Software Escrow Agreement (Page 7 of 8) in pdf

12.

Assignment

(a)

Neither party may assign or otherwise transfer this Agreement without the written

consent of the other parties. This Agreement shall enure to the benefit of and bind the

parties hereto and their respective legal representatives, successors and assigns.

DISCUSSION: None of the parties will want the others to be able to “assign” or sell the

Agreement to a third party with whom it has no knowledge, experience or prior relationship

without prior approval.

13.

Governing Law

(a)

This Agreement shall be governed by and construed in accordance with the laws of the

Province of X in the country of Canada.

DISCUSSION:

The courts’ interpretation of law in Canada and the applicable provincial

legislation can vary from jurisdiction to jurisdiction.

Therefore each of the Parties wants to

ensure it understands how the terms of the Agreement will likely be interpreted and what

provincial law may apply to the circumstances. Consequently, the Parties expressly state which

laws will apply to the contract. Also, in the event that there is a dispute that ends up in court,

each of the Parties will want to ensure that the jurisdiction in which it will litigate is the most

convenient to its head office and/or most favourable in terms of law.

Most parties to

agreements will prefer both the governing law and the jurisdiction of the province in which its

head office is located since it is most likely to understand the local law and it is very expensive

to travel and retain legal counsel for litigation taking place in a foreign jurisdiction. However,

since this Agreement is likely to be a standard form template by the Escrow Agent for all its

clients, the governing law will likely be the province in which the Escrow Agent locates its head

office.

14.

Entire Agreement

(a)

This Agreement, including the recitals, sets forth the entire agreement between the

parties with respect to the subject matter hereof and shall be amended only by a writing

signed by the parties.

DISCUSSION:

The purpose of this clause is to explicitly exclude any oral or written

representations, agreements or communications that may have taken place between the

Parties, from the binding terms of the written Agreement. This is important since there may

have been extended negotiations between the Parties prior to them reaching a final meeting of

the minds and reducing the terms to the written Agreement. It prevents any party from relying

on anything external to the written Agreement, such as oral promises or inducements. It also

specifies that any amendment to the Agreement must be made in writing and signed by all the

Parties.

15.

Counterparts

(a)

This Agreement may be executed in counterparts in the same form and such parts so

executed shall together form one original document and be read and construed as if one

copy of the Agreement had been executed.

Software Escrow Agreement Page 7

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