EX-10.5
6
v025844_ex10-5.htm
Three-Party
Escrow Service Agreement
Deposit
Account Number:
____________________
This
Three Party Escrow Service Agreement (the “Agreement”)
is
entered into by and between BSI2000, Inc., located at 00000 Xxxx Xxxxxx Xxx.,
Xxxxx X000, Xxxxxxxx, XX 00000 (the “Depositor”),
and
by The New Sytron, Inc., located at 00000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000
(the “Beneficiary”)
and by
Iron Mountain Intellectual Property Management, Inc. (“Iron
Mountain”)
on
this __ day of August, 2005 (the “Effective
Date”).
Depositor, Beneficiary, and Iron Mountain may be referred to individually as
a
"Party" or collectively as the "Parties" throughout this Agreement.
The
use
of the term “Services”
in this
Agreement shall refer to Iron Mountain Services that facilitate the creation,
management, and enforcement of software and/or other technology escrow accounts
as described in Exhibit A attached hereto. A Party shall request Services under
this Agreement (i) by submitting a work request associated for certain Iron
Mountain Escrow Services via the online portal maintained at the Website located
at xxx.xxxxxxxxxxxxxxxxxxx.xxx or
any
other Websites or Web pages owned or controlled by Iron Mountain that are linked
to that Website (collectively the “Iron
Mountain Website”),
or
(ii) by submitting a written work request attached hereto as Exhibit A (each,
individually, a “Work
Request”).
| 2. |
Depositor
Responsibilities.
|
|
| (a) |
Depositorshall
provide all information designated as required to fulfill a Work
Request
(“Required
Information”)
and may also provide other information (“Optional
Information”)
at their discretion to assist Iron Mountain in the fulfillment of
requested Services.
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|
| (b) |
Depositor
must authorize and designate one or more persons whose action(s)
will
legally bind the Depositor (“Authorized
Person(s)”
who shall be identified in the Authorized Person(s)/Notices Table
of this
Agreement) and
who may manage the Iron Mountain escrow account through the Iron
Mountain
Website or via written Work Request. Authorized Person(s) will maintain
the accuracy of their name and contact information provided to Iron
Mountain during the Term of this Agreement (the “Depositor
Information”).
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|
| (c) |
Depositor
shall make an initial deposit that is complete and functional of
all
proprietary technology and other materials covered under this Agreement
(“Deposit
Material”)
to Iron Mountain within ninety (90) days of the Effective Date. Depositor
may also update Deposit Material from time to time during the Term
of this
Agreement provided a minimum of one (1) complete and functional copy
of
Deposit Material is deposited with Iron Mountain at all times. At
the time
of each deposit or update, Depositor will provide an accurate and
complete
description of all Deposit Material sent to Iron Mountain via the
Iron
Mountain Website or using the form attached hereto as Exhibit
B.
|
|
| (d) |
Depositor
consents to Iron Mountain’s performance of any level(s) of verification
Services described in Exhibit A attached hereto, consents, upon receipt
of
notice from Iron Mountain that Beneficiary has submitted a Work Request
for verification Services, to promptly completing and returning the
Escrow
Deposit Questionnaire attached as Exhibit Q to Iron Mountain,
and
further consents to Iron Mountain’s use of a subcontractor (who shall be
bound by the same confidentiality obligations as Iron Mountain and
who
shall not be a direct competitor to either Depositor or Beneficiary)
to
provide such Services as needed.
|
|
| (e) |
Depositorrepresents
that it lawfully possesses all Deposit Material provided to
Iron Mountain
under this Agreement. Any Deposit Material liens or encumbrances
made
after their deposit will not prohibit, limit, or alter the
rights and
obligations of Iron Mountain under this
Agreement;
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(f)
|
Depositor
represents that all Deposit Material is readable and useable in its
then
current form; if any portion of such Deposit Material is encrypted
the
necessary decryption tools and keys to read such material are deposited
contemporaneously;
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(g)
|
Depositor
represents that all Deposit Material is provided with all rights
necessary
for Iron Mountain to verify such proprietary technology and materials
upon
receipt of a Work Request for such Services;
and
|
| |
(h)
|
Depositor
warrants that Iron Mountain’s use of the Deposit Material or other
materials supplied by Depositor to perform the verification Services
described in Exhibit A is lawful and does not violate the rights
of any
third parties. Depositor agrees to use commercially reasonable efforts
to
provide Iron Mountain with any necessary use rights or permissions
to use
materials necessary to perform verification of the Deposit Material.
Depositor agrees to reasonably cooperate with Iron Mountain by providing
its facilities, computer software systems, and technical personnel
for
verification Services whenever reasonably
necessary.
|
| 3. |
Beneficiary
Responsibilities.
|
| |
(a)
|
Beneficiary
shall provide all information designated as required to fulfill any
Beneficiary Work Request (“Required
Information”)
and may also provide other information (“Optional
Information”)
at their discretion to assist Iron Mountain in the fulfillment of
requested Services.
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| |
(b)
|
Beneficiary
must authorize and designate one or more persons whose action(s)
will
legally bind the Beneficiary (“Authorized
Person(s)” who
shall be identified in the Authorized Person(s)/Notices Table of
this
Agreement) who
shall manage the Iron Mountain escrow account through the Iron Mountain
Website or via written Work Request. Authorized Person(s) will maintain
the accuracy of their name and contact information provided to Iron
Mountain during the Term of this Agreement (the “Beneficiary
Information”).
|
|
| (c) |
Beneficiary
acknowledges, in the absence of a Work Request for verification Services,
that it assumes all responsibility for the completeness and/or
functionality of all Deposit Material. Beneficiary may submit a
verification Work Request to Iron Mountain for one of more of the
Services
defined in Exhibit A attached hereto and further consents to Iron
Mountain’s use of a subcontractor if needed to provide such
Services.
|
|
| (d) |
Beneficiary
warrants that Iron Mountain’s use of any materials supplied by Beneficiary
to perform the verification Services described in Exhibit A is lawful
and
does not violate the rights of any third
parties.
|
4. Iron
Mountain Responsibilities.
| |
(a)
|
Iron
Mountain agrees to use commercially reasonable efforts to provide
the
Services requested by authorized Depositor and Beneficiary representatives
in a Work Request. Iron Mountain may reject a Work Request (in whole
or in
part) that does not contain all Required Information at any time
upon
notification to the Party originating the Work
Request.
|
| |
(b)
|
Iron
Mountain will conduct a deposit inspection upon receipt of any Deposit
Material and associated Exhibit B. If Iron Mountain determines that
the
Deposit Material does not match the description provided by Depositor
represented in Exhibit B attached hereto, Iron Mountain will provide
Depositor with notice by electronic mail, telephone, or regular mail
of
such discrepancies. Iron Mountain will work directly with the Depositor
to
resolve any such discrepancies prior to accepting Deposit
Material.
Iron Mountain will provide Depositor with notice from time to time
during
the first ninety (90) days from the Effective Date as a reminder
that
submission of initial Deposit Material is required. Iron Mountain
may also
send notices every ninety (90) days thereafter to Depositor and/or
Beneficiary related to Deposit Material activity if such Services
are
requested in a Work Request.
|
| |
(c)
|
Iron
Mountain will provide notice by electronic mail, telephone, or regular
mail to the Beneficiary of all Deposit Material that is accepted
and
deposited into the escrow account under this
Agreement.
|
| |
(d)
|
Iron
Mountain will work with a Party who submits any verification Work
Request
for Deposit Material covered under this Agreement to either fulfill
any
standard verification Services Work Request or develop a custom Statement
of Work (“SOW”).
Iron Mountain and the requesting Party will mutually agree in writing
to a
SOW on the following terms and conditions that include but are not
limited
to: description of Deposit Material to be tested; description of
Verification testing; requesting Party responsibilities; Iron Mountain
responsibilities; Service Fees; invoice payment instructions; designation
of the Paying Party; designation of authorized SOW representatives
for
both the requesting Party and Iron Mountain with name and contact
information; and description of any final deliverables prior to the
start
of any fulfillment activity. After the start of fulfillment activity,
each
SOW may only be amended or modified in writing with the mutual agreement
of both Parties, in accordance with the change control procedures
set
forth therein.
|
|
| (e) |
Iron
Mountain will hold and protect all Deposit Material in physical and/or
electronic vaults that are either owned or under the direct control
of
Iron Mountain.
|
|
| (f) |
Iron
Mountain will permit the replacement and/or removal of previously
submitted Deposit Material upon Work Request that may be subject
to the
written joint instructions of the Depositor and
Beneficiary.
|
| |
(g)
|
Iron
Mountain will strictly follow the procedures set forth in Exhibit
C
attached hereto to process any Beneficiary Work Request to release
Deposit
Material.
|
The
Paying Party shall pay to Iron Mountain all fees as set forth in the Work
Request form attached hereto as Exhibit A (“Service
Fees”).
Except as set forth below, all Service Fees are due to Iron Mountain within
thirty (30) calendar days from the date of invoice in U.S. currency and are
non-refundable. Iron Mountain may update Service Fees with a ninety (90)
calendar day written notice to the Paying Party during the Term of this
Agreement. The Paying Party is liable for any taxes related to Services
purchased under this Agreement or shall present to Iron Mountain an exemption
certificate acceptable to the taxing authorities. Applicable taxes shall be
billed as a separate item on the invoice, to the extent possible. Any Service
Fees not collected by Iron Mountain when due shall bear interest until paid
at a
rate of 1.25% per month (15% per annum) or the maximum rate permitted by law,
whichever is less. Delinquent accounts may be referred to a collection agency
at
the sole discretion of Iron Mountain.
Notwithstanding, the non-performance of any obligations of Depositor to deliver
Deposit Material under the Security Agreement dated as of August ___,
2005
(the "Security
Agreement")
between Depositor and Beneficiary or this Agreement, Iron Mountain is entitled
to be paid all Service Fees that accrue during the Term of this Agreement.
All
Service Fees will not be subject to offset except as specifically provided
hereunder.
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(a)
|
The
initial “Term”
of this Agreement is for a period of one (1) year from the Effective
Date
and will automatically renew for additional one (1) year Terms, not
to
exceed five (5) one year Terms in the aggregate, and continue in
full
force and effect until one of the following events occur: (i) Depositor
and Beneficiary provide joint written instructions of their intent
to
cancel this Agreement within sixty (60) days to Iron Mountain; (ii)
Beneficiary provides a sixty (60) day written notice regarding
cancellation of this Agreement to both Depositor and Iron Mountain;
or
(iii) Iron Mountain provides a sixty (60) day written notice to the
Depositor and Beneficiary Authorized Persons that it can no longer
perform
the Services under this Agreement.
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| |
(b)
|
In
the event this Agreement is terminated under Sections 6(a)(i) or
6(a)(iii)
above, Depositor and Beneficiary may provide Iron Mountain with joint
written instructions authorizing Iron Mountain to forward the Deposit
Material to another escrow company and/or agent or other designated
recipient. If Iron Mountain does not receive joint written instructions
within sixty (60) calendar days after the date of the notice of
termination, Iron Mountain shall return to Depositor or destroy the
Deposit Material.
|
| |
(c)
|
In
the event of the nonpayment of Service Fees owed to Iron Mountain,
Iron
Mountain shall provide all Parties to this Agreement with notice
by
electronic mail and/or regular mail. Any Party to this Agreement
shall
have the right to make the payment to Iron Mountain to cure the default.
If the past due payment is not received in full by Iron Mountain
within
thirty (30) calendar days of the date of such notice, then Iron Mountain
shall have the right to terminate this Agreement at any time thereafter
by
sending notice by electronic mail and/or regular mail of termination
to
all Parties. Iron Mountain shall have no obligation to take any action
under this Agreement so long as any Iron Mountain invoice issued
for
Services rendered under this Agreement remains
uncollected.
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Each
Party shall defend, indemnify and hold harmless the others, their corporate
affiliates and their respective officers, directors, employees, and agents
and
their respective successors and assigns from and against any and all claims,
losses, liabilities, damages, and expenses (including, without limitation,
reasonable attorneys’ fees), arising under this Agreement from the negligent or
intentional acts or omissions of the indemnifying Party or its subcontractors,
or the officers, directors, employees, agents, successors and assigns of any
of
them.
| |
(a)
|
Iron
Mountain.
ANY AND ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A
WORKMANLIKE MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS
OR
IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST
INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE
LAW. AN
AGGRIEVED PARTY MUST NOTIFY IRON MOUNTAIN PROMPTLY OF ANY CLAIMED
BREACH
OF ANY WARRANTIES AND SUCH PARTY’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF
WARRANTY SHALL BE RETURN OF THE PORTION OF THE FEES PAID TO IRON
MOUNTAIN
BY PAYING PARTY FOR SUCH NON-CONFORMING SERVICES. THIS DISCLAIMER
AND
EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY
SET
FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. THE WARRANTY PROVIDED
IS
SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN SECTION 11
HEREIN.
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| |
(b)
|
Depositor.
Depositor warrants that all Depositor Information provided hereunder
is
accurate and reliable and undertakes to promptly correct and update
such
Depositor Information during the Term of this
Agreement.
|
|
| (c) |
Beneficiary.
Beneficiary warrants that all Beneficiary Information provided hereunder
is accurate and reliable and undertakes to promptly correct and update
such Beneficiary Information during the Term of this
Agreement.
|
9. Insurance.
Iron
Mountain shall, at its sole cost and expense, throughout the term of this
Agreement, procure and maintain in full force and effect, the following
insurance coverage, with an insurance carrier that is rated B+ or better by
A.M.
Best.
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Type
of Insurance
|
Coverage
Amount
|
Type
of Insurance
|
Coverage
Amount
|
|
General
Liability
|
$2,000,000
General Aggregate
|
Crime
Insurance
|
$2,000,000
Each Occurrence
|
|
General
Liability
|
$1,000,000
Each Occurrence
|
Umbrella
Coverage
|
$5,000,000
General Aggregate
|
|
Professional
Liability
|
$1,000,000
Each Occurrence
|
All
certificates of insurance shall name the Parties as additional beneficiaries
with respect to General Liability coverage. All certificates of insurance shall
require that the Parties be provided with advance written notice of cancellation
of the stated coverage, and Iron Mountain shall request that its insurer use
its
best efforts to provide at least thirty (30) days' advance written notification
of such cancellation.
10. Confidential
Information.
Iron
Mountain shall have the obligation to reasonably protect the confidentiality
of
the Deposit Material. Except as provided in this Agreement Iron Mountain shall
not disclose, transfer, make available or use the Deposit Material. Iron
Mountain shall not disclose the terms of this Agreement to any third Party.
If
Iron Mountain receives a subpoena or any other order from a court or other
judicial tribunal pertaining to the disclosure or release of the Deposit
Material, Iron Mountain will immediately notify the Parties to this Agreement
unless prohibited by law. It shall be the responsibility of Depositor and/or
Beneficiary to challenge any such order; provided, however, that Iron Mountain
does not waive its rights to present its position with respect to any such
order. Iron Mountain will not be required to disobey any order from a court
or
other judicial tribunal, including, but not limited to, notices delivered
pursuant to Section 13(g) below.
11. Limitation
of Liability.
NOTWITHSTANDING
ANYTHING ELSE HEREIN, ALL LIABILITY, IF ANY, WHETHER ARISING IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, OF ANY PARTY TO THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT EQUAL TO ONE YEAR OF FEES PAID OR OWED TO IRON MOUNTAIN
UNDER THIS AGREEMENT. IF CLAIM OR LOSS IS MADE IN RELATION TO A SPECIFIC DEPOSIT
OR DEPOSITS, SUCH LIABILITY SHALL BE LIMITED TO THE FEES RELATED SPECIFICALLY
TO
SUCH DEPOSITS. THIS LIMIT SHALL NOT APPLY TO ANY PARTY FOR: (I) ANY CLAIMS
OF
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHT;
(II) LIABILITY FOR DEATH OR BODILY INJURY; (III) DAMAGE TO TANGIBLE PROPERTY
(EXCLUDING THE DEPOSIT ITEMS); (IV) THEFT; OR (V) PROVEN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
12. Consequential
Damages Waiver.
IN
NO
EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST
DATA OR INFORMATION, ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE
SERVICES, OR ANY OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF MAY BE
KNOWN
IN ADVANCE TO ONE OR MORE PARTIES.
13. General.
| |
(a)
|
Incorporation
of Work Requests.
All Depositor and/or Beneficiary Work Requests are incorporated into
this
Agreement.
|
| |
(b)
|
Purchase
Orders.
The terms and conditions of this Agreement prevail regardless of
any
conflicting or additional terms on any Purchase Order or other
correspondence. Any contingencies or additional terms contained on
any
Purchase Order are not binding upon Iron Mountain. All Purchase Orders
are
subject to approval and acceptance by Iron
Mountain.
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| |
(c)
|
Right
to Make Copies.
Iron
Mountain shall have the right to make copies of all Deposit Material
as
reasonably necessary to perform this Agreement. Iron Mountain shall
copy
all copyright, nondisclosure, and other proprietary notices and titles
contained on Deposit Material onto any copies made by Iron
Mountain.
Any copying expenses incurred by Iron Mountain as a result of a Work
Request to copy will be borne by the Party requesting the copies.
Iron
Mountain may request Depositor’s reasonable cooperation in promptly
copying Deposit Material in order for Iron Mountain to perform this
Agreement.
|
| |
(d)
|
Choice
of Law.
The validity, interpretation, and performance of this Agreement shall
be
controlled by and construed under the laws of the State of New York,
United States of America, as if performed wholly within the state
and
without giving effect to the principles of conflicts of
laws.
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(e)
|
Right
to Rely on Instructions.
Iron Mountain may act in reliance upon any instruction, instrument,
or
signature reasonably believed by Iron Mountain to be genuine. Iron
Mountain may assume that any employee of a Party to this Agreement
who
gives any written notice, request, or instruction has the authority
to do
so. Iron Mountain will not be required to inquire into the truth
or
evaluate the merit of any statement or representation contained in
any
notice or document. Iron Mountain shall not be responsible for failure
to
act as a result of causes beyond the reasonable control of Iron
Mountain.
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(f)
|
Force
Majeure.
Except for the obligation to pay monies due and owing, no Party shall
be
liable for any delay or failure in performance due to events outside
the
defaulting Party’s reasonable control, including without limitation acts
of God, earthquake, labor disputes, shortages of supplies, riots,
war,
acts of terrorism, fire, epidemics, or delays of common carriers
or other
circumstances beyond its reasonable control. The obligations and
rights of
the excused Party shall be extended on a day-to-day basis for the
time
period equal to the period of the excusable
delay.
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| |
(g)
|
Notices.
All
notices regarding Exhibit C shall be sent by commercial express mail.
All
other correspondence, including invoices, payments, and other documents
and communications, shall be sent by (i) electronic mail; (ii) via
regular
mail to the Parties at the addresses specified in the Authorized
Persons/Notices Table which shall include the title(s) of the
individual(s) authorized to receive notices; or (iii) via
the online portal maintained at the Iron Mountain Website.
It
shall be the responsibility of the Parties to notify each other as
provided in this Section in the event of a change of physical or
e-mail
addresses. The Parties shall have the right to rely on the last known
address of the other Parties. Any correctly addressed notice or last
known
address of the other Parties that is relied on herein that is refused,
unclaimed, or undeliverable because of an act or omission of the
Party to
be notified as provided herein shall be deemed effective as of the
first
date that said notice was refused, unclaimed, or deemed undeliverable
by
electronic mail, the postal authorities by mail, through messenger
or
commercial express delivery
services.
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| |
(h)
|
No
Waiver.
No waiver of rights under this Agreement by any Party shall constitute
a
subsequent waiver of this or any other right under this
Agreement.
|
| |
(i)
|
Assignment. No
assignment of this Agreement by Depositor and/or Beneficiary or any
rights
or obligations of Depositor and/or Beneficiary under this Agreement
is
permitted without the written consent of Iron Mountain, which shall
not be
unreasonably withheld or delayed. No assignment of this Agreement
by Iron
Mountain or any rights or obligations of Iron Mountain under this
Agreement is permitted without the written consent of Depositor and
Beneficiary, which shall not be unreasonably withheld or
delayed.
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(j)
|
Severability.
In the event any of the terms of this Agreement become or are declared
to
be illegal or otherwise unenforceable by any court of competent
jurisdiction, such term(s) shall be null and void and shall be deemed
deleted from this Agreement. All remaining terms of this Agreement
shall
remain in full force and effect. Notwithstanding the foregoing, if
this
paragraph becomes applicable and, as a result, the value of this
Agreement
is materially impaired for either Party, as determined by such Party
in
its sole discretion, then the affected Party may terminate this Agreement
by notice to the others.
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| |
(k)
|
Independent
Contractor Relationship.
Depositor and Beneficiary understand, acknowledge, and agree that
Iron
Mountain’s relationship with Depositor and Beneficiary will be that of an
independent contractor and that nothing in this Agreement is intended
to
or should be construed to create a partnership, joint venture, or
employment relationship.
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(l)
|
Attorneys'
Fees.
In any suit or proceeding between the Parties relating to this Agreement,
the prevailing Party will have the right to recover from the other(s)
it’s
costs and reasonable fees and expenses of attorneys, accountants,
and
other professionals incurred in connection with the suit or proceeding,
including costs, fees and expenses upon appeal, separately from and
in
addition to any other amount included in such judgment. This provision
is
intended to be severable from the other provisions of this Agreement,
and
shall survive and not be merged into any such
judgment.
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(m)
|
No
Agency.
No Party has the right or authority to, and shall not, assume or
create
any obligation of any nature whatsoever on behalf of the other Parties
or
bind the other Parties in any respect
whatsoever.
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| |
(n)
|
Disputes.
Any
dispute, difference or question relating to or arising among any
of the
Parties concerning the construction, meaning, effect or implementation
of
this Agreement or any Party hereof will be submitted to, and settled
by
arbitration by a single arbitrator chosen by the New York Regional
Office
of the American Arbitration Association in accordance with the Commercial
Rules of the American Arbitration Association. The arbitrator shall
apply
New York law. Unless otherwise agreed by the Parties, arbitration
will
take place in New York City, New York, U.S.A. Any court having
jurisdiction over the matter may enter judgment on the award of the
arbitrator. Service of a petition to confirm the arbitration award
may be
made by regular mail or by commercial express mail, to the attorney
for
the Party or, if unrepresented, to the Party at the last known business
address. If however, Depositor and/or Beneficiary refuse to submit
to
arbitration, the matter shall not be submitted to arbitration and
Iron
Mountain may submit the matter to any court of competent jurisdiction
for
an interpleader or similar action. Unless
adjudged otherwise, any
costs of arbitration incurred by Iron Mountain, including reasonable
attorney’s fees and costs, shall be divided equally and paid by Depositor
and Beneficiary.
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(o)
|
Regulations.
All Parties are responsible for and warrant - to the extent of their
individual actions or omissions - 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 Material may be delivered in accordance with
the
provisions of this Agreement.
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| |
(p)
|
Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which shall be an original, but all of which together shall constitute
one
instrument.
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(q)
|
Survival.
Sections 6 (Term and Termination), 7 (General Indemnity), 8 (Warranties),
10 (Confidential Information), 11 (Limitation of Liability), 12
(Consequential Damages Waiver), and 13 (General) of this Agreement
shall
survive termination of this Agreement or any Exhibit attached
hereto.
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Note:
Signature blocks and Authorized Persons/Notices Table Follow on The Next
Page
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15
The
Parties agree that this Agreement is the complete agreement between the Parties
hereto concerning the subject matter of this Agreement and replaces any prior
or
contemporaneous oral or written communications between the Parties. There are
no
conditions, understandings, agreements, representations, or warranties,
expressed or implied, which are not specified herein. Each
of
the Parties herein represents and warrants that the execution, delivery, and
performance of this Agreement has been duly authorized and signed by a person
who meets statutory or other binding approval to sign on behalf of its business
organization as named in this Agreement. This
Agreement may only be modified by mutual written agreement of the
Parties.
Note:
If
contracting electronically via the online portal, clicking the "I Accept" button
displayed as part of the ordering process, evidences agreement to the preceding
terms and conditions (the ‘Agreement”).
If
you are entering into this Agreement via the online portal on behalf of a
company or other legal entity, you represent that you have the authority to
bind
such entity to these terms and conditions, in which case the terms "you" or
"your" shall refer to such entity. If you do not have such authority, or if
you
do not agree with these terms and conditions, you must select the "I Decline"
button.
| | | |
| | BSI2000,
INC. (Depositor) THE
NEW SYTRON, INC. (Beneficiary) |
|
|
|
|
| Date: | By: | |
| |
Xxxx
Xxxxxx
President
|
| Email
Address: | |
| | | |
| | THE
NEW SYTRON, INC. (Beneficiary) |
|
|
|
|
| | By: | |
| |
Xxxxx
Xxxxxxx
President
|
| Email
Address: | |
| | | |
| | IRON
MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC. |
|
|
|
|
| Date: | By: | |
| |
|
| Email
Address: xxxxxxxxxxxx@xxxxxxxxxxxx.xxx | |
Authorized
Persons/Notices Table
Please
provide the name and contact information of the Authorized Persons under this
Agreement. All Notices will be sent to these individuals at the addresses set
forth below.
DEPOSITOR
Authorized
Person(s)/Notices Table
Please
provide the name(s) and contact information of the Authorized Person(s) under
this Agreement. All Notices will be sent electronically and/or through regular
mail to the appropriate address set forth below.
|
Print
Name:
|
Xxxx
Xxxxxx
| |
Print
Name:
| |
|
Title:
|
President
| |
Title:
| |
|
Email
Address
|
xxxxxxx@xxx0000.xxx
| |
Email
Address
| |
|
Street
Address 1
|
00000
Xxxx Xxxxxx Xxx., Xxx. X000
| |
Street
Address 1
| |
|
Province/City/State
|
Lakewood,
CO
| |
Province/City/State
| |
|
Postal/Zip
Code
|
80215
| |
Postal/Zip
Code
| |
|
Phone
Number
|
000-000-0000
| |
Phone
Number
| |
|
Fax
Number
|
000-000-0000
| |
Fax
Number
| |
Page
7 of
15
BENEFICIARY
Authorized
Person(s)/Notices Table
Please
provide the name(s) and contact information of the Authorized Person(s) under
this Agreement. All Notices will be sent electronically and/or through regular
mail to the appropriate address set forth below.
|
Print
Name:
|
Xxxxx
Xxxxxxx
| |
Print
Name:
| |
|
Title:
|
President
| |
Title:
| |
|
Email
Address
|
Xxxxx
Xxxxxxx (Xxxx@xxxxxxxxxxx.xxx)
| |
Email
Address
| |
|
Street
Address 1
|
c/o
Mask Systems
00000
Xxxxxxxxx Xxxxx
| |
Xxxxxx
Address 1
| |
|
Province/City/State
|
Moorpark,
CA
| |
Province/City/State
| |
|
Postal/Zip
Code
|
93021
| |
Postal/Zip
Code
| |
|
Phone
Number
|
(000)
000-0000 (X100)
| |
Phone
Number
| |
|
Fax
Number
|
(000)
000-0000
| |
Fax
Number
| |
IRON
MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
All
notices should be sent to xxxxxxxxxxxx@xxxxxxxxxxxx.xxx
OR Iron
Mountain, Attn: Contract Administration, 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx, 00000, XXX.
Page
8 of
15
Exhibit
A Escrow
Service Work Request
Deposit
Account Number:
____________________
|
Service
Check
box (es) to order service
|
Service
Description
|
One-Time
Fees
|
Annual
Fees
|
Paying
Party
Check
box to identify the Paying Party for each service
below.
|
|
x Add
and
Manage New Escrow Account
|
Iron
Mountain will open a new escrow deposit account that includes
a minimum of
one (1) Depositor and one (1) complete set of Deposit Material.
All
Deposit Material will be securely stored in controlled vaults
that are
owned and/or operated by Iron Mountain. Account services include
unlimited
deposits, electronic vaulting, access to Iron Mountain Connect™ Escrow
Management Center for secure online account management and submission
of
electronic Work Requests, and secure destruction of deposit materials
upon
account termination.
Iron
Mountain will assign a Client Manager for each escrow account.
These
Managers will provide client training from time to time to facilitate
secure Internet access to escrow account(s). Assigned Managers
will also
ensure timely fulfillment of client Work Requests (e.g., deposit
updates,
new beneficiary enrollment) and communication of status.
|
$1,050
|
$950
|
X
Depositor
- OR -
X
Beneficiary
|
|
o
Add Deposit
Tracking Notification
|
Iron
Mountain will send periodic notices to Depositor and/or Beneficiary
related to Deposit Material as specified within the terms of
the
agreement
|
N/A
|
$350
|
o Depositor
- OR -o Beneficiary
|
|
o
Add Beneficiary
|
Iron
Mountain will fulfill a Work Request to add a new Beneficiary
to an escrow
account, where possible, and provide notice as appropriate to
all relevant
Parties.
|
N/A
|
$650
|
o Depositor
- OR -o Beneficiary
|
|
x
Add Initial
Verification of Deposit Material
|
Iron
Mountain will fulfill a Work Request to perform initial Verification
Services, which includes a final report sent to Client, on Deposit
Material to ensure consistency between Depositor’s representations (i.e.,
Exhibit B and Supplementary Questionnaire) and stored Deposit
Material.
For a more detailed description see Verification Services Options
below.
|
N/A
|
$800
|
X
Depositor
- OR -
X
Beneficiary
|
|
o
Add Custom Verification of Deposit
Material
|
Iron
Mountain will fulfill a Work Request to perform one or more levels
of
custom Verification Services, which includes a final report sent
to
Client, on Deposit Material. Client and Iron Mountain will agree
on a
custom Statement of Work (“SOW”) prior to the start of fulfillment. For a
more detailed description see Verification Services Options
below.
|
Custom
Quote Based on SOW
|
Custom
Quote Based on SOW
|
o Depositor
-
OR
-
o Beneficiary
|
|
o
Add Dual
Vaulting
|
Iron
Mountain will fulfill a Work Request to store deposit materials
in one
additional location as defined within the Service Agreement.
Duplicate
storage request may be in the form of either physical media or
electronic
storage.
|
N/A
|
$500
|
o Depositor
- OR -o Beneficiary
|
|
o
Release Deposit
Material
|
Iron
Mountain will process a Work Request to release Deposit Material
by
following the specific procedures defined in Exhibit C “Release of Deposit
Materials” the Escrow Service Agreement.
|
$500
|
N/A
|
o Depositor
- OR - o Beneficiary
|
|
o
Add Custom
Services
|
Iron
Mountain will provide its Escrow Expert consulting based on a
custom SOW
mutually agreed to by all Parties.
|
$150/hour
|
N/A
|
o Depositor
- OR - o Beneficiary
|
|
o
Delete
Account
|
Iron
Mountain will fulfill a Work Request to terminate an existing
escrow
account by providing notice to all Parties to the Agreement,
removing
Deposit Material from the vault and then either securely destroying
or
returning the Deposit Material via commercial express mail carrier
as
instructed. All accrued Services Fees must be collected by Iron
Mountain
prior to completing fulfillment to terminate an existing escrow
account.
|
No
Charge
|
No
Charge
|
No
Charge
|
|
o
Replace/Delete Deposit
Materials
|
Iron
Mountain will replace/delete deposit material in accordance with
the terms
of the agreement. Materials will be returned as directed by depositor
or
destroyed using Iron Mountain Secure Shredding
|
No
Charge
|
No
Charge
|
No
Charge
|
Upon
Escrow Service Agreement execution, please provide your initials below in the
appropriate location to indicate your acceptance of this Escrow Services Work
Request inclusive of agreed Services pricing and indication of which Party
is
financially responsible for payment of specific Services.
Depositor
Initials__________ Beneficiary
Initials__________
Note:
Clients may submit Work Requests electronically through their escrow account
online OR may complete this form along with any other supporting exhibits
required and email and/or fax this Work Request to their assigned Client Manager
at Iron Mountain for fulfillment.
Page
9 of
15
Verification
Services Options
| 1. |
Initial
Verification -
Consistency.
|
| 1.1. |
Iron
Mountain shall perform an initial verification (“Initial Verification”) of
the Deposit Material upon receipt of the first deposit and for each
update. To help perform this evaluation, Iron Mountain will examine
the
Exhibit B, and request that the Depositor complete an Escrow Deposit
Questionnaire. Iron Mountain will then analyze the Escrow Deposit
Questionnaire and Exhibit B, prepare and deliver a report to Depositor
and
Beneficiary containing its finding(s) and opinion(s) as to the Deposit
consistency based on the information supplied. Iron Mountain’s report will
include information regarding:
|
| 1.1.1. |
The
hardware and software configuration(s) needed to read the Deposit
Material
media associated with the Exhibit
B;
|
| 1.1.2. |
The
software needed to interpret the data read from the media (i.e. Zip,
tar,
cvs type files); and
|
| 1.1.3. |
The
hardware and software configurations needed to compile the software
product defined by the Exhibit B.
|
| 1.2. |
Iron
Mountain’s Systems Analysts will also be available to discuss the Initial
Verification’s technical consistency evaluation and other deposit
verification issues. Iron Mountain’s higher levels of verification address
issues of readability, inventory, ability to be compiled or other
testing
as requested by a Party.
|
| 2. |
Level
One (1) - Inventory.
|
| 2.1. |
This
series of verification tests provides insight into whether the necessary
information required to recreate the Depositor’s development environment
has been properly stored in escrow. These tests detect errors that
often
inhibit effective use of the escrow
deposit.
|
| 2.2. |
Steps
include:
Analyzing deposit media readability, virus scanning, developing file
classification tables, identifying the presence/absence of build
instructions, and identifying materials required to recreate the
Depositor's software development
environment.
|
| 2.3. |
Deliverables:
At
completion of testing, Iron Mountain will distribute a report to
Beneficiary detailing Iron Mountain’s investigation. This report will
include build instructions, file classification tables and listings.
In
addition, the report will list required software development materials,
including, without limitation, required source code languages and
compilers, third-Party software, libraries, operating systems, and
hardware, as well as Iron Mountain’s analysis of the deposit. When
identifying materials required to re-create Depositor’s software
development environment, Iron Mountain will rely on information provided
in Depositor’s completed questionnaire (obtained via a Iron Mountain
verification representative) and/or information gathered during Iron
Mountain’s testing experience.
|
| 3. |
Level
Two (2) - Build.
|
| 3.1. |
This
series of tests includes a standard effort to compile the Deposit
Material
and build executable code.
|
| 3.2. |
Steps
include:
Recreating the Depositor’s software development environment, compiling
source files and modules, linking libraries and recreating executable
code.
|
| 3.3. |
Deliverables:
Iron Mountain will provide a report detailing the steps necessary
to
recreate the software/hardware development environment, problems
encountered with testing, and Iron Mountain’s analysis of the
deposit.
|
| 4. |
Level
Three (3) - Validation.
|
| 4.1. |
Level
III verification consists of testing the functionality of the compiled
Deposit Material (in a production setting or similar environment)
and can
be accomplished through one of the following three
options:
|
| 4.1.1. |
Option
A
-
With the Depositor’s approval, executables created by Iron Mountain during
Level II testing are provided to the Beneficiary for functionality
testing.
|
| 4.1.2. |
Option
B
-
The Beneficiary provides Iron Mountain with a copy of its licensed
executables. Iron Mountain compares the executables created during
Level
II testing with the licensed executables and provides a comparison
report
to all Parties.
|
| 4.1.3. |
Option
C
-
Iron Mountain recreates the runtime environment for the licensed
technology and installs the executables created during the Level
II
testing into that environment. (The environment is generally “scaled down”
from the actual live environment.) Iron Mountain then runs test scripts
supplied by the Beneficiary and provides a report of the test results
to
all Parties. This may require Depositor
approval.
|
| 4.1.4. |
Services
may be provided by Iron Mountain or individuals or organizations
employed
by or under contract with Iron Mountain, at the discretion of Iron
Mountain.
|
Page
10
of 15
Exhibit
B
Deposit
Material Description
Company
Name: ______________________________________Escrow Account
Number:____________________
Deposit Name
________________________ and
Deposit Version _____
(Deposit
Name will appear in account history reports)
Deposit
Media (Please Label All Media with the Deposit Name Provided
Above)
|
Media
Type
|
Quantity
| |
Media
Type
|
Quantity
|
|
o CD-ROM
/
DVD
| | |
o 3.5”
Floppy
Disk
| |
|
o DLT
Tape
| | |
o Documentation
| |
|
o DAT
Tape
| | |
o Hard
Drive /
CPU
| |
| | | |
o Circuit
Board
| |
| |
Total
Size of Transmission
(specify
in bytes)
|
#
of Files
|
|
o Internet
File Transfer
| | |
|
o Other
(please describe below):
|
| |
Deposit
Encryption (Please
check either “Yes” or “No” below and complete as appropriate)
Is
the media or are any of the files encrypted? oYes
or oNo
If
yes, please include any passwords and decryption tools description below. Please
also deposit all necessary encryption software with this
deposit.
|
Encryption
tool name
| |
Version
|
|
Hardware
required
|
| |
|
Software
required
|
| |
|
Other
required information
|
| |
Deposit
Certification (Please
check the box below to Certify and Provide your Contact
Information)
|
o I
certify
for Depositor that the above described Deposit Material has
been
transmitted electronically or sent via commercial express mail
carrier to
Iron Mountain at the address below.
|
o Iron
Mountain has inspected and accepted the above described Deposit
Material
either electronically or physically. Iron Mountain will notify
Depositor
of any discrepancies.
|
|
Name:
|
Name:
|
|
Date:
|
Date:
|
|
Email
Address:
| |
|
Telephone
Number:
| |
|
Fax
Number:
| |
Note:
If Depositor is physically sending Deposit Material to Iron Mountain, please
label all media and mail all Deposit Material with the appropriate Exhibit
B via
commercial express carrier to the following address:
Iron
Mountain Intellectual Property Management, Inc.
Attn:
Vault Administration
0000
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Page
11
of 15
Exhibit
C
Release
Of Deposit materials
Deposit
Account Number:
____________________
Iron
Mountain will use the following procedures to process any Beneficiary Work
Request to release Deposit Material.
1. Release
Conditions.
Depositor and Beneficiary agree that Iron Mountain will provide notice via
electronic mail and regular mail to the Depositor if a Beneficiary under this
Agreement submits a Deposit Material release Work Request based on one or more
of the following conditions (defined as “Release
Conditions”):
(i)
an
"Event of Default" exists under the Security
Agreement dated as of August ___, 2005 (the "Security
Agreement")
between Depositor and Beneficiary;
or
(ii)
Failure of the Depositor to function as a going concern or operate in the
ordinary course; or
(iii)
Depositor is subject to voluntary or involuntary bankruptcy.
2. Release
Work Request.
A
Beneficiary may submit a Work Request to Iron Mountain to release the Deposit
Material covered under this Agreement. Iron Mountain will send a written notice
of this Beneficiary Work Request within two (2) business days to the authorized
Depositor representative(s) notice via electronic mail, facsimile and regular
mail.
3. Contrary
Instructions.
From
the date Iron Mountain sends written notice of the Beneficiary Work Request
to
release Deposit Material covered under this Agreement via electronic mail,
facsimile and regular mail, Depositor representative(s) shall have ten (10)
business days to deliver to Iron Mountain contrary instructions ("Contrary
Instructions"). Contrary Instructions shall mean the written representation
by
Depositor that a Release Condition has not occurred or has been cured. Contrary
Instructions shall be on company letterhead and signed by an authorized
Depositor representative. Upon receipt of Contrary Instructions, Iron Mountain
shall send a copy to an authorized Beneficiary representative by commercial
express mail. Additionally, Iron Mountain shall notify both Depositor
representative(s) and Beneficiary representative(s) that there is a dispute
to
be resolved pursuant to the Disputes provisions of this Agreement. Iron Mountain
will continue to store Deposit Material without release pending (i) joint
instructions from Depositor and Beneficiary that accept release of Deposit
Material; or (ii) dispute resolution pursuant to the Disputes provisions of
this
Agreement; or (iii) receipt of an order from a court of competent
jurisdiction.
4. Release
of Deposit Material.
If Iron
Mountain does not receive Contrary Instructions from an authorized Depositor
representative, Iron Mountain is authorized to release Deposit Material to
the
Beneficiary or, if more than one Beneficiary is registered to the deposit,
to
release a copy of Deposit Material to the Beneficiary. Iron Mountain is entitled
to receive any uncollected Service fees due Iron Mountain from the Beneficiary
before fulfilling the Work Request to release Deposit Material covered under
this Agreement. This Agreement will terminate upon the release of Deposit
Material held by Iron Mountain.
Page
12
of 15
EXHIBIT
Q
Escrow
Deposit Questionnaire
Introduction
From
time
to time, technology escrow beneficiaries may exercise their right to perform
verification services. This is a service that Iron Mountain provides
for the
purpose of validating relevance, completeness, currency, accuracy and
functionality of deposit materials.
Purpose
of Questionnaire
In
order
for Iron Mountain to determine the deposit material requirements and to quote
fees associated with verification services, a completed deposit questionnaire
is
requested. It is the responsibility of the escrow depositor to complete the
questionnaire.
Instructions
Please
complete the questionnaire in its entirety by answering every question with
accurate data. Upon completion, please return the completed questionnaire to
the
beneficiary asking for its completion, or e-mail it to Iron Mountain Technology
Escrow Services to the attention of Xxxxx Xxxx at xxxxxxxxx@xxxxxxxxxxxx.xxx.
Escrow Deposit
Questionnaire
General
Description
| 1. |
What
is the general function of the software to be placed into
escrow?
|
| 2. |
On
what media will the source code be
delivered?
|
| 3. |
What
is the size of the deposit in
megabytes?
|
Requirements
for the Execution of the Software Protected by the Deposit
| 1. |
What
are the system hardware requirements to successfully execute the
software?
(memory, disk space, etc.)
|
| 2. |
How
many machines are required to completely set up the software?
|
| 3. |
What
are the software and system software requirements, to execute the
software
and verify correct operation?
|
Requirements
for the Assembly of the Deposit
| 1. |
Describe
the nature of the source code in the deposit. (Does the deposit include
interpreted code, compiled source, or a mixture? How do the different
parts of the deposit relate to each
other?)
|
| 2. |
How
many build processes are there?
|
| 3. |
How
many unique build environments are required to assemble the material
in
the escrow deposit into the deliverables?
|
Page
13
of 15
| 4. |
What
hardware is required for each build environment to compile the software?
(including memory, disk space,
etc.)
|
| 5. |
What
operating systems (including versions) are used during compilation?
Is the
software executed on any other operating
systems/version?
|
| 6. |
How
many separate deliverable components (executables, share libraries,
etc.)
are built?
|
| 7. |
What
compilers/linkers/other tools (brand and version) are necessary to
build
the application?
|
| 8. |
What,
if any, third-party libraries are used to build the
software?
|
| 9. |
How
long does a complete build of the software take? How much of that
time
requires some form of human interaction and how much is
automated?
|
| 10. |
Do
you have a formal build document describing the necessary steps for
system
configuration and compilation?
|
| 11. |
Do
you have an internal QA process? If so, please give a brief description
of
the testing process.
|
| 12. |
Please
list the appropriate technical person(s) Iron Mountain may contact
regarding this set of escrow deposit
materials.
|
Please
provide your contact information below:
|
Name:
| |
|
Telephone:
| |
|
Company:
| |
|
Address:
| |
|
City,
State
|
PostalCode:
|
|
Country:
| |
|
E-mail:
| |
For
additional information about Iron Mountain Technical Verification Services,
please contact
Xxxxx
Xxxx at 978-667-3601
ext. 100 or
by
e-mail at mailto:
xxxxxxxxx@xxxxxxxxxxxx.xxx.
xxx.xxxxxxxxxxxx.xxx
Page
14
of 15
