Exhibit 10.07
EXECUTION COPY
AGREEMENT NO. HA-011010
ISECURETRAC(TM) CORP.
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
HOSTING SERVICES AGREEMENT
THIS AGREEMENT is effective as of the ____ day of ___________, 2001
(the "Effective Date"), by and between iSecureTrac Corp., a Delaware
corporation, ("iSecureTrac") and ADT Security Services, Inc., a Delaware
corporation with its headquarters at Xxx Xxxx Xxxxxx Xxxx., X.X. Xxx 0000, Xxxx
Xxxxx, XX 00000-0000, successor in interest to SecurityLink, Inc., an Illinois
Corporation ("DISTRIBUTOR").
Concurrently with the execution of this Agreement, iSecureTrac and
DISTRIBUTOR shall enter into an Exclusive Product Purchase and Distribution
Agreement of even date herewith (the "Distribution Agreement"), pursuant to
which iSecureTrac shall manufacture and sell the iTracker Personal Tracker Units
described therein ("iTracker-ET PTUs") to and for DISTRIBUTOR on an exclusive
basis for distribution and resale by DISTRIBUTOR to its "End Users" and "Service
Providers" (each as defined and authorized in the Distribution Agreement and
collectively referred to herein as "Customer(s)").
DISTRIBUTOR desires to acquire the "Hosting Services" and "Support
Services" defined and provided in this Agreement (collectively, "Services") from
iSecureTrac, and iSecureTrac desires to provide and perform such Services to and
for DISTRIBUTOR hereunder.
NOW THEREFORE, iSecureTrac and DISTRIBUTOR agree as follows:
1.0 DEFINITIONS
1.1. "Active GPS Tracking" shall mean on-line access and use of the
Application pursuant to the Hosting Services to acquire,
perform, and use the services, functions, features, and
capabilities described on Attachment 1 as comprising "Active
GPS Tracking."
1.2. "Application" shall mean a standalone computer software
program developed by iSecureTrac that: (i) monitors and tracks
the movement of iTracker-ET PTUs, including, but not limited
to, each violation specified by DISTRIBUTOR for each
iTracker-ET PTU ("Violation(s)"), (ii) records, reports, and
archives data regarding, evidencing, and/or generated by the
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movement, timing, operation, Violation(s), and/or monitoring
of or involving iTracker-ET PTUs (collectively, "Movement
Data"), and (iii) provides, performs, and supports all
Application Functions and real-time and archival alert
monitoring, movement mapping, creation and modification of
"inclusion" and "exclusion" zones - geographical boundaries
where the wearer ("Wearer(s)") of an iTracker-ET PTU (an
"iTracker Bracelet") must be present at certain times
("Inclusion Zones") or from which the Wearer has been excluded
("Exclusion Zones") by appropriate authorities, archiving and
reporting of Movement Data for each Violation (including,
without limitation, each Violation of an Inclusion Zone or
Exclusion Zone by the Wearer (each, a "Zone Violation")), and
secured logons. The Application shall further mean and
incorporate access to and use of all of the features,
capabilities, and functionality described in the immediately
preceding sentence, but shall not include the use, access to,
or any rights to the specific software code, whether source
code or object code, which comprise the Application software.
1.3. "Application Function(s)" shall mean Active GPS Tracking,
Passive GPS Tracking, Data Warehousing, Automatic Tracking
Data Delivery, and/or Archival Data Delivery, each as defined
in this Section 1.
1.4. "Archival Data Delivery" shall mean on-line access and use of
the Application pursuant to the Hosting Services to acquire,
perform, and use the services, functions, features, and
capabilities described on Attachment 1 as comprising "Archival
Data Delivery."
1.5. "Automatic Tracking Data Delivery" shall mean on-line access
and use of the Application pursuant to the Hosting Services to
acquire, perform, and use the services, functions, features,
and capabilities described on Attachment 1 as comprising
"Automatic Tracking Data Delivery."
1.6. "Data Warehousing" shall mean on-line access and use of the
Application pursuant to the Hosting Services to acquire,
perform, and use the services, functions, features, and
capabilities described on Attachment 1 as comprising "Data
Warehousing."
1.7. "Hosting Services" shall mean (i) hosting, maintaining, and
operating the Application on iSecureTrac's own computer
servers ("Server(s)") and web site (the "Web Site"), and (ii)
providing DISTRIBUTOR with on-line, real time access and use
of the Application (including, but not limited to, all
Application Functions) on iSecureTrac's Servers and Web Site
via the Internet on a continuous, 24 hour per day x 7 day per
week x 365 day per year basis ("24x7x365") (except for the
service interruptions permitted by Section 4.2 of this
Agreement) so as to enable DISTRIBUTOR to provide, perform,
and support Monitoring Services to and for its Customers with
respect to each "Activated iTracker Unit" throughout its full
"Activation Term" as further
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defined, provided, and described in the Agreement.
1.8. "Monitoring Services" shall mean the electronic tracking of
iSecureTrac-ET PTUs, and the recording, reporting, and
archiving of Movement Data for each iSecureTrac-ET PTUs.
1.9. "Passive GPS Tracking" shall mean on-line access and use of
the Application pursuant to the Hosting Services to acquire,
perform, and use the services, functions, features, and
capabilities described on Attachment 1 as comprising "Passive
GPS Tracking."
1.10. "Purchase Order" shall mean the written or electronic purchase
orders duly issued by DISTRIBUTOR to iSecureTrac to purchase
certain Services hereunder.
1.11. "Support Services" shall mean the services described in
Attachment 2.
1.12. "Tracking" shall mean on-line access and use of the
Application pursuant to the Hosting Services to acquire,
perform, and use Active GPS Tracking or Passive GPS Tracking
on or for any iSecureTrac Tracker Unit, as electronically
designated by DISTRIBUTOR in the Application.
1.13. All capitalized terms used but not defined herein shall have
the meanings ascribed thereto in the Distribution Agreement.
1.14. This Agreement consists of the terms and conditions stated
herein and in the following Attachments, both of which are
incorporated herein by reference:
(a) Attachment 1: Hosting Fees
(b) Attachment 2: Support Services
(c) Attachment 3: Source Code Escrow Agreement
2.0 HOSTING SERVICES
2.1. GENERAL. iSecureTrac shall perform and provide DISTRIBUTOR
with the Hosting Services during the "Term" (as defined
herein) of this Agreement at and for the "Hosting Fees"
specified on Attachment "1" (as such fees may be adjusted for
"Authorized Price Changes" hereunder, "Hosting Fee(s)").
2.2. ACTIVATION; DEACTIVATION. DISTRIBUTOR may initiate Tracking of
any iTracker-ET PTU at any time (and from time-to-time) during
the Term in its sole discretion ("Activate") by electronically
registering and activating such iTracker-ET PTU for such
Active GPS Tracking or Passive GPS Tracking in the Application
("Activation"). DISTRIBUTOR may terminate Tracking of any
Activated iTracker Unit at any time (and from time-to-time)
during the
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Term in its sole discretion ("Deactivate") by electronically
deactivating such Activated iTracker Unit in the Application
("Deactivation"). DISTRIBUTOR may begin and continue to access
and use the Application to acquire, use, and perform Tracking
of and for any iSecureTrac-ET PTU from the date that
DISTRIBUTOR electronically Activates such iSecureTrac-ET PTU
for Tracking in the Application (each an "Activation Date")
through and including such time as DISTRIBUTOR electronically
Deactivates such iTracker Unit in the Application
("Deactivation Date") as described above (the "Activation
Term"). An iSecureTrac-ET PTU electronically Activated by
DISTRIBUTOR hereunder shall be an "Activated iTracker Unit"
and have "Active Status" hereunder at all times during its
Activation Term, that is, until its Deactivation Date, even if
such Activation Term and Deactivation Date occur and extend
after the effective date of any Agreement Termination
("Termination Date"). During its Activation Term (and until
its Deactivation Date), an Activated iTracker Unit shall be
(i) an "Active iTracker Unit" hereunder if electronically
registered and Activated for Active GPS Tracking in the
Application, and (ii) a "Passive iTracker Unit" hereunder if
electronically registered and Activated for Passive GPS
Tracking in the Application. The Activation Term, Active
Status, and Hosting Fees for and of any Activated iTracker
Unit shall automatically terminate and cease upon its
Deactivation, effective as of its Deactivation Date. In
addition, on and after its Deactivation Date, an
iSecureTrac-ET PTU shall no longer be an Activated iTracker
Unit, Active iTracker Unit, or Passive iTracker Unit for any
purpose hereunder.
2.3. APPLICATION. Throughout the Term, the Application shall: (i)
be compatible with all iSecureTrac-ET PTUs; (ii) permit and
accommodate concurrent Tracking of all Activated iTracker
Units by an unlimited number of remote users without
degradation of the functionality or performance of the
Application; (iii) be accessible and useable on the Web Site
using a standard Microsoft Explorer browser ("Browser") and
any type of connectivity to the Servers, including, but not
limited to, via a modem or shared or dedicated cable line; and
(iv) provide and perform all Application Functions to and for
DISTRIBUTOR as provided herein on an independent, standalone
basis, without the use or need of any other software (except
for the Browser software).
2.4. SECURITY. During the Term, iSecureTrac shall adopt, implement,
maintain, and upgrade commercially reasonable security
measures and procedures (including, but not limited to,
alarms, firewalls, passwords, encryption, access and use of
adequate back-up computer servers, and periodic back-up of
data) on a continuing, ongoing basis to deter, protect
against, and prevent: (i) the loss, theft, destruction,
corruption, interception, and unauthorized use, disclosure, or
access of or to any Movement Data while archived on the
Servers and during transmission hereunder, and (ii) the
interruption of
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Hosting Services.
2.5. SOURCE CODE ESCROW. iSecureTrac agrees to place and maintain
in escrow, on an ongoing basis, commented source code for the
Application, together with all compiling and linking
information and related documentation (collectively, "Software
Escrow Materials"), upon the terms and conditions set forth in
the Escrow Agreement in Attachment 3 (the "Source Code Escrow
Agreement"). iSecureTrac shall, within sixty (60) days of the
release of any modification, update, upgrade, revision, new
release, or new version of the Application, deposit updated
Software Escrow Materials into escrow with the escrow agent
under the Source Code Escrow Agreement (the "Escrow Agent") to
reflect such modifications, revisions, updates, upgrades, new
releases, and/or new versions of the Software. Upon the
occurrence of any condition triggering release of the Source
Code Escrow Materials to DISTRIBUTOR under the Source Code
Escrow Agreement (each a "Release Condition"), DISTRIBUTOR
shall have, and iSecureTrac hereby grants to DISTRIBUTOR, a
non-exclusive, royalty free, fully paid, irrevocable,
perpetual license in the Software Escrow Materials and all
Intellectual Property Rights therein to use, copy, modify,
enhance, and create derivative works from the Software Escrow
Materials to provide, perform, and/or support Maintenance
Services to and for its Customers, through the services of
DISTRIBUTOR's own employees and/or its independent
contractors. Upon the occurrence of any Release Condition,
DISTRIBUTOR shall have the right and option to obtain the
Software Escrow Materials from the Escrow Agent under the
Source Code Escrow Agreement or directly from iSecureTrac.
3.0 SUPPORT SERVICES
During the Term, iSecureTrac shall provide DISTRIBUTOR with such
Support Services as DISTRIBUTOR may order in its sole discretion from time to
time in its Purchase Orders as provided herein. Purchase Orders for Support
Services shall be placed with iSecureTrac at least thirty (30) days prior to the
date requested for the delivery of such services.
4.0 APPLICATION CAPACITY AND AVAILABILITY
4.1. CAPACITY. Throughout the Term, iSecureTrac shall maintain
sufficient Application capacity for DISTRIBUTOR to acquire and
use the volume of Hosting Services necessary to provide
Monitoring Services to its Customers for each Activated
iTracker Unit.
4.2. AVAILABILITY. iSecureTrac shall provide DISTRIBUTOR with
continuous, uninterrupted access and use of and to the
Application (and all Application Functions) for all Activated
iTracker Units on a 24x7x365 basis at all times during the
Term as provided herein ("Uptime"), except as follows
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(collectively, "Authorized Downtime"):
(a) Scheduled downtime not to exceed one (1) hour per
calendar month of the Term scheduled at such times
which, in the opinion of iSecureTrac, is the most
convenient for all iSecureTrac customers, for the
purpose of software maintenance or installation of
new releases or versions of Application software
("Authorized Scheduled Downtime"). iSecureTrac shall
provide DISTRIBUTOR with 72 hours prior written
notice of each instance of such Authorized Scheduled
Downtime.
(b) Downtime of up to one-tenth of one percent (.1%) of
total Uptime measured on a monthly basis resulting
from outages at the co-location facility housing the
Servers ("Authorized Service Interruption Downtime").
(c) Downtime caused by any "Force Majeure Event" as
defined in Section 17.1 ("Force Majeure Downtime").
In such event, iSecureTrac shall take all proper and
reasonable steps to restore full access and use of
the Application (and all Application Functions) to
DISTRIBUTOR as soon as possible.
4.3. ABATEMENT OF HOSTING FEES. After two (2) hours of downtime,
Hosting Fees on each Activated iTracker Unit shall xxxxx on a
pro-rata basis for any Force Majeure Downtime and any downtime
other than (or in excess of) Authorized Scheduled Downtime or
Authorized Service Interruption Downtime. Such abatement shall
be in addition to all of DISTRIBUTOR's other rights and
remedies hereunder, at law, or in equity.
5.0 CONFIDENTIALITY AND DATA OWNERSHIP
5.1. CONFIDENTIALITY. In connection with this Agreement, each party
and its affiliates may disclose (the "Disclosing Party") its
Confidential Information to the other party (the "Receiving
Party"), and the Receiving Party may otherwise obtain or learn
the Disclosing Party's Confidential Information. The Receiving
Party shall: (i) hold and protect the Disclosing Party's
Confidential Information in the strictest confidence, using
the same degree of care (but at least reasonable care) that it
uses to protect its own confidential or proprietary
information of a similar character; (ii) not directly or
indirectly disclose any of the Disclosing Party's Confidential
Information to any third party; (iii) disclose the Disclosing
Party's Confidential Information only to the Receiving Party's
own employees on a "need to know" basis; (iv) use the
Disclosing Party's Confidential Information only during the
Term of this Agreement and solely to perform the Receiving
Party's obligations and rights hereunder, and for no other
purpose, and (v) discontinue all use of, and
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return to the Disclosing Party (or in lieu of such return,
destroy), all of the Disclosing Party's Confidential
Information upon the earlier of (A) the Disclosing Party's
request, or (B) the Termination Date. The Disclosing Party
shall be and at all times remain the sole and exclusive owner
of all of its Confidential Information and all Intellectual
Property Rights therein, and the Receiving Party shall not
have or acquire any right, title, or interest in or to any of
the Disclosing Party's Confidential Information or any
Intellectual Property Rights therein under this Agreement, by
virtue of the Receiving Party's acquisition or use of the
Disclosing Party's Confidential Information, or otherwise.
"Confidential Information" shall be deemed to include all
copies, extracts, excerpts, abstracts, and summaries
containing any Confidential Information prepared by either
party in any medium. Notwithstanding the foregoing,
"Confidential Information" shall not include, and this Section
5.1 shall not apply to, any information that: (1) is at the
time of disclosure, or subsequently becomes, part of the
public domain through no act or failure to act on the part of
the Receiving Party, (2) was already known or possessed by the
Receiving Party with no obligation of confidentiality at the
time of the disclosure of such information by the Disclosing
Party, (3) is furnished to the Receiving Party by a third
party source, provided that such third party source is not
known by the Receiving Party to be prohibited from disclosing
such information by a contractual, legal, or fiduciary
obligation owed to the Disclosing Party, (4) is independently
developed by the Receiving Party without reference to or use
of any of the Disclosing Party's Confidential Information, or
(5) whose disclosure is sought by subpoena, litigation
discovery device, or other legal process or is otherwise
required by law.
5.2. OWNERSHIP. All Movement Data, including, but not limited to,
all data evidencing or pertaining to any Violation
(collectively, "Violation Data"), including, but not limited
to, any Zone Violation, shall constitute DISTRIBUTOR's
Confidential Information under Section 5.1. DISTRIBUTOR shall
own all rights in and to all Movement Data as further provided
in Section 5.1. Subject to the terms and conditions contained
herein, and except as may otherwise be limited, revoked, or
prohibited by DISTRIBUTOR in writing in its sole discretion
from time to time, DISTRIBUTOR hereby grants iSecureTrac a
non-exclusive, personal, limited, non-transferable (with no
right of assignment or sublicense) license to use the Movement
Data during the Term for the purpose of analyzing and
reporting only general historical trends and summaries in the
ordinary course of its business and for no other purpose,
provided, however, that (i) such Movement Data is disclosed
and reported only in aggregate form such that no Wearer,
Customer, iTracker-ET PTU, or source of such Movement Data is,
directly or indirectly, identified or identifiable, explicitly
or implicitly, and (ii) no specifically identifiable Movement
Data is disclosed for any particular iTracker-ET PTU.
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6.0 DATA WAREHOUSING AND ARCHIVAL DATA DELIVERY
As part of Tracking, the Application shall record, store on the
Servers, and provide on-line access to all Movement Data (including, but not
limited to, Violation Data) for each Activated iTracker Unit (collectively,
"Data Archiving") for a period of sixty (60) days after its recording date
("Base Archiving"). The charge for all Base Archiving is included in and covered
by the "Daily Hosting Fee" (as defined herein) for each Activated iTracker Unit.
DISTRIBUTOR may, in its sole discretion, extend Data Archiving for any Activated
iTracker Unit for periods beyond sixty (60) days for the Hosting Fee specified
for Data Warehousing on Attachment 1 (as such fee may be adjusted by Authorized
Price Changes hereunder, the "Data Warehousing Fee") by issuing a Purchase Order
authorizing the performance of such Data Warehousing. In addition, upon receipt
of a Purchase Order from DISTRIBUTOR authorizing Archival Data Delivery for any
Activated iTracker Unit(s), iSecureTrac will, for the applicable Hosting Fee
specified on Attachment 1 (as such fee may be adjusted by Authorized Price
Changes hereunder, the "Data Delivery Fee"), store Movement Data generated by
and for each such Activated iTracker Unit on a separate compact disk ("CD(s)")
and ship each such CD to DISTRIBUTOR. DISTRIBUTOR may terminate Data Warehousing
and Archival Data Delivery for any Activated iTracker Unit at any time during
the Term in its sole discretion upon thirty (30) days prior written notice to
iSecureTrac, and Data Warehousing and Archival Data Delivery shall, in all
events, automatically terminate for each Activated iTracker Unit on its
Deactivation Date. In addition, as soon as possible after the Effective Date,
iSecureTrac shall enhance the Application at its own cost and expense so as to
incorporate and perform Automatic Tracking Data Delivery as an additional,
integrated Application Function and provide DISTRIBUTOR with on-line access and
use of same free of charge for each Activated iTracker Unit as part of the
Hosting Services.
7.0 PRICE PROTECTION
iSecureTrac hereby agrees that the that it shall not change any fees
or prices charged for any Services (collectively, "Fees"), including any
Hosting Fees or Support Fees, from the amounts listed in any Attachment
hereto (collectively, "Fees") for a period of [confidential treatment request]
from the Effective Date of this Agreement. Thereafter, iSecureTrac may
prospectively change the Fees once per year by up to [confidential treatment
requested], effective on each successive, annual anniversary of the Effective
Date (each, an "Anniversary Date"), by giving DISTRIBUTOR ninety (90) days
prior written notice to DISTRIBUTOR of such change prior to such Anniversary
Date ("Price Changes"). Each Price Change authorized hereunder ("Authorized
Price Change(s)") shall be deemed incorporated into this Agreement and shall
replace the Fees listed in this Agreement on a going forward basis as
provided herein. Fees shall not increase during the Term except by way of
Authorized Price Changes implemented in accordance with this Section 7.0.
8.0 PURCHASE ORDERS
DISTRIBUTOR may, in its sole discretion, access and use the Application
to acquire and perform Tracking of any Activated iTracker Unit(s) at any time
during the Term by electronic Activation thereof in accordance with Section 2.2,
and no Purchase Order or other notice shall be necessary therefor. DISTRIBUTOR
may order Data Warehousing, Archive Data Delivery, and
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Support Services (collectively, "PO Services") only through applicable Purchase
Orders placed by DISTRIBUTOR with iSecureTrac. Purchase Orders shall state
quantity, price and performance dates as appropriate, and SERVICE PROVIDER shall
place said Purchase Orders with iSecureTrac with any lead times required by
iSecureTrac hereunder. In the event any terms are listed on Purchase Orders
which are inconsistent with the terms of this Agreement, this Agreement shall
govern any such inconsistency.
9.0 CHARGES AND PAYMENTS
9.1. HOSTING FEES. iSecureTrac shall provide, perform, and sell the
Hosting Services to DISTRIBUTOR during the Term at and for the
applicable Hosting Fee hereunder. The daily Hosting Fee for
Tracking specified on Attachment 1 ("Daily Hosting Fee") shall
accrue for each Activated iTracker Unit during each day of its
Activation Term, and shall cease upon its Deactivation Date.
No Hosting Fees shall accrue or be due hereunder (i) for any
period before or after the Activation Term of any Activated
iTracker Unit, or (ii) for any iSecureTrac-ET PTU not having
Active Status. The Hosting Fees are all-inclusive and
constitute payment in full (and iSecureTrac's sole and
exclusive compensation) for the Hosting Services.
9.2. INVOICING. iSecureTrac shall issue a separate monthly
"Invoice" (as defined herein) for each Activated iTracker
Unit during each month of its Activation Term, billing
DISTRIBUTOR in arrears for the Services performed and
completed by iSecureTrac hereunder with respect to such
Activated iTracker Unit during the immediately preceding
month of its Activation Term. The Fees due hereunder for
such performed Services shall be payable net
[confidential treatment requested] from DISTRIBUTOR's
receipt of iSecureTrac's Invoice therefor at the address
provided in this Section 9.2. Each invoice for each
Activated iTracker Unit shall be in writing and shall
contain the following information ("Invoice(s)"): (i) the
identity of the Activated iTracker Unit; (ii) the type of
Services performed for such Activated iTracker Unit
("Invoiced Services"); (iii) the date(s) on which such
Invoiced Services were performed; (iv) the Purchase Order
number (if applicable); (v) the Fees for each Invoiced
Service; and (vi) any applicable taxes and discounts
hereunder. All Invoices for PO Services shall be delivered
to DISTRIBUTOR at the "Xxxx To" address shown on the face
of DISTRIBUTOR's Purchase Order, and all Invoices for other
Services shall be delivered to DISTRIBUTOR at the following
address:
SecurityLink/ADT Security Services, Inc.
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xx Xxxxx
9.3. TAXES. Fees are exclusive of all taxes however designated.
DISTRIBUTOR shall be responsible for the payment of only all
applicable sales and/or use
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taxes assessed and measured directly by and upon the Fees paid
for its purchases of Services hereunder.
10.0 TERM AND TERMINATION
10.1. TERM. The initial term of this Agreement shall be three (3)
years from the Effective Date first written above, unless
terminated earlier as provided herein (the "Initial Term"). At
the end of the three (3) year Initial Term, this Agreement
shall automatically renew on the terms and conditions
contained herein for up to two (2) additional, consecutive one
(1) year periods upon the Anniversary Date of the Initial Term
and the first annual extension thereof (each, a "Renewal
Term"), unless either party terminates the Agreement, for any
reason, upon 90 days written notice to the other party. The
"Term" of this Agreement shall consist of the Initial Term,
any Renewal Term, and any "Extension Term" (defined and
provided below), taken together.
10.2. CONTINUED SERVICES. Notwithstanding any Agreement Termination,
this Agreement shall not expire or terminate (and shall
continue in full force and effect in accordance with its
terms) after its Termination Date with respect to each
Activated iTracker Unit having Active Status on such
Termination Date ("Surviving iTracker Units"), but only for so
long as such Surviving iTracker Unit retains such Active
Status (i.e., until it is Deactivated by DISTRIBUTOR)
("Extension Term"). DISTRIBUTOR may, in its sole discretion,
continue to purchase the Services from iSecureTrac hereunder
(and iSecureTrac shall continue to make available, sell, and
perform such Services to DISTRIBUTOR as provided herein) after
any Termination Date for each Surviving iTracker Unit until
its Deactivation Date, even if such Deactivation Date and its
Activation Term extends beyond the Termination Date
("Continued Services"). All Continued Services and Surviving
iTracker Units shall be "Services" and "Activated iTracker
Units" hereunder and shall be subject to all of the terms and
conditions of this Agreement applicable thereto, including the
Deactivation rights contained herein. The terms of this
Section 10.2 shall supersede any contrary provision contained
in this Agreement.
10.3. TERMINATION FOR CAUSE. Either party may terminate this
Agreement at any time upon the occurrence of any of the
following events by or involving the other party ("Termination
for Cause"):
(a) The other party liquidates or ceases to conduct
business in the normal course, or makes a general
assignment of assets for the benefit of creditors.
(b) The other party is in material default of any of its
material obligations under this Agreement, and such
material default is not cured within
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thirty (30) days from the date on which it was
notified in writing of such default by the other
party, unless subsequently waived in writing.
10.4. TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement without cause at any time during the Term on ninety
(90) days prior written notice to the other party hereto
("Termination for Convenience").
10.5. SURVIVAL. Sections 5, 10.2, 12, 13, 15, and 16, and all other
provisions hereof that would by their very nature or terms
survive this Agreement, shall survive any Agreement
Termination. In addition, Services shall continue to be
provided and performed to and for DISTRIBUTOR hereunder after
any Agreement Termination so long as any iTracker-ET PTU
remains in Activated Status in accordance with Section 10.2.
11.0 INDEPENDENT CONTRACTORS
Nothing in this Agreement shall be construed as creating any agency,
legal representation, partnership, joint venture, or any other relationship
between the parties other than being separate entities which remain independent
contractors.
12.0 INDEMNIFICATION AND INSURANCE
12.1. SCOPE. iSecureTrac will defend, indemnify, and hold the
DISTRIBUTOR Indemnitees harmless from and against any
Liability arising out of or resulting from any and all claims
that any of the Services infringe upon or misappropriate
Intellectual Property Rights. iSecureTrac agrees to defend any
suit or proceeding brought against any DISTRIBUTOR Indemnitee
which is based on such claim.
12.2. CONDITIONS. The above stated indemnity is subject to the
following conditions; provided, however that any failure to
satisfy such conditions shall excuse iSecureTrac from its
indemnification obligation hereunder only to the extent (if
any) that it is prejudiced thereby:
(a) DISTRIBUTOR must promptly notify iSecureTrac in
writing of any claim of infringement covered by such
indemnity upon obtaining actual knowledge thereof and
provide iSecureTrac, at its reasonable request and at
iSecureTrac's expense, with the reasonable
assistance, information and cooperation necessary to
defend against any such claim or litigation;
(b) DISTRIBUTOR must grant iSecureTrac sole authority to
defend or settle such claim with counsel reasonably
satisfactory to DISTRIBUTOR, except that the
iSecureTrac shall not settle any such
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claim without first obtaining DISTRIBUTOR's prior
written consent, unless: (i) such settlement contains
no finding or admission of fault or violation of law
on the part of DISTRIBUTOR, (ii) the sole relief
provided in such settlement is monetary damages that
are paid in full by iSecureTrac, and (iii) if
iSecureTrac fails to retain counsel or otherwise
defend any such claim, DISTRIBUTOR may, in
DISTRIBUTOR's sole discretion and without prior
notice to or approval from iSecureTrac, defend or
settle such claim at iSecureTrac's sole cost and
expense;
(c) Any costs paid by iSecureTrac for such claim pursuant
to its indemnity hereunder that are incurred or
recovered in such litigation or negotiation shall
accrue to iSecureTrac's account; and
12.3. MUTUAL INDEMNIFICATION. Each party (the "Indemnitor") will
defend, indemnify, and hold the other party (the "Indemnitee")
harmless for and against any Liability arising out of or
resulting from: (i) the negligence or willful misconduct of
the Indemnitor, its employees, and agents; and/or (ii) any
breach of this Agreement by the Indemnitor, including any
breach, falsity, violation, or inaccuracy of or in any
representation, warranty, obligation, or covenant made by the
Indemnitor hereunder.
12.4. SEC DISCLOSURE INDEMNIFICATION. iSecureTrac will defend,
indemnify, and hold the DISTRIBUTOR Indemnitees harmless for
and against any Liability arising out of or resulting from any
SEC Disclosure by iSecureTrac and/or any related SEC
Disclosure Matters, including, but not limited to, any claim
brought by any third party (including, but not limited to, any
governmental regulatory authority or any past, present,
future, or potential shareholder or investor in iSecureTrac)
based upon its use of or reliance upon any SEC Disclosure or
alleging any violation of any Securities Laws involving any
SEC Disclosure.
12.5. INSURANCE. iSecureTrac agrees to obtain and maintain the
Insurance Policies throughout the Term at iSecureTrac's sole
cost and expense. All Insurance Policies shall: (i) be primary
without right of contribution from any insurance maintained by
DISTRIBUTOR; (ii) be issued by duly qualified insurance
carriers reasonably satisfactory to DISTRIBUTOR; and (iii)
require that DISTRIBUTOR be given at least thirty (30) days
prior written notice of cancellation, non-renewal, or any
material change therein. Contemporaneously with iSecureTrac's
execution of this Agreement, iSecureTrac shall deliver to
DISTRIBUTOR Certificates of Insurance evidencing the Insurance
Policies required by this Agreement.
12
13.0 LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE PROVIDED BELOW, IN NO EVENT WILL EITHER DISTRIBUTOR
OR ISECURETRAC BE LIABLE FOR (i) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, OR (ii) ANY DAMAGES RESULTING FROM LOSS OF DATA, FRUSTRATION OF
ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, REVENUES OR USE ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF ANY
SERVICES SOLD OR PROVIDED HEREUNDER, REGARDLESS OF WHETHER DISTRIBUTOR OR
ISECURETRAC, AS APPLICABLE, HAS BEEN NOTIFIED IN ADVANCE OF SUCH DAMAGES EXCEPT
TO THE EXTENT THAT ANY SUCH DAMAGES, WHETHER DESCRIBED IN POINT (i) OR (ii),
ARISE OUT OF, RELATE TO, OR ARE COVERED BY: (A) A PARTY'S BREACH OF ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR APPLICABLE LAW PERTAINING TO INTELLECTUAL
PROPERTY RIGHTS OR CONFIDENTIALITY; (B) ANY REPRESENTATION, WARRANTY, OR
INDEMNITY GIVEN BY A PARTY FOR OR AGAINST INFRINGEMENT OF A THIRD PARTY'S
INTELLECTUAL PROPERTY RIGHTS; (C) A PARTY'S GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, OR VIOLATION OF THE LAW; (D) PERSONAL INJURY OR DEATH; OR (E) ANY
RESPONSIBILITY OR OBLIGATION OF, INCLUDING ANY INDEMNITY GIVEN BY, ISECURETRAC
HEREUNDER FOR OR PERTAINING TO ANY SEC DISCLOSURE OR SEC DISCLOSURE MATTER.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ISECURETRAC SPECIFICALLY
DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACTS OF ANY MONITORED
PARTICIPANT MAKING USE OF ANY SPECIFIC ITRACKER BRACELET (a.k.a. "WEARER(S)")
DISTRIBUTOR hereby acknowledges that it recognizes and fully understands that
successful operation of iTracker units is highly dependent on wireless
communication and locational devices not provided by iSecureTrac and outside of
the control or scope of iSecureTrac. iSecureTrac DISCLAIMS ANY LIABILITY OR
RESPONSIBILITY FOR THE OPERATION OF GPS SATELLITES OR COMMERCIAL COMMUNICATIONS
SYSTEMS USED IN CONNECTION WITH ITS PRODUCTS.
14.0 NOTICES
Any notices required to be given hereunder will be given in writing and
sent to the other party, postage or transmission cost prepaid and properly
addressed, at the address indicated below:
To iSecureTrac:
iSecureTrac Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000
Attn: SecurityLink Account Manager
13
To DISTRIBUTOR:
SecurityLink/ADT Security Services, Inc.
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xx Xxxxx
With a copy to:
ADT Security Services, Inc.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxx, Esq., General Counsel
Notices shall be deemed given when delivered in person or received via
registered or certified mail, or via a nationally recognized overnight courier,
or acknowledged facsimile transmission, provided such acknowledgement is machine
generated.
15.0 INFORMATION RELEASES; PUBLIC DISCLOSURES
Except as may be required by law or the rules or regulations of the
Securities and Exchange Commission (subject to compliance with the terms
provided below), prior to the disclosure or dissemination of any Public
Disclosures, written consent must be obtained from the other party as to
content, means and timing of such Public Disclosure, which consent may be
granted or denied in such other party's sole discretion. The Public Disclosure
shall be reviewed by the non-disclosing party as expeditiously as reasonable
upon receipt. The following terms shall apply to any Public Disclosure made
pursuant to any Securities Laws, including, but not limited to, SEC Disclosures:
(i) except to the extent specifically required by Securities Laws, no SEC
Disclosure shall, directly or indirectly, expressly or implicitly, identify or
refer to the non-disclosing party or any of its affiliates by name or otherwise
(the "Anonymity Requirement"), (ii) no SEC Disclosure referencing, involving, or
pertaining to this Agreement, the transactions hereunder, or the non-disclosing
party shall be made, published, or released without first obtaining the
non-disclosing party's prior written confirmation that each Relevant SEC
Disclosure Provision(s) (each of which shall constitute a "SEC Disclosure" for
all purposes hereunder) complies with the Anonymity Requirement, (iii) the
non-disclosing party's review, approval, and/or rejection of any SEC Disclosure
shall be limited solely and exclusively to an evaluation and determination of
whether each Relevant SEC Disclosure Provision satisfies the Anonymity
Requirement, (iv) no review, approval, rejection, and/or any other act or
omission on the part of the non-disclosing party with respect to any SEC
Disclosure shall constitute or be taken, construed, or represented as an
opinion, representation, warranty, approval, authorization, ratification,
confirmation, recommendation, or guidance, or assumption of any liability, duty,
or responsibility by or of the non-disclosing party for, of, or with respect to
the SEC Disclosure or any matter relating thereto, including, but not limited
to, the content, form, truth, accuracy, sufficiency, timing, legality, or
necessity of such SEC Disclosure, the use of or reliance upon such SEC
Disclosure by the disclosing party or any third party (including, but not
limited to, any past,
14
present, future, or potential iSecureTrac shareholder or investor of the
disclosing party), or whether such SEC Disclosure complies with or violates any
applicable Securities Law (collectively, "SEC Disclosure Matters"), and (v) the
disclosing party shall have and at all times retain sole and exclusive liability
and responsibility for each SEC Disclosure and all SEC Disclosure Matters under
all circumstances whatsoever, including, but not limited to, where the
non-disclosing party confirms that an SEC Disclosure satisfies the Anonymity
Requirement.
16.0 MISCELLANEOUS
16.1. FORCE MAJEURE. Neither party shall be liable to the other
party for failure or delay in performance of its obligations
under this Agreement due to events of "force majeure,"
including, but not limited to strikes, wars, revolutions,
fires, floods, explosions, earthquakes, other acts of God,
government regulations or other causes beyond its control
("Force Majeure Event(s)"). Notwithstanding the foregoing, if
any Force Majeure Event prevents or delays either party from
performing its obligations for 180 consecutive days or more,
the other party may terminate this Agreement on written notice
to the delayed or non-performing party.
16.2. AMENDMENT. This Agreement may not be changed, amended or
modified except by a writing executed by the parties hereto.
Terms and conditions, whether printed or written, stated in
any purchase order, acknowledgement, confirmation or invoice
pursuant hereto shall be of no force or effect to the extent
such terms would modify, add to or are inconsistent with the
terms and conditions described in this Agreement.
16.3. CAPTIONS. The captions contained herein are for convenience of
reference only and shall not affect or be construed to affect
the meaning or the terms of this Agreement.
16.4. BINDING AGREEMENT. This Agreement shall inure to the benefit
of and binding upon the parties hereto and their respective
successors and assigns.
16.5. ENTIRE AGREEMENT. This Agreement and attachments hereto
represent the entire and final agreement and understanding
between the parties concerning the subject matter described
herein. Any other agreements or understandings between the
parties concerning the subject matter described herein,
whether oral or written, shall be of no force and effect.
16.6. SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable under the law of the jurisdiction
applicable to this Agreement, such invalidity or
unenforceability shall not invalidate or render unenforceable
the entire Agreement, but the rights and obligations of the
parties shall be construed as if the Agreement did not contain
the unenforceable provision or provisions.
15
16.7. WAIVER. No delay or failure by either party to exercise or
enforce at any time any right or provision of this Agreement
shall be considered a waiver thereof or of such party's right
thereafter to exercise or enforce each and every right and
provision of this Agreement. In order for a waiver to be
valid, it shall be in writing, signed by the waiving party,
but need not be supported by consideration.
16.8. ASSIGNMENT. Neither party hereto shall have the right to
assign this Agreement or any obligations or rights hereunder
to any third party without the prior written consent of the
other party. Any attempt to make said assignment without the
written permission of the other party shall be void.
16.9. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
STATE OF NEW YORK.
IN WITNESS WHEREOF, DISTRIBUTOR and ISECURETRAC have caused this
Agreement to be executed by their duly authorized representatives as of the
Effective Date first above written.
iSecureTrac Corp. ADT Security Services, Inc.,
("iSecureTrac") successor in interest to SecurityLink, Inc.
("DISTRIBUTOR")
By:____________________________ By:____________________________
Name:_________________________ Name:_________________________
Title:__________________________ Title:__________________________
Date:__________________________ Date:__________________________
16
AGREEMENT NO. HA-011010
ATTACHMENT 1
HOSTING FEES
------------------------------------ ----------------------------------------------- --------------------------------------
APPLICATION FUNCTION DESCRIPTION HOSTING FEE
------------------------------------ ----------------------------------------------- --------------------------------------
Active GPS Tracking ACTIVE GPS TRACKING SHALL INCLUDE ON-LINE [confidential treatment requested]
ACCESS AND USE OF THE APPLICATION ON THE
SERVERS TO ACQUIRE AND USE THE FOLLOWING
FUNCTIONS, FEATURES, CAPABILITIES, AND
SERVICES FOR EACH ACTIVE ITRACKER UNIT
DURING ITS ACTIVATION TERM:
o Real time, continuous GPS tracking
and mapping of each Active iTracker
Unit
o Archiving all Movement Data,
including historical mapping and
tracking data, for
evidentiary/management use
o Permits two-way cellular
communications
o Each Active iTracker Unit may be
associated with a specific
Transmitter Bracelet
o Anytime electronic Activation and
Deactivation in the Application
o Up to twenty (20)
Inclusion/Exclusion Zones which may
be modified at any time
o Immediate cellular notification of
all Violations to the supervising
------------------------------------ ----------------------------------------------- --------------------------------------
17
------------------------------------ ----------------------------------------------- --------------------------------------
APPLICATION FUNCTION DESCRIPTION HOSTING FEE
------------------------------------ ----------------------------------------------- --------------------------------------
authority, including, but not
limited to, Zone Violations
o Secure access
o 60 days of Data Archiving of
Movement Data, including historical
mapping data
[confidential treatment requested]
o "Where Are You" Paging ("WAY
Paging")
------------------------------------ ----------------------------------------------- --------------------------------------
Passive GPS Tracking PASSIVE GPS TRACKING SHALL INCLUDE ON-LINE [confidential treatment requested]
ACCESS AND USE OF THE APPLICATION ON THE
SERVERS TO ACQUIRE AND USE THE FOLLOWING
FUNCTIONS, FEATURES, CAPABILITIES, AND
SERVICES FOR EACH PASSIVE ITRACKER UNIT
DURING ITS ACTIVATION TERM:
o Tracking and mapping of each
Passive iTracker Unit (next day
reporting)
o Generation of historical GPS
mapping/tracking data for each
Passive iTracker Unit. Tracking
data will be collected on a real
time basis and stored on the
Passive iTracker Unit
o Each Passive iTracker Unit may be
associated with a specific
Transmitter Bracelet.
o Anytime electronic Activation and
Deactivation
o Up to twenty (20)
Inclusion/Exclusion Zones which may
be modified at anytime
o Next day reporting of all
Violations to the supervising
------------------------------------ ----------------------------------------------- --------------------------------------
18
------------------------------------ ----------------------------------------------- --------------------------------------
APPLICATION FUNCTION DESCRIPTION HOSTING FEE
------------------------------------ ----------------------------------------------- --------------------------------------
authority, including, but not
limited to, Zone Violations
(immediate notification of specific
violations while docked)
o Secure access
o 60 days of Data Archiving of
Movement Data, including historical
mapping data
------------------------------------ ----------------------------------------------- --------------------------------------
Data Warehousing Hierarchical storage of Movement Data for [confidential treatment requested]
more than 60 days
------------------------------------ ----------------------------------------------- --------------------------------------
Archival Data Delivery Collection and preparation of archival [confidential treatment requested]
Movement Data and delivery of a CD
containing same
------------------------------------ ----------------------------------------------- --------------------------------------
Automatic Tracking Data Delivery Automatic, high-speed, secure transmission [confidential treatment requested]
of [confidential treatment requested]
encrypted, archival Movement Data for each
Activated iTracker Unit from the Servers to
the ADT archive server using file transfer
protocol on a rolling, periodic basis.
------------------------------------ ----------------------------------------------- --------------------------------------
iSecureTrac Corp. ADT Security Services, Inc.,
("iSecureTrac") successor in interest to SecurityLink, Inc.
("DISTRIBUTOR")
By:____________________________ By:____________________________
Name:_________________________ Name:_________________________
Title:__________________________ Title:__________________________
Date:__________________________ Date:__________________________
19
AGREEMENT NO. HA-011010
ATTACHMENT 2
SUPPORT SERVICES
Service Description Support Fee
------- ----------- -----------
Training On-site training of DISTRIBUTOR personnel, covering
the use of the Application, including all Application
Functions. Limited to 8 persons per Session. [confidential treatment requested]
Two (2) days of Training will be provided by iSecureTrac to DISTRIBUTOR
at DISTRIBUTOR's designated location at no charge to DISTRIBUTOR
iSecureTrac will also invoice DISTRIBUTOR for reasonable travel
expenses actually incurred by iSecureTrac personnel in providing on-site
Training, consisting of transportation, lodging, and meals. Prior to scheduling
on-site Training, iSecureTrac will submit a Training agenda for DISTRIBUTOR's
approval.
iSecureTrac Corp. ADT Security Services, Inc.,
("iSecureTrac") successor in interest to SecurityLink, Inc.
("DISTRIBUTOR")
By:____________________________ By:____________________________
Name:_________________________ Name:_________________________
Title:__________________________ Title:__________________________
Date:__________________________ Date:__________________________
20
AGREEMENT NO. HA-011010
ATTACHMENT 3
SOURCE CODE ESCROW AGREEMENT
Attached Hereto
21
MASTER PREFERRED ESCROW AGREEMENT
Master Number ______________________
This agreement ("Agreement") is effective ________, 20__ among DSI Technology
Escrow Services, Inc. ("DSI"),
iSecureTrac Corporation ("Depositor"), and any
additional party signing the Acceptance Form attached to this Agreement
("Preferred Beneficiary"), who collectively may be referred to in this Agreement
as the parties ("parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a
separate agreement (including, but not limited to, a
Hosting Services Agreement)
regarding certain proprietary technology of Depositor (referred to in this
Agreement as the "License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical
to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement, pursuant to 00 Xxxxxx Xxxxxx [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall deliver
to DSI the proprietary technology and other materials ("Deposit Materials")
required to be deposited by the License Agreement. If the License Agreement does
not identify the materials to be deposited with DSI, then such materials will be
identified on Exhibit A. If Exhibit A is applicable, it is to be prepared and
signed by Depositor and Preferred Beneficiary. DSI shall have no obligation with
respect to the preparation, signing or delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the
22
obligation to notify the parties regarding the status of the account as required
in Section 2.2 below.
1.3 ESCROW ACCOUNT NAME IDENTIFICATION. Subject to this Article 1, and at
or prior to the time Depositor makes the initial deposit with DSI in accordance
with Section 1.2 above, Depositor shall complete and sign Exhibit D naming the
initial account upon which the Deposit Materials are written or stored. Any new
deposits referencing new account names made subsequent to the signing of this
Agreement, intended by the Depositor to be held in a separate account and
maintained separately from the initial account, but made a part of this
Agreement, shall be provided for by the Depositor on Exhibit E, and Exhibit E
shall be signed by the Depositor and DSI.
1.4 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the deposit
inspection, Preferred Beneficiary may elect to cause a verification of the
Deposit Materials in accordance with Section 1.7 below.
1.5 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI.
1.6 DEPOSITOR'S REPRESENTATIONS. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as provided
in this Agreement;
c. The Deposit Materials are not subject to any lien or other encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified in the License Agreement or Exhibit A, as the case may be;
and
e. The Deposit Materials are machine readable and useable in their current
form or, if any portion of the Deposit Materials is encrypted, the decryption
tools and decryption keys have also been deposited.
1.7 VERIFICATION. A verification determines, in different levels of detail,
the accuracy,
23
completeness, sufficiency and quality of the Deposit Materials. Preferred
Beneficiary shall have the right to cause a verification of any Deposit
Materials, at Preferred Beneficiary's expense. Preferred Beneficiary shall
notify Depositor and DSI of Preferred Beneficiary's request for verification.
Depositor shall have the right to be present at the verification. If a
verification is elected after the Deposit Materials have been delivered to DSI,
then only DSI, or at DSI's election an independent person or company selected
and supervised by DSI, may perform the verification.
1.8 DEPOSIT UPDATES.
a. GENERALLY. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within sixty (60) days of each
release of a new version of the product which is subject to the License
Agreement. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and Depositor shall sign the new
Exhibit B. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.7 above. All references in this Agreement
to the Deposit Materials shall include the initial Deposit Materials and any
updates.
b. DEPOSITRACK SERVICE. DSI shall notify Depositor in writing
semi-annually of Depositor's obligation to make updated deposits. Within thirty
(30) days of receipt of such notice, Depositor shall certify in writing to DSI
that (a) it has made the updated deposits as required in the immediately
preceding paragraph; or (b) there has not been a release of a new version of the
product since the last deposit. After the thirty (30) days, DSI shall notify
Preferred Beneficiary that DSI has received (a) an updated deposit from
Depositor; (b) a statement from Depositor advising there has not been a release
of a new version of the product since the last deposit; or (c) no response from
Depositor. Unlimited deposit updates and two (2) storage units are included in
the fees for this Agreement.
1.9 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or any other order from a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It
shall be the responsibility of Depositor and/or Preferred Beneficiary to
challenge any such order; provided, however, that DSI does not waive its rights
to present its
24
position with respect to any such order. DSI will not be required to disobey any
order from a court or other judicial tribunal. (See Section 7.5 below for
notices of requested orders.)
2.2 STATUS REPORTS. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, Depositor and
Preferred Beneficiary shall each have the right to inspect the written records
of DSI pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
2.4 REMOVAL OF PREFERRED BENEFICIARY. In the event a License Agreement is
terminated by the parties thereto, either Depositor or Preferred Beneficiary may
notify DSI of such event and request DSI to cancel any services for or
obligations to such Preferred Beneficiary under this Agreement and remove
Preferred Beneficiary as a party to this Agreement ("Cancellation Notice"). If
the Cancellation Notice has been send by Depositor, DSI shall verify the
accuracy of its content by notifying Preferred Distributor of such receipt
within ten (10) calendar days thereof by mail or electronic transmission
("Verification Notice"). The Cancellation Notice shall be deemed accurate and
DSI may act accordingly if DSI has not received contrary instructions from
Preferred Beneficiary within thirty (30) calendar days of its mailing or
transmission by DSI. If the Cancellation Notice has been send by Preferred
Beneficiary, it shall be deemed accurate and DSI may act accordingly. DSI shall
credit Depositor on a pro-rata basis for any Preferred Beneficiary so removed as
a party to this Agreement.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 TITLE TO MEDIA. Depositor hereby transfers to DSI the title to the
media upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
3.3 RIGHT TO TRANSFER UPON RELEASE. Depositor hereby grants to DSI the
right to transfer Deposit Materials to Preferred Beneficiary upon any release of
the Deposit Materials for use by Preferred Beneficiary in accordance with
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, DSI shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
25
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Conditions"
shall mean the existence of any one or more of the following circumstances,
uncorrected for more than thirty (30) days:
a. Entry of an order for relief for Depositor under Title 11 of the United
States Code;
b. The making by Depositor of a general assignment for the benefit of
creditors;
c. The appointment of a general receiver or trustee in bankruptcy of
Depositor's business or property;
d. Action by Depositor under any state insolvency or similar law for the
purpose of its bankruptcy, reorganization or liquidation;
e. Depositor's failure to continue to do business in the ordinary course;
f. Depositor's failure to maintain, in the event software source code is
part or all of the Deposit Materials, software licensed for use or accessible
through a Web site hosting arrangement by Depositor to any Preferred
Beneficiary; or
g. Depositor's material breach of a License Agreement, without curing such
breach as may be provided for in such License Agreement.
4.2 FILING FOR RELEASE. If Preferred Beneficiary believes in good faith
that a Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials. Upon receipt of such notice, DSI shall provide
a copy of the notice to Depositor by commercial express mail.
4.3 CONTRARY INSTRUCTIONS. From the date DSI mails the notice requesting
release of the Deposit Materials, Depositor shall have thirty (30) calendar days
to deliver to DSI contrary instructions ("Contrary Instructions"). Contrary
Instructions shall mean the written representation by Depositor that a Release
Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a copy to Preferred Beneficiary by commercial
express mail. Additionally, DSI shall notify both Depositor and Preferred
Beneficiary that there is a dispute to be resolved pursuant to Section 7.3 of
this Agreement. Subject to Section 5.2 of this Agreement, DSI will continue to
store the Deposit Materials without release pending (a) joint instructions from
Depositor and Preferred Beneficiary; (b) dispute resolution pursuant to Section
7.3; or (c) order of a court.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release the Deposit Materials to the
Preferred Beneficiary or, if more than one beneficiary is registered to the
deposit, to release a copy of the Deposit Materials to the Preferred
Beneficiary. However, DSI is entitled to receive any fees due DSI before making
the release. Any copying expense in excess of $300 will be chargeable to
Preferred Beneficiary.
26
Upon any such release, the escrow arrangement will terminate as it relates to
the Depositor and Preferred Beneficiary involved in the release.
4.5 RIGHT TO USE FOLLOWING RELEASE. Unless otherwise provided in the
License Agreement, upon release of the Deposit Materials in accordance with this
Article 4, Preferred Beneficiary shall have the right to use the Deposit
Materials for the sole purpose of continuing the benefits afforded to Preferred
Beneficiary by the License Agreement. Preferred Beneficiary shall be obligated
to maintain the confidentiality of the released Deposit Materials in accordance
with the License Agreement.
ARTICLE 5 -- TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI
in writing that the Agreement is terminated; or (b) DSI instructs Depositor and
Preferred Beneficiary in writing that the Agreement is terminated for nonpayment
in accordance with Section 5.2 or by resignation in accordance with Section 5.3.
If the Acceptance Form has been signed at a date later than this Agreement, the
initial term of the Acceptance Form will be for one year with subsequent terms
to be adjusted to match the anniversary date of this Agreement. If the Deposit
Materials are subject to another escrow agreement with DSI, DSI reserves the
right, after the initial one year term, to adjust the anniversary date of this
Agreement to match the then prevailing anniversary date of such other escrow
arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at any
time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 TERMINATION BY RESIGNATION. DSI reserves the right to terminate this
Agreement, for any reason, by providing Depositor and Preferred Beneficiary with
60-days' written notice of its intent to terminate this Agreement. Within the
60-day period, the Depositor and Preferred Beneficiary may provide DSI with
joint written instructions authorizing DSI to forward the Deposit Materials to
another escrow company and/or agent or other designated recipient. If DSI does
not receive said joint written instructions within 60 days of the date of DSI's
written termination notice, then DSI shall destroy, return or otherwise deliver
the Deposit Materials in accordance with Section 5.4.
5.4 TERMINATION FOR CONVENIENCE. Provided that all Preferred Beneficiaries
have been removed as parties to this Agreement in accordance with Section 2.4,
Depositor may terminate this Agreement without cause at any time during the term
of this Agreement on thirty (30) days
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prior written notice to DSI.
5.5 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Subject to the
foregoing termination provisions, and upon termination of this Agreement, DSI
shall destroy, return, or otherwise deliver the Deposit Materials in accordance
with instructions. If there are no instructions, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to Depositor. DSI shall
have no obligation to destroy or return the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with DSI or have been released
to the Preferred Beneficiary in accordance with Section 4.4.
5.6 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section 4.5), if a
release of the Deposit Materials has occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they survive
the termination of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. Unless otherwise stated in this Agreement
or agreed in a writing signed by DSI, Depositor will pay DSI's fees. DSI shall
notify the party responsible for payment of DSI's fees at least sixty (60) days
prior to any increase in fees. For any service not listed on DSI's standard fee
schedule, DSI will provide a quote prior to rendering the service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI are paid
in full. Fees are due upon receipt of a signed contract or receipt of the
Deposit Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a
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party to this Agreement who gives any written notice, request, or instruction
has the authority to do so. DSI shall not be required to inquire into the truth
or evaluate the merit of any statement or representation contained in any notice
or document. DSI shall not be responsible for failure to act as a result of
causes beyond the reasonable control of DSI.
7.2 INDEMNIFICATION. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement unless such Liabilities were caused solely by the negligence or
willful misconduct of DSI.
7.3 DISPUTE RESOLUTION. Unless otherwise agreed by Depositor and Preferred
Beneficiary, any dispute relating to or arising from this Agreement shall be
initiated and maintained in a court of competent jurisdiction in San Diego,
California, USA.
7.4 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of Nebraska, without regard to its conflict of law
provisions.
7.5 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction which may direct DSI to
take, or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the reasonable value
of the services to be rendered pursuant to such order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the original in its
possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form
and Exhibits described herein, embodies the entire understanding among all of
the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written. DSI
is not a party to the License Agreement between Depositor and Preferred
Beneficiary and has no knowledge of any of the terms or provisions of any such
License Agreement. DSI's only obligations to Depositor or Preferred Beneficiary
are as set forth in this Agreement. No amendment or modification of this
Agreement shall be valid or binding unless signed by all the parties hereto,
except that Exhibit A need not be signed by DSI, Exhibit B need not be signed by
Preferred Beneficiary, Exhibit C need not be signed, and the Acceptance Form
need only be signed by the parties identified therein.
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8.2 NOTICES. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses specified in
the attached Exhibit C and Acceptance Form. It shall be the responsibility of
the parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
8.3 SEVERABILITY. In the event any provision of this Agreement is found to
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable provision
most closely reflecting the intent and purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
8.5 REGULATIONS. Depositor and Preferred Beneficiary are responsible for
and warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export laws
and government regulations of any country from or to which the Deposit Materials
may be delivered in accordance with the provisions of this Agreement.
iSecureTrac Corporation DSI Technology Escrow Services, Inc.
By: _________________________ By: _________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
Date: _______________________ Date: _______________________
P01v2
30
PREFERRED BENEFICIARY ACCEPTANCE FORM
Account Number ________________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that ADT Security Services, Inc., a Delaware
corporation with its principal offices at Xxx Xxxx Xxxxxx Xxxx., X.X. Xxx 0000,
Xxxx Xxxxx, XX 00000-0000 is the Preferred Beneficiary referred to in the Master
Preferred Escrow Agreement ("Agreement") effective ________, 20__ with DSI as
the escrow agent and
iSecureTrac Corporation as the Depositor. Preferred
Beneficiary hereby agrees to be bound by all provisions of such Agreement.
Notices and communications to Invoices should be addressed to:
Preferred Beneficiary should
be addressed to: Same address as notices and
ADT Security Services, Inc./SecurityLink, Inc. communications set forth to the left
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xx Xxxxx
Tel: _________________________ Tel: _________________________
Fax: _________________________ P.O.# if req'rd: _____________
iSecureTrac Corporation ADT Security Services, Inc.
Depositor Preferred Beneficiary
By: _________________________ By: _________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
Date: _______________________ Date: _______________________
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DSI Technology Escrow Services, Inc.
By: _________________________
Name: _______________________
Title: ______________________
Date: _______________________
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EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number _________________
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of all of the "Software Escrow Materials" defined and
required by the License Agreement
iSecureTrac Corporation ADT Security Services, Inc.
Depositor Preferred Beneficiary
By: _________________________ By: _________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
Date: _______________________ Date: _______________________
P01v2
33
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name: iSecureTrac Corporation
Account Number: __________________________
Product Name: tracNet24 Version: _____________
(Product Name will appear as the Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
____ Disk 3.5" or ____
____ DAT tape ____mm
____ CD-ROM
____ Data cartridge tape ____
____ TK 70 or ____ tape
____ Magnetic tape ____
____ Documentation
____ Other ______________________
PRODUCT DESCRIPTION:
tracNet24 is iSecureTrac's proprietary application software which monitors,
tracks and reports on the movement of iSecureTrac's GPS based personal tracking
units, known as iTrackers. Deposit materials consists of commented source code
to the current version of tracNet24 and compiling and linking information and
related documentation on CD-ROMs or other media.
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools.
Encryption tool name________________________ Version:__________________
Hardware required: _________________________________________________________
Software required: _________________________________________________________
Other required information: ________________________________________________
I certify for Depositor that the above described Deposit Materials have been
transmitted to DSI:
Signature: ________________________
Print Name: _______________________
Date: _____________________________
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DSI has inspected and accepted the above materials (any exceptions are noted
above):
Signature: _________________________
Print Name: ________________________
Date Accepted:______________________
Exhibit B#:_________________________
Send materials to: DSI Technology Escrow Services, 0000 Xxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000 (800) 875-5669 x107
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EXHIBIT C
DESIGNATED CONTACT
Account Number: _________________
Notices and communications Invoices should be addressed to:
should be addressed to:
Company Name: ________________
Address: _____________________ Address: _____________________
Address: _____________________ Address: _____________________
Address: _____________________ Address: _____________________
Designated Contact: __________ Contact: _____________________
Tel: _________________________ Tel: _________________________
Fax: _________________________ P.O.# if req'rd: _____________
Email: _______________________ Email: _______________________
Verification Contact:
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and Invoice inquiries and fee
notices to DSI should be addressed: remittances addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Inc.
Contract Administration Accounts Receivable
Xxxxx 000 Xxxxx 000
0000 Xxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: ((000) 000-0000 Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxx.xxx
Date:__________________
P01v2
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EXHIBIT D
NAME OF INITIAL ACCOUNT
Account Number ______________________________
iSecureTrac Corp. ("Depositor") has entered into a Master Preferred Escrow
Agreement with DSI Technology Services, Inc. ("DSI"). Pursuant to that
Agreement, Depositor may deposit certain Deposit Material with DSI.
The initial account will be referenced by the following name:
TracNET24 Escrow
iSecureTrac Corporation
Depositor
By: ______________________________
Name: ____________________________
Title: ___________________________
Date:
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EXHIBIT E
ADDITIONAL ESCROW ACCOUNT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number ______________________
New Account Number ______________________
iSecureTrac Corp. ("Depositor") has entered into a Master Preferred Escrow
Agreement with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to that
Agreement, Depositor may deposit certain Deposit Materials with DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the initial account. By execution of this Exhibit
E, DSI will establish a separate account for the new Deposit Materials. The new
account will be referenced by the following name: ____________________________.
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
iSecureTrac Corp. DSI Technology Escrow Services, Inc.
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
Date: Date:
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