Software Escrow & Copyright Agents Pty Ltd
Melbourne Office - PO Box 452, COLLINS STREET WEST VIC 8007 AUSTRALIA
Sydney Office - GPO Box 2506, SYDNEY NSW 2001 AUSTRALIA
Telephone: Melbourne Office - +61 3 9629 3534 Sydney Office - +61 2 9233 2655
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: seca@escrowagent.com.au Internet: http://www.escrowagent.com.au

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Software Escrow & Copyright Agents Pty Ltd - Software Escrow Agreement

This Agreement is made on the Agreement Date between the Parties specified in Schedule 1 as Escrow Agent, Customer and Supplier respectively.

Recitals

A.

Escrow Agent has the skills and resources to escrow the Escrow Materials.

B.

Supplier proposes to deposit the Escrow Materials with Escrow Agent and Customer proposes to gain access to the Escrow Materials on the basis set out in this Agreement.

Operative Part

1.

Definitions

1.1

In this Agreement, unless inconsistent with the context:


(a)

Agreement means this agreement, its recitals, provisions and any schedule of this agreement.


(b)

Clause means a clause of this Agreement.


(c)

Force Majeure means an act, omission or circumstance over which Escrow Agent could not reasonably have exercised control.


(d)

Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.


(e)

Sub-clause means a sub-clause of this Agreement.

2.

Interpretation

2.1

In this Agreement, unless inconsistent with the context:


(a)

Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.


(b)

Words denoting the singular number shall include the plural number and vice versa.


(c)

Words denoting any gender shall include all other genders.


(d)

A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.


(e)

Money references are references to Australian currency.


(f)

A reference to "includes", "including" or "inclusive" is to be construed as being a reference to "includes, without limitation", "including, without limitation", and "inclusive, without limitation" respectively.


(g)

Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.


(h)

Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.


(i)

A provision of this Agreement shall not be construed adversely to the Party that drafted it.


(j)

If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.


(k)

The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and clauses of this Agreement; and thereafter in the order specified (if any) in Schedule 1.


(l)

No remedy, expressly granted to Escrow Agent excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Escrow Agent.

3.

Duration

3.1

This Agreement shall remain in force until Escrow Materials are released or destroyed in accordance with this Agreement or this Agreement is otherwise terminated.

4.

Deposit of Escrow Materials

4.1

Supplier shall deposit the Escrow Materials within the Update Frequency after the Commencement Date with Escrow Agent.

4.2

If any modification is made to the executable version of the Escrow Materials supplied to Customer then Supplier shall within the Update Frequency deposit the modified version of the Escrow Materials with Escrow Agent.

4.3

Escrow Agent shall report to Customer any deposits (together with current holdings) when a deposit is received, current holdings once annually and current holdings upon request. Escrow Agent shall not be obliged to otherwise report any deposits made, or not made, by the Supplier.

5.

Storage

5.1

Escrow Agent shall store the Escrow Materials in accordance with the Storage Method.

6.

Details

6.1

Escrow Agent shall, upon request, provide a list of all the Escrow Materials deposited, stored and released pursuant to this Agreement.

7.

Access to Escrow Materials

7.1

Unless required by law or this Agreement, Escrow Agent shall not permit access to the Escrow Materials by any person not authorised in writing by both Supplier and Customer.

7.2

Sub-clause 7.1 does not apply to personnel authorised by Escrow Agent to perform its obligations pursuant to this Agreement.

8.

Loss of Escrow Materials

8.1

If the Escrow Materials are lost, destroyed or damaged whilst in the possession, custody or control of Escrow Agent, Escrow Agent shall:


(a)

promptly notify Supplier and Customer; and


(b)

co-operate in the replacement of the lost, damaged or destroyed Escrow Materials.

9.

Verification

9.1

Escrow Agent shall not be required to verify the Escrow Materials deposited pursuant to this Agreement.

9.2

At the request of Customer:


(a)

Escrow Agent may verify the Escrow Materials upon payment of additional fees by Customer; and


(b)

Supplier shall provide such reasonable assistance as is requested by Escrow Agent from time to time in relation to any such verification.

9.3

The costs of the verification process referred to in Sub-clause 9.2 shall be paid in advance by Customer. However, in the event that the Escrow Materials fail the verification process Supplier shall pay such costs to Customer.

10.

Release of Escrow Materials to Supplier

10.1

Subject to Clause 12, Escrow Agent shall, at Supplier's option, return the Escrow Materials to Supplier or destroy the Escrow Materials if:


(a)

Customer consents to such release;


(b)

Customer is in material breach of this Agreement or the Master Agreement; or


(c)

Customer becomes subject to any form of insolvency administration.

10.2

Escrow Agent may at any time provide Supplier with a copy of the Escrow Materials.

11.

Release of Escrow Materials to Customer

11.1

Subject to Clause 12, Escrow Agent shall provide a copy of the Escrow Materials to Customer if:


(a)

Supplier consents to such release;


(b)

the events set out in the Additional Trigger Events to trigger such release occur;


(c)

the events set out in the Master Agreement to trigger such release occur; or


(d)

Supplier becomes subject to any form of insolvency administration.

11.2

If the Escrow Materials are released to Customer in accordance with this Clause then Customer shall be entitled to use, modify and copy the Escrow Materials solely in accordance with Customer's rights and obligations under the Master Agreement. Supplier warrants that the Escrow Materials are sufficient for Customer to be able to do same.

If there is no Master Agreement (eg. a Software Licence and Support Agreement between Supplier and Customer), replace this text with “to build executable code to be used for Customer’s own internal use.”

12.

Objection to release of Escrow Materials

12.1

A Party seeking release of a copy of the Escrow Materials pursuant to Clause 10.1 or 11.1 shall give 7 days prior notice to other Party of such a notice being proposed to be given to Escrow Agent.

12.2

Escrow Agent is under no obligation to release a copy of the Escrow Materials unless:


(a)

evidence that Sub-clause 12.1 has been satisfied is provided; and


(b)

Escrow Fees have been paid in full including any applicable Release Fee.

12.3

A Party who receives a notice pursuant to Sub-clause 12.1 may object, by notice in writing to Escrow Agent and the other Party on the basis that the facts relied upon by the other Party are inaccurate.

12.4

Upon receipt of such notice, Escrow Agent shall not release a copy of the Escrow Materials until the Parties consent to such release or a Court makes a declaration in favour of a Party seeking such release.

12.5

Escrow Agent shall comply with any declaration or direction of the Court.

13.

Escrow Fees and Charges

13.1

Escrow Paying Party shall pay the Escrow Fees to Escrow Agent.

13.2

The Escrow Fees are non-refundable despite termination of this Agreement.

13.3

The Escrow Fees may be increased on 30 days' notice in writing. Customer or Supplier may by notice in writing terminate this Agreement within that period.

13.4

Unless stated to the contrary, the Escrow Fees are exclusive of all taxes, GST, duties, fees or other government charges which may be imposed on the storage of Escrow Materials, this Agreement or otherwise. Escrow Paying Party shall pay such taxes, GST, duties, fees or other government charges immediately on demand.

13.5

If any payment is not made within 7 days of the due date, Escrow Agent may, without further notice to Supplier or Customer, suspend further services or its remaining obligations to Supplier and Customer under this Agreement.

14.

Confidentiality

14.1

All Parties shall treat as confidential the terms of this Agreement, the Escrow Materials and any other related information, which comes into their possession, control or custody pursuant to this Agreement. The obligations under this Clause survive the termination of this Agreement.

15.

Inquiries by Escrow Agent

15.1

Escrow Agent shall not be bound to inquire about the validity of the grounds for any notice or direction to it.

15.2

If Escrow Agent is in any doubt as to its obligations under this Agreement it shall seek directions from Supplier and Customer. If Supplier and Customer cannot agree on directions to be given to Escrow Agent within 7 days of being requested to do so, Escrow Agent shall wait for directions from a Court.

16.

Legal Costs and Indemnity

16.1

Customer and Supplier jointly and severally indemnify and shall keep Escrow Agent indemnified for all costs, taxes and expenses on a solicitor and own client basis incurred in connection with this Agreement and any dispute in relation to this Agreement.

17.

Implied Terms

17.1

Except as expressly provided to the contrary in this Agreement any condition or warranty whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement is excluded.

17.2

Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of Escrow Agent for any breach of such term shall be limited, at the option of Escrow Agent, to the supplying of the services again or the payment of the cost of having the services supplied again.

18.

Liability of Escrow Agent

18.1

Except as expressly provided to the contrary in this Agreement, Escrow Agent shall not be under any liability to Supplier or Customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the failure or omission on the part of Escrow Agent to comply with its obligations under this Agreement.

If required each of these clauses can be deleted. The pricing in such a case is that the Annual Fee increases by $400 +GST per annum.

19.

Termination

19.1

Upon payment in full of all Escrow Fees, Customer may terminate this Agreement on 30 days' notice.

19.2

Escrow Agent may terminate this Agreement immediately by notice in writing if any payment due to Escrow Agent pursuant to this Agreement remains unpaid for a period of 30 days.

19.3

Upon termination, amongst other things:


(a)

Escrow Agent shall, unless directed otherwise, destroy the Escrow Materials. A Party making a direction otherwise shall pay all fees applicable to complying with that direction; and


(b)

Escrow Paying Party shall pay the Release Fee.

20.

Survival

20.1

The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

21.

Force Majeure

21.1

Escrow Agent shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.

22.

Assignment, Novation and Sub-Contracts

22.1

Supplier or Customer shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Escrow Agent.

22.2

Escrow Agent may sub-contract for the performance or part performance of this Agreement.

23.

Waiver

23.1

Any failure by a Party to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by a Party will not be construed as a waiver of that Party's rights.

23.2

No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party. Such a waiver by a Party shall not prejudice its rights in respect of any subsequent breach of this Agreement by the other Party.

24.

Governing Law

24.1

This Agreement shall be governed by and construed according to the law of Jurisdiction.

24.2

The Parties irrevocably submit to the exclusive jurisdiction of the courts of Jurisdiction. Any proceedings in a Commonwealth court shall be commenced in Jurisdiction.

25.

Notices

25.1

Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 1.

25.2

Notices shall be deemed given in the case of:


(a)

hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;


(b)

posting, 3 days after dispatch; and


(c)

facsimile, upon completion of transmission.

26.

Entire Agreement

26.1

Unless stated expressly to the contrary in this Agreement:


(a)

this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;


(b)

this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;


(c)

no Party may bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and


(d)

no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.

Executed as an Agreement

By Supplier
by being signed by the following persons or if a seal is affixed witnessed by the following persons:

)
)Attach company seal here
)
)

Director/Secretary sign here

Director sign here


Print Name of Director/Secretary here

Print Name of Director here

Director/Secretary

Director

By Customer
by being signed by the following persons or if a seal is affixed witnessed by the following persons:

)
)Attach company seal here
)
)

Director/Secretary sign here

Director sign here


Print Name of Director/Secretary here

Print Name of Director here

Director/Secretary

Director

By Escrow Agent
by being signed by the following persons or if a seal is affixed witnessed by the following persons:

)
)
)
)
)

Steve White
Director/Secretary

Sarah Pike
Director

Schedule 1 - General Details

Agreement Date

Additional Trigger Events

Customer

Customer ABN

Customer Address

Commencement Date

Escrow Agent

Software Escrow & Copyright Agents Pty Ltd ABN 68 007 214 708

Escrow Agent Address

Australian Capital Territory / New South Wales / Northern Territory / Queensland:


GPO BOX 2506 SYDNEY NSW 2001 Australia


Suite 604, 109 Pitt Street SYDNEY NSW 2000 Australia


Facsimile: + 612 9233 3044


South Australia / Tasmania / Victoria / Western Australia:


PO Box 452 COLLINS STREET WEST VIC 8007 Australia


Suite 419, 838 Collins Street, DOCKLANDS VIC 3008 Australia


Facsimile: + 613 9629 3217

Escrow Fees

Setup Fee: $Nil


Annual Fee: $900 plus GST per annum in advance commencing on execution of this Agreement plus if more than 4 DVDs/CDs/Hard Disks/USB Keys/Electronic Deposits are held then an additional fee of $150 plus GST per additional deposit per annum is payable.


If unlimited deposits are required please use this wording

Annual Fee: $1,500 plus GST per annum in advance commencing on execution of this Agreement. This fee includes unlimited deposits.


Release Fee: $Nil upon receipt of a request to release or destroy the Escrow Materials.

Escrow Materials

Source Code for [insert details]/Data for /UserIDs/Passwords for a SaaS instance/As specified in the Master Agreement

Escrow Paying Party

Customer/Supplier

Jurisdiction

Australian Capital Territory / New South Wales / Northern Territory / Queensland / South Australia / Tasmania / Victoria / Western Australia / New Zealand (delete to suit)

Master Agreement

[insert details of the master agreement] and all further renewals or extensions thereof.


This is typically a software licence and support agreement or similar document.

Storage Method

Bank Vault/SaaS solution.

Supplier

Supplier ABN

Supplier Address

Update Frequency

90 days (or such later period as may be specified in the Master Agreement)


  © 1994-2016 Software Escrow & Copyright Agents Pty Ltd ABN 68 007 214 708. All Rights Reserved.
  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au