Common use of Source Code Escrow Agreement Clause in Contracts

Source Code Escrow Agreement. Seller shall at all times keep and maintain a complete master, reproducible copy of all Source Code of all Seller Software installed at the Worksite in escrow in accordance with the terms and conditions of the Escrow Agreement attached hereto as Exhibit A (the "Escrow Agreement") and which agreement is hereby made part of this Sales Agreement, being incorporated herein by this reference. Seller will promptly update the Source Code in escrow to reflect all Upgrades installed at the Worksite. In the event that (i) a Major Failure occurs (as defined under Article 17 b)) related to Seller Software and Seller fails to respond to and perform its warranty or maintenance obligations under this Sales Agreement, or Seller (or any Seller Affiliate, if applicable) fails to respond to and perform its obligations under any Maintenance or Software Support Agreement, in each case in connection with the occurrence of such Major Failure, and Seller does not cure such failure to respond and perform within five (5) business days after written notice thereof from Purchaser, (ii) Seller fails to offer maintenance or software support services to Purchaser as reasonably required by Purchaser for it to continue its use of the Equipment as contemplated by this Sales Agreement and on terms no less favorable than those offered to Seller's similarly situated customers for similar services, (iii) this Sales Agreement is terminated by Purchaser pursuant to Article 16(a)(1), or (iv) Seller (1) becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, (2) has a receiver or trustee in bankruptcy is appointed for it, or (3) has any proceeding in bankruptcy, receivership or liquidation instituted against it which is not dismissed within thirty (30) days following the commencement thereof, Purchaser shall be entitled to the Source Code as provided for in the Escrow Agreement. Seller hereby grants to Purchaser, effective upon the occurrence of any of the events set forth in any of the clauses (i) through (iv) of the immediately preceding paragraph, a perpetual, non-exclusive, right and license to (a) use, copy, modify, adapt and create derivative works of the Source Code, and (b) decompile, reverse engineer or disassemble any Seller Software or modify, adapt or create derivative works of Seller Software or its documentation, in each case solely in connection with Purchaser's and its Affiliates' and their respective contractors' use, maintenance and support of the Software in accordance with their respective rights under this Sales Agreement. Notwithstanding each of the clauses (a) and (b) above, the Source Code referred to above is hereby deemed to be Seller Software for purposes of Purchaser's continued compliance with the terms of Articles 12 b) (except that Purchaser's rights under clauses (a) and (b) above may be performed in its test and development areas and equipment for the purposes set forth in this paragraph), 12 f) and 12 i) hereof.

Source Code Escrow Agreement. Seller shall at all times keep and maintain a complete master, reproducible copy of all Source Code of all Seller Software installed at the Worksite in escrow in accordance with the terms and conditions of the Escrow Agreement attached hereto as Exhibit A (the "Escrow Agreement") and which agreement is hereby made part of this Sales Agreement, being incorporated herein by this reference. Seller will promptly update the Source Code in escrow to reflect all Upgrades installed at the Worksite. In the event that (i) a Major Failure occurs (as defined under Article 17 b)) related to Seller Software and Seller fails to respond to and perform its warranty or maintenance obligations under this Sales Agreement, or Seller (or any Seller Affiliate, if applicable) fails to respond to and perform its obligations under any Maintenance or Software Support Agreement, in each case in connection with the occurrence of such Major Failure, and Seller does not cure such failure to respond and perform within five (5) business days after written notice thereof from Purchaser, (ii) Seller fails to offer maintenance or software support services to Purchaser as reasonably required by Purchaser for it to continue its use of the Equipment as contemplated by this Sales Agreement and on terms no less favorable than those offered to Seller's similarly situated customers for similar services, (iii) this Sales Agreement is terminated by Purchaser pursuant to Article 16(a)(1), or (iv) Seller (1) becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, (2) has a receiver or trustee in bankruptcy is appointed for it, or (3) has any proceeding in bankruptcy, receivership or liquidation instituted against it which is not dismissed within thirty (30) days following the commencement thereof, Purchaser shall be entitled to the Source Code as provided for in the Escrow Agreement. Seller hereby grants to Purchaser, effective upon the occurrence of any of the events set forth in any of the clauses (i) through (iv) of the immediately preceding paragraph, a perpetual, non-exclusive, right and license to (a) use, copy, modify, adapt and create derivative works of the Source Code, and (b) decompile, reverse engineer or disassemble any Seller Software or modify, adapt or create derivative works of Seller Software or its documentation, in each case solely in connection with Purchaser's and its Affiliates' and their respective contractors' use, maintenance and support of the Software in accordance with their respective rights under this Sales Agreement. Notwithstanding each of the clauses (a) and (b) above, the Source Code referred to above is hereby deemed to be Seller Software for purposes of Purchaser's continued compliance with the terms of Articles 12 b) (except that Purchaser's rights under clauses (a) and (b) above may be performed in its test and development areas and equipment for the purposes set forth in this paragraph), 12 f) and 12 i) hereof. Any Source Code delivered under this Article will be provided on an "as is" basis, without any representation, warranty or liability of Seller whatsoever, except that Seller hereby represents and warrants to Purchaser that the Source Code in Escrow at all times is the Source Code of the latest version of the Seller Software (including all Upgrades) installed at the Worksite. Further, Seller disclaims any representations, warranties or liabilities relating to modifications to, or adaptations or derivative works of, the Source Code, Software or its documentation created by or for Purchaser and/or its Affiliates pursuant to the immediately preceding paragraph; provided, however, that nothing in this paragraph will limit any of Seller's representations or warranties under this Sales Agreement with respect to the unmodified Software or its documentation.