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SCHEDULE 21
ESCROW AGREEMENT
Part C
[TP PROJECT ESCROW AGREEMENT]
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THIS ESCROW AGREEMENT is made on the [ ] day of [ ] 20[ ]
BETWEEN:
(1)
Independent Party whose registered office is at [●] (CRN: [●]) (the
"Owner");
(2)
Genesys Telecommunications Limited, whose registered office is at Fluor Centre,
Watchmoor Park, Riverside Way, Camberley, Surrey, GU15 3YL (CRN: 05295532)
(the
"Licensee"); and
(3)
NCC ESCROW INTERNATIONAL LIMITED whose registered office is at
Oxford House, Oxford Road, Manchester M1 7ED, England (CRN: 3081952)
(
"NCC").
PRELIMINARY:
(A)
The Licensee has been granted a licence to use, and has granted a sub-licence to the
Secretary of State for Transport ("Sub-Licensee") to use, a software package
comprising computer programs.
(B)
Certain technical information and documentation describing the software package are
the confidential property of the Owner and are required for understanding,
maintaining and correcting the software package.
(C)
The Owner acknowledges that in certain circumstances the Licensee or Sub-Licensee
may require possession of the technical information and documentation held under
this Agreement.
(D)
Each of the parties to this Agreement acknowledges that the consideration for their
respective undertakings given under it is the undertakings given under it by each of
the other parties.
IT IS AGREED THAT:
1.
DEFINITIONS
In this Agreement the following terms shall have the following meanings:
1.1
"Full Verification Service" means those bespoke tests agreed between the Licensee
and NCC for the verification of the Material;
1.2
"Intellectual Property Rights" means copyright, trade secrets, patents, and all other
rights of a similar nature;
1.3
"TP Licence Agreement" means the licence granted to the Licensee for the Package;
1.4
"Material" means the source code of the Package comprising the latest technical
information and documentation described in Schedules 1 and 2;
1.5
"Package" means the software package described in Schedule 1; and
1.6
"The Principal Agreement" means the agreement entered in to by the Licensee and
the Sub-Licensee on [Date];
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1.7
"Standard Verification Service" means those tests detailed in the Standard
Verification Service published by NCC from time to time.
2.
OWNER'S DUTIES AND WARRANTIES
2.1
The Owner shall:
2.1.1
deliver a copy of the Material to NCC within 30 days of the date of this
Agreement;
2.1.2
at all times ensure that the Material as delivered to NCC is capable of being
used to generate the latest version of the Package issued to the Licensee and
shall deliver further copies of the Material as and when necessary;
2.1.3
deliver to NCC a replacement copy of the Material within 6 months of the
last delivery;
2.1.4
deliver a replacement copy of the Material within 14 days of receipt of a
notice served upon it by NCC under the provisions of Clause 4.1.5; and
2.1.5
deliver with each deposit of the Material the information detailed in
Schedule 2.
2.2
The Owner warrants that:
2.2.1
it owns the Intellectual Property Rights in the Material or in respect of any
Source Code forming part of the Material that it does not own, it has been
granted valid and ongoing rights under licence by the third party owner(s)
thereof to deal with such Source Code in the manner anticipated under this
Agreement and that the Owner has the express authority of such third party
owner(s) to deposit the same under this Agreement as evidenced by signed
letter(s) of authorisation in the form set out in Schedule 5 to be provided to
NCC prior to or no later than at the time of such deposits;
2.2.2
the Material lodged under Clause 2.1 shall contain all information in
human-readable form and on suitable media to enable a reasonably skilled
programmer or analyst to understand, maintain and correct the Package
without the assistance of any other person.
3.
LICENSEE'S RESPONSIBILITIES
It shall be the responsibility of the Licensee to notify NCC of any change to the
Package that necessitates a replacement deposit of the Material.
4.
NCC'S DUTIES
4.1
NCC shall:
4.1.1
hold the Material in a safe and secure environment;
4.1.2
inform the Owner and the Licensee of the receipt of any copy of the
Material;
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4.1.3
in accordance with the terms of Clause 9 (Provision of the Services)
perform those tests that form part of its Standard Verification Service from
time to time;
4.1.4
at all times retain a copy of the latest verified deposit of the Material; and
4.1.5
notify the Owner if it becomes aware at any time during the term of this
Agreement that the copy of the Material held by it has been lost, damaged
or destroyed.
4.2
NCC shall not be responsible for procuring the delivery of the Material in the event of
failure by the Owner to do so.
5.
PAYMENT
NCC's fees are payable in accordance with Schedule 4.
6.
RELEASE EVENTS
6.1
Subject to the provisions of Clauses 6.2 and 6.3, NCC will release the Material to a
duly authorised officer of the Licensee if any of the following events occur:
6.1.1
the Owner enters into any company voluntary composition or individual
voluntary arrangement with its creditors or (being a company) enters into
liquidation whether compulsory or voluntary (other than for the purposes of
solvent reconstruction or amalgamation) or has a receiver or administrative
receiver appointed over all or any part of its assets or undertaking or a
petition is presented for an Administration Order or (being an individual or
partnership) becomes bankrupt, or an event occurs within the jurisdiction of
the country in which the Owner is situated which has a similar effect to any
of the above events in the United Kingdom;
6.1.2
the Owner ceases to carry on its business;
6.1.3
the Owner assigns its copyright (or licence of copyright) in the Material and
the assignee fails within 60 days of such assignment to offer the Licensee
substantially similar protection to that provided by this Agreement without
significantly increasing the cost to the Licensee;
6.1.4
the Owner, without legal justification, has defaulted to a material degree in
any obligation to provide maintenance or modification of the Package under
the Licence Agreement or any maintenance agreement entered into in
connection with the Package and has failed to remedy such default notified
by the Licensee to the Owner within a reasonable period; or
6.1.5
the Sub-Licensee exercises its right of step-in of the Principal Agreement
and it needs access to the Material as part of the [Required Action] (as
defined in the Principal Agreement).
6.2
The Licensee shall notify NCC of the event(s) specified in Clause 6.1 by delivering to
NCC a statutory or notarised declaration (the
"Declaration") made by an officer of
the Licensee attesting that such event has occurred and that the Licence Agreement
was still valid and effective up to the occurrence of such event and exhibiting:
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6.2.1
such documentation in support of the Declaration as NCC shall reasonably
require;
6.2.2
a copy of the Licence Agreement; and
6.2.3
a signed confidentiality undertaking as detailed in Schedule 3
then NCC will release the Material to the Licensee upon receipt of the release fee
stated in Schedule 4.
6.3
Upon receipt of a Declaration from the Licensee claiming a release event under
Clause 6.1 NCC shall send a copy of the Declaration to the Owner by registered post.
Unless within 14 days after the date of delivery the Owner delivers to NCC a counter-
notice signed by a duly authorised officer of the Owner stating that no such event has
occurred or that any such event has been rectified, then NCC will release the Material
to the Licensee upon receipt of the release fee stated in Schedule 4.
6.4
Where there is any dispute as to the occurrence of any of the events set out in Clause
6.1 or the fulfilment of any obligations under this Clause 6, such dispute will be
referred at the request of either the Owner or the Licensee to the Managing Director
for the time being of NCC for the appointment of an expert who shall give a decision
on the matter within 14 days of the date of referral or as soon as practicable thereafter.
The expert's decision shall be final and binding as between the Owner and the
Licensee except in the case of manifest error.
7.
CONFIDENTIALITY
7.1
The Material shall remain the confidential property of the Owner and in the event that
NCC provides a copy of the Material to the Licensee, the Licensee shall be permitted
to use the Material only in accordance with a confidentiality undertaking in the form
contained in Schedule 3.
7.2
NCC agrees to maintain all information and/or documentation coming into its
possession or to its knowledge under this Agreement in strictest confidence and
secrecy. NCC further agrees not to make use of such information and/or
documentation other than for the purposes of this Agreement and will not disclose or
release it other than in accordance with the terms of this Agreement.
7.3
Termination of this Agreement will not relieve NCC or its employees, or the Licensee
or its employees, from the obligations of confidentiality contained in this Clause 7.
8.
INTELLECTUAL PROPERTY RIGHTS
The release of the Material to the Licensee will not act as an assignment of any
Intellectual Property Rights that the Owner or any third party possesses in the
Material.
9.
VERIFICATION
9.1
Subject to the provisions of Clauses 9.2 and 9.3, NCC shall bear no obligation or
responsibility to any person, firm, company or entity whatsoever to determine the
existence, relevance, completeness, accuracy, effectiveness or any other aspect of the
Material.
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9.2
Upon the Material being lodged with NCC, NCC shall perform those tests in
accordance with its Standard Verification Service and shall provide a copy of the test
report to the parties to this Agreement.
9.3
The Licensee shall be entitled to require that NCC carries out a Full Verification
Service. Any reasonable charges and expenses incurred by NCC in carrying out a
Full Verification Service will be paid by the Licensee save that if in the opinion of the
expert appointed by the Managing Director of NCC the Material is substantially
defective in content any such reasonable charges and expenses will be paid by the
Owner.
10.
NCC'S LIABILITY
10.1
NCC shall not be liable for any loss caused to the Owner or the Licensee either jointly
or severally except for loss of or damage to the Material to the extent that such loss or
damage is caused by the negligent acts or omissions of NCC, its employees, agents or
sub-contractors and in such event NCC's total liability in respect of all claims arising
under or by virtue of this Agreement shall not (except in the case of claims for
personal injury or death) exceed the sum of £500,000.
10.2
NCC shall in no circumstances be liable to the Owner or the Licensee for indirect or
consequential loss of any nature whatsoever.
10.3
NCC shall be protected in acting upon any written request, waiver, consent, receipt or
other document furnished to it pursuant to this Agreement, not only in assuming its
due execution and the validity and effectiveness of its provisions but also as to the
truth and acceptability of any information contained in it, which NCC in good faith
believes to be genuine and what it purports to be.
11.
TERMINATION
11.1
NCC may terminate this Agreement by notice in writing to the Owner and the
Licensee after failure by the Owner or the Licensee to comply with a 30 day written
notice from NCC to pay any outstanding fee. If the failure to pay is on the part of the
Owner the Licensee shall be given the option of paying such fee itself. Such amount
shall be recoverable by the Licensee direct from the Owner.
11.2
NCC may terminate this Agreement by giving 60 days written notice to the Owner
and the Licensee. In that event the Owner and the Licensee shall appoint a mutually
acceptable new custodian on terms similar to those contained in this Agreement.
11.3
If a new custodian is not appointed within 30 days of delivery of any notice issued by
NCC in accordance with the provisions of Clause 11.2, the Owner or the Licensee
shall be entitled to request the President for the time being of the British Computer
Society to appoint a suitable new custodian upon such terms and conditions as he
shall require. Such appointment shall be final and binding on all parties.
11.4
For software which Licensee was or is not required to maintain under the Principal
Agreement, if the Principal Agreement has expired or has been lawfully terminated,
this Agreement shall automatically terminate on the same date.For software which the
Licensee was or is required to maintain under the Principal Agreement, this
Agreement shall automatically terminate two(2) years after the Principal Agreement
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has expired or has been lawfully terminated (or if earlier the date on which the
Contractor is no longer required to support the software under the Principal
Agreement.
11.5
The Licensee may terminate this Agreement at any time by giving written notice to
the Owner and NCC.
11.6
The Owner may only terminate this Agreement with the written consent of the
Licensee.
11.7
This Agreement shall terminate upon release of the Material to the Licensee in
accordance with Clause 6.
11.8
Upon termination under the provisions of Clauses 11.2, 11.4, 11.5 or 11.6 NCC will
deliver the Material to the Owner unless NCC is notified in writing by the Licensee
and the Sub-Licensee to deliver the Material to the Sub-Licensee. If NCC is unable to
trace the Owner using reasonable efforts and after a reasonable time, and having
notified the Licensee in writing of such intention, NCC will destroy the Material.
11.9
Upon termination under the provisions of Clause 11.1 the Material will be available
for collection by the Owner from NCC for 30 days from the date of termination.
After such 30-day period NCC will destroy the Material.
11.10 NCC may forthwith terminate this Agreement and destroy the Material if it is unable
to trace the Owner having used all reasonable endeavours to do so.
12.
GENERAL
12.1
This Agreement shall be governed by and construed in accordance with the laws of
England and Wales.
12.2
The Parties submit to the exclusive jurisdiction of the English Courts as regards any
claim or matter arising in relation to this Agreement.
12.3
This Agreement represents the whole agreement relating to the escrow arrangements
between the parties for the Package and supersedes all prior arrangements,
negotiations and undertakings.
12.4
All notices to be given to the parties under this Agreement shall be deemed to have
been duly given or made when delivered personally or 7 days after posting or if sent
by facsimile, 12 hours after despatch to the party to which such notice is required to
be given or made under this Agreement, addressed to the principal place of business,
or for companies based in the UK, the registered office.
12.5
The Licensee may at any time, by giving written notice to the other parties, assign
without consent its rights and obligations under this Agreement to the Sub-Licensee,
or the Sub-Licensee's nominee. The parties agree that the term of this Agreement will
not change as a result of such assignment, except with the written agreement of the
Sub-Licensee and the parties to this Agreement.
SCHEDULE 1
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The Material
The source code of the Package known as [•].
SCHEDULE 2
Material: Technical Information
The Material shall be supplied with details of the following:
1.
Details of the deposit; full name and version details, number of media items, media
type and density, file or archive format, list or retrieval commands, archive hardware
and operating system details.
2.
Name and functionality of each module/application of the Material.
3.
Names and versions of development tools etc.
4.
Documentation describing the procedures for building/compiling/executing/using the
software (technical notes, user guides).
5.
Hardcopy directory listings of the contents of the media.
6.
Name and contact details of employee(s) with knowledge of how to maintain and
support the Material.
SCHEDULE 3
Confidentiality Undertaking
This undertaking is given on release of the Material pursuant to an Escrow Agreement dated
[date] between:
(1)
[Independent Party] (the
"Owner");
(2)
Genesys Telecommunications Limited (the "Licensee");
(3)
The Secretary of State for Transport (the
"Sub-Licensee"); and
(4)
NCC ESCROW INTERNATIONAL LIMITED
(
"NCC");
1.
Definitions contained in the Escrow Agreement will apply to this undertaking.
2.
In consideration of NCC delivering the Material to the [Licensee/Sub-Licensee], the
[Licensee/Sub-Licensee] undertakes with the Owner and NCC:
2.1
to use the Material only for the purpose of understanding, maintaining and correcting
the Package exclusively on behalf of the [Licensee/Sub-License];
2.2
not to use the Material for any other purpose nor disclose it to any person save such of
its employees or contractors who need to know the same in order to understand,
maintain and correct the Package exclusively on behalf of the [Licensee/Sub-
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Licensee]. In that event such contractors shall enter into a Confidentiality
Undertaking direct with NCC in similar terms to this Undertaking;
2.3
to hold all media containing the Material in a safe and secure environment when not
in use; and
2.4
forthwith to destroy the same should the [Licensee/Sub-Licensee] cease to be entitled
to use the Package.
SCHEDULE 4
NCC's Fees (St£)
DESCRIPTION
FEE
OWNER
LICENSEE
1.
Initial Fee
£550
100%
NIL
2.
Annual Fee
(payable on completion of this Agreement £385
NIL
100%
and on each anniversary thereafter)
3.
Update Fee
(per update after the first 4 updates per £100
100%
NIL
annum)
4.
Storage Fee
(an additional annual fee may be payable NIL
100%
NIL
for deposits in excess of one cubic foot)
5.
Liability Fee
(£100 per £500,000 of liability exceeding NIL
100%
NIL
£500,000, per annum)
6.
Release Fee
(plus NCC's reasonable expenses)
£500
100%
NIL
1.
All fees are subject to VAT where applicable*
2.
All fees are reviewed by NCC from time to time
* only applicable to countries within the EU.
SCHEDULE 5
DRAFT LETTER OF AUTHORISATION
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(This document MUST be signed and returned to NCC Escrow on ["A"s] letterhead at the
time of execution of the Escrow Agreement or no later than at time of deposit of the Source
Code material owned by [A])
In consideration of £1.00 (one sterling pound) paid by ["B"] receipt of which is hereby
acknowledged by ["A"]
The undersigned, [name of authorised signatory] of _["A"]_______________________
hereby grants to, and confirms that _____["B"_]____________________ has the authority,
with regard to [name of "A"s software] software which is software licensed to
["B"]___________ under [the TP Licence Agreement] entered into by and between ["A"] and
["B"] dated _____________, to enter into the Escrow Agreement by and between/among
__["B"]_______, ["C"], ["D"] and NCC Escrow International Limited, a copy of which is
attached to this letter and initialled by the undersigned authorised signatory of ["A"] set forth
below for and on behalf of ["A"].
The undersigned confirms that ___["A"]______ is the owner of the intellectual property
rights which form part of the Material described in Schedule 1 of the Escrow Agreement.
I, the undersigned _______________ [name of Authorised Signatory] have read the Escrow
Agreement and confirm that I am fully aware of its terms and conditions, in particular but not
limited to the release events which will enable ["C"] and/or ["D"]to have certain rights to the
Source Code material of [A’s software].
Signed for and on behalf of ["A"]________________________________________
(Authorised Signatory)
Name
: _______________________
Position
: _______________________
Date
: ________________________
Please note the following when completing this document:
·
"A" = Intellectual Property Rights owner
·
"B" = The party authorised by "A" to enter into the Escrow Agreement
·
"C" = The Licensee under the Escrow Agreement
"D" = The Sub-Licensee in the Escrow Agreement
·
The IPR owner "A" should initial the first page of the attached Agreement.
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Signed on behalf of Genesys Telecommunications Litmited
Name: …………………………………..
…………………………………………..
Position: ………………………………...
(Authorised Signatory)
Signed on behalf of Independent Party
Name: …………………………………
…………………………………………..
Position: ………………………………
(Authorised Signatory)
Signed on behalf of NCC ESCROW INTERNATIONAL LIMITED
Name: ………………………………….
……………………………………………
Position: ……………………………….
(Authorised Signatory)
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