Software Escrow Agreement (Page 5 of 8) in pdf

in full force and effect. If Licensee does not give written notice of its objection to Escrow

Agent and Developer prior to the expiry of the thirty (30) day period, this Agreement shall

be deemed terminated and Escrow Agent shall release and deliver the Materials held in

escrow to Developer.

DISCUSSION: Both the Developer and the Licensee must agree to terminate the Agreement.

Presumably they would agree to terminate if the License was terminated and neither required

the protection offered by the Escrow Agreement. However, in the event that the Licensee

objects to terminating the Agreement, the Agreement will remain in effect.

Representations, Warranties and Indemnifications

(a)

Escrow Agent represents and warrants that:

(i)

Other than being a party to this Agreement, it is an independent third party in

respect to the Developer and Licensee and is not an affiliated, associated or

related entity to Developer or Licensee;

(ii)

It has the right and capacity to enter into this Agreement and fully perform all of

its obligations and provide the services hereunder;

(iii)

It shall use commercially reasonable efforts to keep the Materials in safe keeping

and perform its obligations as Escrow Agent in accordance with the terms of this

Agreement;

(iv)

It shall not disclose to any third party or make use of the Materials without the

express written approval of Developer and Licensee;

(v)

It shall takes such steps as are reasonably necessary and desirable to protect

the confidentiality of the Materials and prevent the unauthorized disclosure

thereof, including without limitation storing the Materials in such away to preserve

the confidentiality of the Materials and restrict disclosure of and access to the

Materials.

(b)

Escrow Agent shall indemnify and save harmless Developer and the Licensee from any

and all damages, costs, liability, expenses, including reasonable legal fees, suffered by

Developer and/or Licensee as result of any breach of its representations and warranties.

Notwithstanding the forgoing, Escrow Agent shall not be held responsible or liable for

any acts of Developer and/or Licensee and Escrow Agent shall have no liability under

this Agreement whatsoever except for its acts of negligence, misconduct or a material

breach of this Agreement. Developer and Licensee shall indemnify and save harmless

Escrow Agent from any and all damages, costs and liability suffered by Escrow Agent

arising as result of the breach of this Agreement or the License or breach or infringement

any law or right of any third party by Developer and/or Licensee.

DISCUSSION: The Escrow Agent will be required to represent and warrant that it has the

capacity to enter the Agreement and perform its services, that it will protect the confidentiality of

the Materials held in escrow by it, and that it will not use the Materials for any other purpose

than fulfilling its obligations under the Agreement. The Escrow Agent agrees to indemnify the

other parties for any damages they suffer as a result of its breach of its representations and

warranties, however it specifically disclaims any responsibilities or liabilities relating to the

Software Escrow Agreement Page 5

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