Common use of Escrow of Source Code Clause in Contracts

Escrow of Source Code. 1. SAP warrants that the source code for the Software, together with related Documentation as it is or becomes available, has been deposited in an escrow account maintained at Data Securities International Inc., Burlington, MA (the "Escrow Agent"), pursuant to an agreement between the Escrow Agent and SAP (the "Escrow Agreement"). 2. SAP will from time to time deposit into the escrow account copies of source code for Releases and Versions of the Software and related Documentation. 3. SAP or SAP's trustee in bankruptcy shall authorize the Escrow Agent to make and release a copy of the applicable deposited materials to Licensee upon the occurrence of any of the following events: (a) The existence of any one or more of the following circumstances, uncorrected for more than thirty (30) days: entry of an order for relief under Title 11 of the United States Code; the making by SAP of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of SAP's business or property; or action by SAP under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation; unless within the specified thirty (30) day period, SAP (including its receiver or trustee in bankruptcy) provides to Licensee adequate assurances, reasonably acceptable to Licensee, of its continuing ability and willingness to fulfill its maintenance obligations under this Agreement; (b) SAP has ceased its on-going business operations or that portion of its business operations relating to the sale, licensing and maintenance of the Software; or (c) Failure of SAP to carry out the material maintenance obligations, by termination of maintenance services by SAP or otherwise, imposed on it pursuant to this Agreement after reasonable opportunity has been provided to SAP America, Inc. and SAP AG to perform such obligations. 4. In no event shall Licensee have the right to access the applicable deposited materials if SAP America, Inc. or SAP AG perform SAP's maintenance obligations under this Agreement. 5. In the event of release under this Agreement, Licensee agrees that it will treat and preserve the deposited materials as a trade secret of SAP AG in accordance with the same precautions adopted by Licensee to safeguard its own trade secrets against unauthorized use and disclosure and in all cases at least with a reasonable degree of care. Release under this provision shall not extend Licensee any greater rights or lesser obligations than are otherwise provided or Imposed under this Agreement. This provision shall survive any termination of this Agreement.

Escrow of Source Code. 1. 12.1 SAP warrants that the source code for the Software, together with related Documentation as it is or becomes available, available has been deposited in an escrow account maintained at Data Securities International Inc., Burlington, MA by a third party provider (the "“Escrow Agent"”), pursuant to an agreement between the Escrow Agent and SAP SAP, (the "“Escrow Agreement"”). SAP will at all times maintain in force and perform its obligations under either (i) the Escrow Agreement or (ii) a successor escrow agreement with a successor escrow agent. SAP will (i) notify Licensee of any change of the escrow agent under the Escrow Agreement, of any change to the terms of the Escrow Agreement or of any termination thereof; and (ii) provide in all Escrow Agreements for release of the source code of the Software to Licensee on at least those conditions set forth below and provide for Licensee to have rights under such arrangement consistent with this Agreement. Licensee is an intended beneficiary under the Escrow Agreement, and will be an intended beneficiary under any successor escrow agreement. 2. 12.2 SAP will from time to time deposit into the escrow account copies of source code for Releases and Versions of the Software and related DocumentationDocumentation promptly following availability of the same to SAP’s licensees generally. 3. 12.3 SAP or SAP's ’s trustee in bankruptcy shall authorize the Escrow Agent to make and release a copy of the applicable deposited materials to Licensee upon the occurrence of any of the following events: (a) The existence of any one or more of the following circumstances, uncorrected for more than thirty (30) days: entry of an order for relief under Title 11 of the United States Code; the making by SAP of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of SAP's ’s business or property; or action by SAP under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation; unless within the specified thirty (30) day period, SAP (including its receiver or trustee in bankruptcy) provides to Licensee adequate assurances, reasonably acceptable to Licensee, of its continuing ability and willingness to fulfill its maintenance obligations under this Agreement; (b) SAP has ceased its on-going business operations or that portion of its business operations relating to the sale, licensing and maintenance of the Software; or (c) Failure of SAP to carry out the material maintenance obligations, by termination of maintenance services by SAP or otherwise, obligations imposed on it pursuant to this Agreement after reasonable opportunity has been provided to SAP America, Inc. and SAP AG to perform such obligations. 412.4 Upon the occurrence of any of the events set forth in Section 12.3 above, Licensee may obtain from the trustee, pursuant to 11 U.S.C. §365(n)(3)(A), as amended, a copy of the source code to updates, patches and/or fixes to the deposited material (and any documentation relating to such source code) held by the trustee, if any, after Licensee (i) provides the trustee with a written request for a copy of any such source code or its related documentation, and (ii) provides SAP with written notice of Licensee’s request at least [ *87 ] before the trustee is required to comply with such request. Notwithstanding the foregoing, Licensee may only avail itself of 11 U.S.C. §365(n)(3)(A), as amended, if obtaining the subject source code or its related documentation thereunder either (i) does not interfere in any material fashion with the administration of the underlying bankruptcy proceedings, or (ii) is approved by order of the bankruptcy court having jurisdiction over the subject matter. 12.5 In no event shall Licensee have the right to access the applicable deposited materials if SAP America, Inc. or SAP AG perform agrees to assume SAP's ’s maintenance obligations under this Agreement. 5. 12.6 In the event of release under this Agreement, Licensee agrees that it will treat and preserve the deposited materials as a trade secret of SAP AG in accordance with the same precautions adopted by Licensee to safeguard its own trade secrets against unauthorized use and disclosure and in all cases at least with a reasonable degree of care. Release under this provision shall not extend Licensee any greater rights or lesser obligations than are otherwise provided or Imposed imposed under this Agreement. This provision shall survive any termination of this Agreement.

Escrow of Source Code. 1. SAP warrants that the source code for those portions of the Software, together with related Documentation not otherwise delivered as it is or becomes availablesource code,, has been or shall be deposited in an escrow account maintained at Data Securities International Inc.DSI Technology Escrow Services, Inc. Burlington, MA (the "Escrow Agent"), pursuant to an agreement between the Escrow Agent and SAP SAP, (the "Escrow Agreement"). 2. SAP will from time to time deposit into the escrow account copies of source code for Releases and Versions of the Software and related DocumentationSoftware. 3. SAP or SAP's trustee in bankruptcy shall authorize the Escrow Agent to make and release a copy of the applicable deposited materials to Licensee upon the occurrence of any of the following events: (a) The existence of any one or more of the following circumstances, uncorrected for more than thirty (30) days: entry of an order for relief under Title 11 of the United States Code; the making by SAP of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of SAP's business or property; or action by SAP under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation; unless within the specified thirty (30) day period, SAP (including its receiver or trustee in bankruptcy) provides to Licensee adequate assurances, reasonably acceptable to Licensee, of its continuing ability and willingness to fulfill its maintenance obligations under this Agreement; (b) SAP has ceased its on-going business operations or that portion of its business operations relating to the sale, licensing and maintenance of the Software; or (c) Failure of SAP to carry out the material maintenance obligations, by termination of maintenance services by SAP or otherwise, obligations imposed on it pursuant to this Agreement after reasonable opportunity has been provided to SAP America, Inc. and SAP AG to perform such obligations. 4. In no event shall Licensee have the right to access the applicable deposited materials if SAP America, Inc. or SAP AG perform agrees to assume SAP's maintenance obligations under this Agreement. 5. In the event of release under this Agreement, Licensee agrees that it will treat and preserve the deposited materials as a trade secret of SAP AG in accordance with the same precautions adopted by Licensee to safeguard its own trade secrets against unauthorized use and disclosure and in all cases at least with a reasonable degree of care. Release under this provision shall not extend Licensee any greater rights or lesser obligations than are otherwise provided or Imposed imposed under this Agreement. This provision shall survive any termination of this Agreement. SAP America, Inc. (SAP) Warnaco Inc. (Licensee) By: /s/ Xxxxxx X. Xx Xxxx By: /s/ Xxx X. Xxxxxxxx Title: Vice President Title: Vice President, General Counsel and Secretary Date: 12/1/04 Date: 12/1/04 This Subsidiary Use Agreement is made effective as of the day of , 200 between SAP , Inc., a Delaware Corporation, with offices at 0000 Xxxx Xxxxxxx Xxxx, Newtown Square, PA 19073 ("SAP") and a corporation, with offices at ("Subsidiary"). 1. Subsidiary is entitled to have Named Users Use the Software on the Designated Unit(s) identified in the SAP , Inc./ Software End-User License Agreement ("Agreement"). 2. Subsidiary agrees to be abide by and be bound by all of the terms and conditions of the Agreement applicable to Subsidiary and applicable to Licensee. SAP may directly enforce all such terms and conditions against it directly. 3. Subsidiary agrees that it's right to Use SAP Software and receive Maintenance services shall be governed solely by the Agreement. In the event that the Agreement is terminated, this Subsidiary Use Agreement is terminated or if Subsidiary ceases to meet the definition of "Subsidiary" therein, Subsidiary agrees that all of its rights to the Software will cease effective as of the termination date.

Escrow of Source Code. 1. (a) SAP warrants that the source code for the Software, together with related Documentation as it is or becomes available, has been deposited in an escrow account maintained at Data Securities International Inc., Inc. Burlington, MA (the "“Escrow Agent"”), pursuant to an agreement between the Escrow Agent and SAP SAP, (the "“Escrow Agreement"”). 2. (b) SAP will from time to time deposit into the escrow account copies of source code for Releases and Versions of the Software and related Documentation. 3. (c) SAP or SAP's ’s trustee in bankruptcy shall authorize the Escrow Agent to make and release a copy of the applicable deposited materials to Licensee upon the occurrence of any of the following events: (ai) The existence of any one or more of the following circumstances, uncorrected for more than thirty (30) days: entry of an order for relief under Title 11 of the United States Code; the making by SAP of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of SAP's ’s business or property; or action by SAP under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation; unless within the specified thirty (30) day period, SAP (including its receiver or trustee in bankruptcy) provides to Licensee adequate assurances, reasonably acceptable to Licensee, of its continuing ability and willingness to fulfill its maintenance obligations under this Agreement; (bii) SAP has ceased its on-going business operations or that portion of its business operations relating to the sale, licensing and maintenance of the Software; or (ciii) Failure of SAP to carry out the material maintenance obligations, by termination of maintenance services by SAP or otherwise, obligations imposed on it pursuant to this Agreement after reasonable opportunity has been provided to SAP America, Inc. and SAP AG to perform such obligations. 4. (d) In no event shall Licensee have the right to access the applicable deposited materials if SAP America, Inc. or SAP AG perform agrees to assume SAP's ’s maintenance obligations under this Agreement. 5. (e) In the event of release under this Agreement, Licensee agrees that it will treat and preserve the deposited materials as a trade secret of SAP AG in accordance with the same precautions adopted by Licensee to safeguard its own trade secrets against unauthorized use and disclosure and in all cases at least with a reasonable degree of care. Release under this provision shall not extend Licensee any greater rights or lesser obligations than are otherwise provided or Imposed imposed under this Agreement. This provision shall survive any termination of this Agreement. SAP agrees not to change the Escrow Agent described herein without prior written notice to Licensee.