Common use of Source Code Escrow Clause in Contracts

Source Code Escrow. (a) At DIR’s request, Successful Respondent shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency, Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) At DIR’s request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful Respondent, for any Third Party Materials consisting of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Service Provider Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful RespondentService Provider; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent Service Provider customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent Service Provider shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Service Provider Owned Materials continuing to be routinely supported by Successful Respondent Service Provider comparable to that provided prior to such occurrence. If Successful Respondent Service Provider shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent Service Provider shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Service Provider Owned Materials were then no longer routinely supported by Successful Respondent. (c) Service Provider. At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful RespondentService Provider, for any Third Party Materials consisting of Software used by Successful Respondent Service Provider to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) COTS Third Party Materials. Any such escrow shall be governed by and subject to terms that are substantially in the terms and conditions appearing in form of the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow AgreementExhibit 26, as provided that if Service Provider, after exercising commercially reasonable efforts is unable to secure such terms and conditions, Service Provider will obtain DIR's approval to any material deviation from such terms and conditions may be modified by DIR and the escrow agentprior to such agreement. Unless approved by DIR, Successful Respondent Service Provider shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent Service Provider shall not be required to escrow third party COTS software, Successful Respondent Service Provider shall ensure that Successful Respondent Service Provider provides all licenses and other rights required by DIR (and its successors or designees) to perform Services under this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Service Provider Owned Materials consisting of Software that are provided to DIR in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful RespondentService Provider; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent Service Provider customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent Service Provider shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Service Provider Owned Materials continuing to be routinely supported by Successful Respondent Service Provider comparable to that provided prior to such occurrence. If Successful Respondent Service Provider shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent Service Provider shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Service Provider Owned Materials were then no longer routinely supported by Successful Respondent. (c) Service Provider. At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful RespondentService Provider, for any Third Party Materials consisting of Software used by Successful Respondent Service Provider to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) COTS Third Party Materials. Any such escrow shall be governed by and subject to terms that are substantially in the terms and conditions appearing in form of the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow AgreementExhibit 26, as provided that if Service Provider, after exercising commercially reasonable efforts is unable to secure such terms and conditions, Service Provider will obtain DIR's approval to any material deviation from such terms and conditions may be modified by DIR and the escrow agentprior to such agreement. Unless approved by DIR, Successful Respondent Service Provider shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent Service Provider shall not be required to escrow third party COTS software, Successful Respondent Service Provider shall ensure that Successful Respondent Service Provider provides all licenses and other rights required by DIR (and its successors or designees) to perform Services under this Agreement.

Source Code Escrow. (a) At DIR’s request12.1 During the term of this Agreement, Successful Respondent IMPAC shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any maintain a copy of the following circumstances: Source Code for the Products set forth in Appendix A and all documentation thereto (icollectively, the "Escrowed Materials") with ***, pursuant to the Source Code Escrow Agreement between IMPAC and Siemens entered into on or about December 5, 2000, as it may be modified to reflect the terms set forth in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) this Agreement. In the event of a conflict between the Source Code Escrow Agreement and this section 12, the Source Code Escrow Agreement shall govern. The Escrowed Materials shall be deemed Confidential Information and shall be subject to the confidentiality restrictions set forth in Section 14. IMPAC shall update the Escrowed Materials *** during the term of this Agreement. The escrow agreement shall continue until the expiration of the ***. Siemens shall bear all escrow fees incurred pursuant to this section. The parties acknowledge that the escrow agreement is an agreement supplementary to this Agreement, as provided under Section 365(n) of the Bankruptcy Code. 12.2 Escrowed Materials shall be released to Siemens upon the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvencythe following events (each, Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent.a "Release Condition"): (c) At DIR’s request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, 12.2.1 A proceeding relating to the extent available liquidation or insolvency of IMPAC is commenced and is not dismissed within *** of commencement; 12.2.2 During the term of the Agreement, IMPAC materially fails to Successful Respondentprovide support in accordance with subsection 9.1.2 within *** of receipt by IMPAC of Siemens' written notice of such a failure (which notice shall specify in detail the manner in which IMPAC is failing to provide this support); 12.2.3 During the term of the Agreement, for any Third Party Materials consisting of Software used by Successful Respondent IMPAC materially fails to provide support in accordance with subsection 9.1.3; or 12.2.4 During the Maintenance Period, IMPAC materially fails to perform the Servicesobligations set forth *** in which IMPAC is failing to perform). 12.3 Upon the release of the Escrowed Materials pursuant to a Release Condition set forth in subsection 12.2 above, Siemens shall have a non-exclusive, non-transferable right, subject to the restrictions set forth in this Agreement to use, modify, and make working copies of the Escrowed Materials for the sole purpose of supporting and *** Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. maintaining *** the Products (the "Escrow Support License"); provided, however, that the Escrow Support License for each Product shall automatically terminate at the end of the applicable Maintenance Period for each such Product. Upon the release of the Escrowed Materials pursuant to subsection 12.2.1, Siemens shall have a non-exclusive, non-transferable right, subject to the restrictions set forth in this obligation will not be applicable Agreement to Commercial Offuse, reproduce, sublicense, and distribute the Products to End-theUsers in object code form only (the "Escrow Distribution License"); provided, however, that (1) all such End-Shelf (COTS) Third Party Materials. Any such escrow User sublicenses shall be governed by subject to terms not less restrictive than those set forth in Exhibit B of this Agreement; (2) Siemens shall pay a royalty to IMPAC on each unit of Product reproduced and distributed to End-Users, which royalty shall be equivalent to IMPAC's then-current transfer price for each such Product as set forth in the then-current Exhibit A; and (3) the Escrow Distribution License shall terminate automatically upon the termination or expiration of the then-current term of the Agreement. In the event that the source code is released to Siemens pursuant to subsections 12.2.2, 12.2.3, or 12.2.4, and ***, Siemens shall have an Escrow Distribution License, subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agentset forth above. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software Except for the performance of the Services without obtaining sublicensing the right to use the source code for such softwareProducts to End-Users, other than COTS Third Party Materials as permitted Siemens shall have no right to sublicense any of the rights granted pursuant to this Section 12. Upon the cessation or cure of either of the Release Conditions specified in subsection 12.2 above, whether by escrow both the Escrow Support License and Escrow Distribution License (if any) shall terminate, and Siemens promptly return all copies of the Escrowed Materials, or otherwise. While Successful Respondent shall not be required any portion thereof, to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement***.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency, 20.4. Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) . At DIR’s 's request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful Respondent, for any Third Party Materials consisting of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-the- Shelf (COTS) Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 C Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency, 20.4. Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) . At DIR’s 's request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful Respondent, for any Third Party Materials consisting of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-the- Shelf (COTS) Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 C Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement. Such escrow requirements shall be limited to Successful Respondent Owned Materials the source code for which has not been provided to DIR and which is necessary for DIR’s use of the Developed Materials or is included in the Developed Materials.

Source Code Escrow. (a) At DIR’s request, Successful Respondent shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency, Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) At DIR’s request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful Respondent, for any Third Party Materials consisting of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as MSA Attachment 3 Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful Respondent; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) . At DIR’s 's request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful Respondent, for any Third Party Materials consisting of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 C Form of Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other rights required under this Agreement.

Source Code Escrow. (a) At DIR’s TxDOT's request, Successful Respondent Service Provider shall deposit in escrow with an escrow agent selected by DIR TxDOT the source code and related documentation for Successful Respondent Service Provider Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful RespondentService Provider; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent Service Provider customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR TxDOT pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent Service Provider shall provide reasonable assurance to DIR TxDOT that such occurrence has not and shall not jeopardize Successful Respondent Service Provider Owned Materials continuing to be routinely supported by Successful Respondent Service Provider comparable to that provided prior to such occurrence. If Successful Respondent Service Provider shall be unable to comply with the foregoing to DIRTxDOT's reasonable satisfaction, Successful Respondent Service Provider shall, upon direction from DIRTxDOT, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Service Provider Owned Materials were then no longer routinely supported by Successful Respondent. (c) Service Provider. At DIR’s TxDOT's reasonable request, Successful Respondent Service Provider shall deposit in escrow, with an escrow agent selected by DIRTxDOT, the source code and related documentation, to the extent available to Successful RespondentService Provider, for any Third Party Materials consisting of Software used by Successful Respondent Service Provider to perform the Services; provided, however, that this obligation will shall not be applicable to Commercial Off-the-Shelf (COTS) COTS Third Party Materials. Any such escrow shall be governed by and subject to terms that are substantially in the terms and conditions appearing in form of the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow AgreementExhibit 25, as provided that if Service Provider, after exercising commercially reasonable efforts is unable to secure such terms and conditions, Service Provider shall obtain TxDOT's approval to any material deviation from such terms and conditions may be modified by DIR and the escrow agentprior to such agreement. Unless approved by DIRTxDOT, Successful Respondent Service Provider shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent Service Provider shall not be required to escrow third party COTS software, Successful Respondent Service Provider shall ensure that Successful Respondent provides provide all licenses and other rights to Software for which Service Provider is financially responsible pursuant to Attachment 4-C that is required by TxDOT (and its successors or designees) to perform Services under this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Service Provider Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful RespondentService Provider; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent Service Provider customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent Service Provider shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Service Provider Owned Materials continuing to be routinely supported by Successful Respondent Service Provider comparable to that provided prior to such occurrence. If Successful Respondent Service Provider shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent Service Provider shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Service Provider Owned Materials were then no longer routinely supported by Successful Respondent. (c) Service Provider. At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful RespondentService Provider, for any Third Party Materials consisting of Software used by Successful Respondent Service Provider to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) COTS Third Party Materials. Any such escrow shall be governed by and subject to the terms and conditions appearing in the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow AgreementExhibit 26, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent Service Provider shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent Service Provider shall not be required to escrow third party COTS software, Successful Respondent Service Provider shall ensure that Successful Respondent Service Provider provides all licenses and other rights required under this Agreement.

Source Code Escrow. (a) At DIR’s request, Successful Respondent 7.1 Licensor shall deposit place the Program Source Code Materials in escrow with an a mutually agreed upon United States based third party software escrow agent selected upon execution of this Agreement, in accordance with the escrow agent's standard agreement provisions as modified by DIR the terms of this Agreement. For the purpose of this provision the "Program Source Code Materials" shall mean the source code and related documentation for Successful Respondent Owned Materials consisting of Software in any of the following circumstances: (i) Program excluding any third party technology embedded, integrated, bundled or combined in or with the Program unless Licensor has the rights to provide the third party source code to Netegrity hereunder in which case the third party source code shall automatically be included in the case definition of the Program Source Code Materials. Licensor shall provide Netegrity with a list of any such Software that is no longer routinely supported by Successful Respondent; or (ii) and all third party technology embedded, integrated, bundled or combined with or in the case of any Program and shall use reasonable commercial efforts to enter into an agreement with such Software for which third parties to allow the third party source code is made available to other Successful Respondent customers (including through such be included in the Program Source Code Materials hereunder. All escrow arrangements). (b) In the event fees on an ongoing basis shall be paid by Netegrity. Licensor agrees it will promptly deposit a current copy of the occurrence Program Source Code Materials in escrow upon the commercial availability of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvencyeach release. Upon each deposit, Successful Respondent shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Owned Materials continuing to be routinely supported by Successful Respondent comparable to that provided prior to such occurrence. If Successful Respondent the escrow agent shall be unable required to comply with provide verification that the foregoing to DIR's reasonable satisfaction, Successful Respondent shall, upon direction from DIR, comply with the obligations of this Section as if such Successful Respondent Owned Materials were then no longer routinely supported by Successful Respondent. (c) At DIR’s request, Successful Respondent shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, deposited materials compile to the extent available to Successful Respondent, for any Third Party Materials consisting same version of Software used by Successful Respondent to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) Third Party MaterialsProgram provided hereunder. Any such escrow shall be governed by and subject Subject to the terms and conditions appearing in specified herein and effective upon the provisions of section 7.3 below becoming operative, Licensor grants and Netegrity accepts for the remainder of the initial term of this Agreement a non-exclusive, irrevocable, worldwide, nontransferable, limited license to use the Program Source Code Materials furnished to Netegrity under the Escrow Agreement attached hereto as Attachment 3 Form of Agreement. Under such license, Netegrity shall be permitted to enhance, improve, modify, translate, make derivative works of, test and develop the Program Source Code Escrow Agreement, as such terms and conditions may be modified by DIR and the escrow agent. Unless approved by DIR, Successful Respondent shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent shall not be required to escrow third party COTS software, Successful Respondent shall ensure that Successful Respondent provides all licenses and other exercise Netegrity's rights required under this Agreement, which shall include creating derivative works of the Program and Application Package which may be distributed in accordance with Section 2 of this Agreement.

Source Code Escrow. (a) At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow with an escrow agent selected by DIR the source code and related documentation for Successful Respondent Service Provider Owned Materials consisting of Software in any of the following circumstances: (i) in the case of any such Software that is no longer routinely supported by Successful RespondentService Provider or a Service Provider designee or subcontractor provided that if such support is provided by a Service Provider designee or subcontractor, such support is provided pursuant to a written agreement between Service Provider and such designee or subcontractor ; or (ii) in the case of any such Software for which source code is made available to other Successful Respondent Service Provider customers (including through such escrow arrangements). (b) . In the event of the occurrence of any event giving rise to termination of this Agreement by DIR pursuant to Section 13.4 Termination for Insolvency20.4, Successful Respondent Service Provider shall provide reasonable assurance to DIR that such occurrence has not and shall not jeopardize Successful Respondent Service Provider Owned Materials continuing to be routinely supported by Successful Respondent Service Provider comparable to that provided prior to such occurrence. If Successful Respondent Service Provider shall be unable to comply with the foregoing to DIR's reasonable satisfaction, Successful Respondent Service Provider shall, upon direction from DIR, comply with the obligations of this Section 14.3(e) as if such Successful Respondent Service Provider Owned Materials were then no longer routinely supported by Successful Respondent. (c) Service Provider. At DIR’s 's request, Successful Respondent Service Provider shall deposit in escrow, with an escrow agent selected by DIR, the source code and related documentation, to the extent available to Successful RespondentService Provider, for any Third Party Materials consisting of Software used by Successful Respondent Service Provider to perform the Services; provided, however, that this obligation will not be applicable to Commercial Off-the-Shelf (COTS) COTS Third Party Materials. The escrow agent selected by DIR will, in DIR's reasonable judgment, be a reputable provider of such source code escrow services. Any such escrow shall be governed by and subject to terms that are substantially in the terms and conditions appearing in form of the Escrow Agreement attached hereto as Attachment 3 Form of Source Code Escrow AgreementExhibit 26, as provided that if Service Provider, after exercising commercially reasonable efforts is unable to secure such terms and conditions, Service Provider will obtain DIR's approval to any material deviation from such terms and conditions may be modified by DIR and the escrow agentprior to such agreement. Unless approved by DIR, Successful Respondent Service Provider shall not use any Third Party Materials consisting of Software for the performance of the Services without obtaining the right to the source code for such software, other than COTS Third Party Materials as permitted above, whether by escrow or otherwise. While Successful Respondent Service Provider shall not be required to escrow third party COTS software, Successful Respondent Service Provider shall ensure that Successful Respondent Service Provider provides all licenses and other rights required by DIR (and its successors or designees) to perform Services under this Agreement. With respect to the NearStar product more particularly described in Exhibit 18 (the "NearStar Product"), Service Provider has an existing source code escrow arrangement for such product. Service Provider represents and warrants that such source code escrow arrangement substantially complies with the terms and conditions set forth in Exhibit 26. Based on such representation and warranty, DIR agrees that Service Provider shall not be required to set up a separate escrow arrangement for the NearStar product provided that DIR will be entitled to exercise all necessary rights with respect to such source code escrow arrangement as set forth in the Agreement, including Exhibit 26.