termination or expiration of the Underlying Agreement, unless the Parties agree in writing to continue this Agreement beyond such date; (b) termination by mutual written agreement of all three Parties; or (c) termination by any Party in accordance with this Section 16 (the "Term").

16.2 Termination for Cause. Any Party may terminate this Agreement upon written notice to the other Parties if:

(a) Another Party commits a material breach of this Agreement and fails to cure such breach within thirty (30) calendar days after receiving written notice specifying the nature of the breach; or

(b) Another Party becomes subject to a Bankruptcy Event, and such Party or its successor fails to provide adequate assurance of continued performance within thirty (30) calendar days.

16.3 Termination by Escrow Agent. Escrow Agent may terminate this Agreement upon ninety (90) calendar days' prior written notice to Licensor and Beneficiary if: (a) fees due to Escrow Agent remain unpaid for more than sixty (60) calendar days after the due date; or (b) Escrow Agent determines that continued performance would violate applicable law or regulation.

16.4 Effect of Termination. Upon termination of this Agreement:

(a) If the Deposit Materials have not been released to Beneficiary, Escrow Agent shall, at Licensor's direction (or Beneficiary's direction if Licensor is unavailable or unresponsive): (i) return the Deposit Materials to Licensor; (ii) destroy the Deposit Materials and provide a certificate of destruction; or (iii) transfer the Deposit Materials to a successor escrow agent designated by Licensor and Beneficiary;

(b) All unpaid fees shall become immediately due and payable;

(c) The confidentiality obligations of Section 10, the trade secret protections of Section 11, the intellectual property provisions of Section 12, the indemnification obligations of Section 14, and the limitation of liability provisions of Section 15 shall survive termination; and

(d) Any rights that have accrued prior to termination, including any license rights granted under Section 8 as a result of a valid release, shall survive termination.

16.5 Transition Assistance. Upon termination of this Agreement, Escrow Agent shall provide reasonable transition assistance to Licensor and Beneficiary, including cooperating in the transfer of Deposit Materials to a successor escrow agent, for a period of up to sixty (60) calendar days following the effective date of termination.

17. GOVERNING LAW AND DISPUTE RESOLUTION

17.1 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. Pursuant to N.Y. Gen. Oblig. Law § 5-1401, the Parties agree that New York law shall govern this Agreement, acknowledging that the value of the transactions contemplated hereby equals or exceeds Two Hundred Fifty Thousand Dollars ($250,000). To the extent that the Uniform Commercial Code as adopted in New York applies to any aspect of this Agreement, such provisions shall supplement the terms of this Agreement.

17.2 Exclusive Jurisdiction and Venue. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in [________________________________] County, New York (including, without limitation, the Supreme Court of the State of New York, [________________________________] County, and the United States District Court for the [Southern / Eastern] District of New York) for any action or proceeding arising out of or relating to this Agreement. Pursuant to N.Y. Gen. Oblig. Law § 5-1402, each Party irrevocably submits to the jurisdiction of such courts and waives any objection it may have to venue or personal jurisdiction.

17.3 WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY 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 AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF LITIGATION; (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

17.4 Injunctive Relief. Notwithstanding any other provision of this Agreement, any Party may seek injunctive or other equitable relief in any court of competent jurisdiction in the State of New York to protect its Intellectual Property Rights, trade secrets, or Confidential Information, or to prevent irreparable harm, without the necessity of posting a bond or proving actual damages, to the extent permitted under New York law. The pursuit of equitable relief shall not constitute a waiver of any Party's right to pursue any other remedy available at law or in equity.

17.5 Arbitration (Optional). The Parties may elect to resolve disputes arising under this Agreement through binding arbitration as follows:

☐ Arbitration Elected. Any dispute, controversy, or claim arising out of or relating to this Agreement that cannot be resolved through good faith negotiation within thirty (30) calendar days shall be settled by binding arbitration administered by [________________________________] in accordance with its Commercial Arbitration Rules. The arbitration shall take place in [________________________________] County, New York. The arbitral tribunal shall consist of [one (1) / three (3)] arbitrator(s) with experience in technology and intellectual property matters. The arbitrator(s) shall apply New York law. The award shall be final and binding, and judgment upon the award may be entered in any court having jurisdiction.

☐ Arbitration Not Elected. The Parties agree to resolve all disputes exclusively through litigation in the courts specified in Section 17.2.

17.6 Attorneys' Fees. In any action or proceeding to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing Party, to the extent permitted by New York law.

18. NEW YORK-SPECIFIC PROVISIONS

18.1 Electronic Signatures — ESRA. This Agreement may be executed by electronic signature in accordance with the New York Electronic Signatures and Records Act (N.Y. State Tech. Law Art. 3, §§ 301-309) ("ESRA"). The Parties acknowledge that New York has not adopted the Uniform Electronic Transactions Act (UETA) and instead follows ESRA for the validation of electronic signatures and records. Electronic signatures affixed to this Agreement shall have the same force and effect as original handwritten signatures. Each Party consents to the use of electronic signatures and electronic records in connection with this Agreement, and waives any objection to the admissibility of electronic signatures or records as evidence in any proceeding arising under this Agreement, in accordance with N.Y. State Tech. Law § 306.

18.2 Choice of Law Validation (GOL § 5-1401). The Parties acknowledge that, pursuant to N.Y. Gen. Oblig. Law § 5-1401, the parties to any contract, agreement, or undertaking, contingent or otherwise, in consideration of, or relating to any obligation arising out of a transaction covering in the aggregate not less than Two Hundred Fifty Thousand Dollars ($250,000), may agree that the law of the State of New York shall govern their rights and duties in whole or in part, whether or not such contract, agreement, or undertaking bears a reasonable relation to the State of New York. The Parties represent that the aggregate value of the transactions contemplated by this Agreement and the Underlying Agreement meets this threshold.

18.3 Consumer Protection (Gen. Bus. Law § 349). To the extent that any transaction contemplated by this Agreement involves a consumer transaction, nothing in this Agreement shall limit or waive any rights that a Party may have under N.Y. Gen. Bus. Law § 349, which prohibits deceptive acts and practices in the conduct of any business, trade, or commerce in the State of New York. Section 349 provides a private right of action and permits recovery of actual damages, treble damages up to $1,000, and reasonable attorneys' fees.

18.4 SHIELD Act Compliance. The Parties acknowledge that the New York Stop Hacks and Improve Electronic Data Security Act (N.Y. Gen. Bus. Law §§ 899-aa, 899-bb) imposes obligations on persons and businesses that own or license computerized data containing private information of New York residents. To the extent that the Deposit Materials contain or provide access to private information as defined in the SHIELD Act, all Parties shall comply with the data breach notification requirements of § 899-aa and the data security requirements of § 899-bb, including the requirement to notify affected individuals within thirty (30) calendar days of discovering a breach, as amended in 2024.

18.5 Usury Compliance. All interest rates, late payment charges, and other financial terms in this Agreement are intended to comply with the usury limitations of the State of New York. The civil usury limit in New York is sixteen percent (16%) per annum, as established by N.Y. Banking Law § 14-a and N.Y. Gen. Oblig. Law § 5-501. The criminal usury limit is twenty-five percent (25%) per annum under N.Y. Penal Law § 190.40. If any provision of this Agreement is determined to impose an interest charge in excess of the applicable usury limit, such provision shall be automatically reformed to the maximum rate permitted by law, and any excess interest collected shall be refunded or credited to the payor.

18.6 Statute of Limitations. Actions arising under this Agreement shall be subject to the following statutes of limitations under New York law: (a) actions for breach of contract shall be commenced within six (6) years from the date of breach pursuant to N.Y. CPLR § 213(2); (b) actions for trade secret misappropriation under New York common law shall be commenced within three (3) years from the date of misappropriation; and (c) actions under the Uniform Commercial Code as adopted in New York, to the extent applicable, shall be commenced within four (4) years from the date of breach pursuant to N.Y. UCC § 2-725.

18.7 Bankruptcy Code Section 365(n) Election. In the event that Licensor becomes a debtor in a case under the Bankruptcy Code, and the trustee or debtor-in-possession rejects this Agreement or the Underlying Agreement, Beneficiary may elect to retain its rights under this Agreement pursuant to 11 U.S.C. § 365(n)(1)(B), including the right to the Deposit Materials as supplementary to the intellectual property license granted under the Underlying Agreement. Licensor acknowledges and agrees that the Source Code and related materials constitute "intellectual property" as defined in 11 U.S.C. § 101(35A).

18.8 UCC Applicability. To the extent that any aspect of this Agreement involves the sale or license of "goods" or "software" as defined under Article 2 or Article 2A of the Uniform Commercial Code as adopted in New York, the applicable UCC provisions shall supplement the terms of this Agreement. In the event of any conflict between the UCC and the express terms of this Agreement, the express terms of this Agreement shall control to the extent permitted by law.

18.9 Commercial Reasonableness. The Parties acknowledge that this Agreement has been negotiated at arm's length between sophisticated commercial parties, each represented by (or having had the opportunity to be represented by) independent legal counsel. All terms of this Agreement are commercially reasonable under New York contract law, and no Party shall assert that any term is unconscionable or the result of unequal bargaining power.

19. MISCELLANEOUS

19.1 Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered personally; (b) one (1) Business Day after deposit with a nationally recognized overnight courier, with delivery confirmation; (c) five (5) Business Days after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid; or (d) when sent by email to the email address specified in Section 1, provided that a confirmation copy is sent by overnight courier within one (1) Business Day. Notices shall be sent to the addresses specified in Section 1, or to such other address as a Party may designate by written notice to the other Parties.

19.2 Entire Agreement. This Agreement, together with the Schedules hereto and the Underlying Agreement, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, warranties, and understandings, whether oral or written, relating to such subject matter.

19.3 Amendments. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by all three Parties or their authorized representatives.

19.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving Party. No failure or delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.

19.5 Assignment. No Party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Parties, except that: (a) Beneficiary may assign this Agreement to an Affiliate or to a successor in connection with a merger, acquisition, or sale of substantially all of Beneficiary's assets, provided that the assignee assumes all of Beneficiary's obligations hereunder; and (b) Licensor may assign this Agreement to a successor in connection with a merger, acquisition, or sale of substantially all of Licensor's assets or the Software Product, provided that the assignee assumes all of Licensor's obligations hereunder. Any purported assignment in violation of this Section shall be void and of no effect.

19.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the remaining provisions of this Agreement shall remain in full force and effect.

19.7 Force Majeure. No Party shall be liable for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay results from a Force Majeure Event, provided that the affected Party: (a) promptly notifies the other Parties of the Force Majeure Event; (b) uses commercially reasonable efforts to mitigate the effects of the Force Majeure Event; and (c) resumes performance as soon as reasonably practicable after the Force Majeure Event ceases. If a Force Majeure Event continues for more than ninety (90) consecutive calendar days, any Party may terminate this Agreement upon thirty (30) calendar days' written notice.

19.8 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic transmission (including email transmission of PDF or similar format) shall be deemed an original execution and delivery, in accordance with ESRA.

19.9 Headings. The headings in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.

19.10 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties, except that Escrow Agent acts as a custodian and fiduciary with respect to the Deposit Materials.

19.11 Third-Party Beneficiaries. Except as expressly provided in Section 14 with respect to indemnitees, this Agreement is not intended to confer any rights or remedies upon any person other than the Parties and their permitted successors and assigns.

19.12 Order of Precedence. In the event of any conflict between this Agreement and the Underlying Agreement, the terms of this Agreement shall control with respect to escrow-related matters, and the terms of the Underlying Agreement shall control with respect to all other matters, unless the Parties agree otherwise in writing.

19.13 Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing the drafting of any provision. The words "include," "includes," and "including" shall be deemed to be followed by "without limitation."

19.14 Cumulative Remedies. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any other rights or remedies available at law, in equity, or otherwise.

20. SIGNATURES

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.

LICENSOR

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

BENEFICIARY

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

ESCROW AGENT

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

21. SCHEDULES

SCHEDULE A — FEE SCHEDULE

Payment Terms: Net [____] days from invoice date.
Late Payment Interest Rate: [____]% per annum (not to exceed 16% per annum per N.Y. Banking Law § 14-a).

SCHEDULE B — DEPOSIT MATERIALS INVENTORY

(Attach additional pages as necessary.)

Software Product Version: [________________________________]
Date of Deposit: [__/__/____]
Total Number of Files: [____]
Total Size of Deposit: [____] GB/MB

Licensor Certification: I certify that the above inventory is complete and accurate, and that the Deposit Materials are sufficient to compile, build, deploy, and maintain the Software Product.

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

SCHEDULE C — VERIFICATION LEVELS AND PROCEDURES

Tier 1 — Inventory Verification Procedures:
1. Compare file count and names against submitted inventory
2. Verify hash values (SHA-256) for each deposited file
3. Confirm all files are readable and in expected formats
4. Check for presence of README or index file
5. Verify logical directory structure organization
6. Estimated completion time: [____] Business Days

Tier 2 — Technical Review and Compilation Verification Procedures:
1. Complete all Tier 1 procedures
2. Attempt compilation/interpretation of Source Code using documented Build Environment
3. Verify all referenced libraries and dependencies are present or identified
4. Review Documentation for completeness and consistency
5. Identify missing files, broken references, or dependency gaps
6. Test database schema creation from provided scripts
7. Estimated completion time: [____] Business Days

Tier 3 — Full Build and Functional Verification Procedures:
1. Complete all Tier 1 and Tier 2 procedures
2. Perform complete build of Software Product in clean environment
3. Execute available automated test suites
4. Verify functionality against Documentation
5. Perform deployment testing in representative environment
6. Conduct performance baseline comparison (if applicable)
7. Prepare detailed verification report
8. Estimated completion time: [____] Business Days

Deficiency Classification:
- Critical: Prevents compilation, build, or basic operation of the Software Product
- Major: Significantly impairs functionality or maintenance capability
- Minor: Does not materially affect ability to use or maintain the Software Product

Remediation Deadlines:
- Critical deficiencies: [____] Business Days
- Major deficiencies: [____] Business Days
- Minor deficiencies: [____] Business Days

SCHEDULE D — RELEASE REQUEST FORM AND OBJECTION PROCEDURE

RELEASE REQUEST FORM

To: Escrow Agent — [________________________________]
From: Beneficiary — [________________________________]
Date: [__/__/____]
Agreement Number: [________________________________]

Release Condition(s) Asserted (check all that apply):

☐ Section 6.1(a) — Bankruptcy Event
☐ Section 6.1(b) — Cessation of Business
☐ Section 6.1(c) — Material Breach of Maintenance and Support
☐ Section 6.1(d) — Extended Service Unavailability
☐ Section 6.1(e) — Failure to Deposit or Update
☐ Section 6.1(f) — Assignment Without Consent
☐ Section 6.1(g) — Dissolution or Liquidation
☐ Section 6.1(h) — Regulatory Action
☐ Section 6.1(i) — Failure to Cure Verification Deficiencies
☐ Section 6.1(j) — Additional Trigger (specify): [________________________________]

Factual Description of Release Condition(s):
[________________________________]
[________________________________]
[________________________________]

Supporting Evidence Attached:
☐ Yes — Number of exhibits: [____]
☐ To be provided within [____] Business Days

Sworn Statement:
I, the undersigned, being duly authorized to act on behalf of Beneficiary, hereby declare under penalty of perjury under the laws of the State of New York that the foregoing statements are true and correct to the best of my knowledge and belief, and that Beneficiary has provided or is concurrently providing a copy of this Release Request to Licensor at the address specified in the Agreement.

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

OBJECTION NOTICE FORM

To: Escrow Agent — [________________________________]
Cc: Beneficiary — [________________________________]
From: Licensor — [________________________________]
Date: [__/__/____]

Grounds for Objection:
[________________________________]
[________________________________]
[________________________________]

Supporting Evidence Attached:
☐ Yes — Number of exhibits: [____]

Sworn Statement:
I, the undersigned, being duly authorized to act on behalf of Licensor, hereby declare under penalty of perjury under the laws of the State of New York that the foregoing statements are true and correct to the best of my knowledge and belief.

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

OBJECTION RESOLUTION PROCEDURE:

1. Upon receipt of an Objection Notice, Escrow Agent shall hold the Deposit Materials and notify Beneficiary within two (2) Business Days.
2. Licensor and Beneficiary shall attempt good faith negotiation for fifteen (15) Business Days.
3. If negotiation fails, either Party may invoke arbitration per Section 17.5 or file an action in the courts specified in Section 17.2.
4. Escrow Agent shall release or continue to hold the Deposit Materials as directed by the final resolution of the dispute.
5. Escrow Agent shall not be liable for any delay in release resulting from the objection process.

This Source Code Escrow Agreement template is provided for informational purposes only and does not constitute legal advice. This template must be reviewed and customized by a qualified attorney licensed in the State of New York before use. Do not execute this document without professional legal review. Laws and regulations may change; verify all statutory citations before use.

Prepared for use on the ezel.ai platform.

Sources and References

• N.Y. Gen. Oblig. Law §§ 5-501, 5-1401, 5-1402
• N.Y. Banking Law § 14-a
• N.Y. Penal Law § 190.40
• N.Y. State Tech. Law Art. 3, §§ 301-309 (ESRA)
• N.Y. Gen. Bus. Law §§ 349, 899-aa, 899-bb (SHIELD Act)
• N.Y. CPLR § 213
• N.Y. UCC Art. 2
• 18 U.S.C. §§ 1833, 1836-1839 (Defend Trade Secrets Act)
• 11 U.S.C. §§ 101(35A), 365(n) (Bankruptcy Code)
• Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 624 N.E.2d 1007 (1993)