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SOURCE CODE TRUST AGREEMENT



This Source Code Trust Agreement (the Agreement) is effective [DATE],


BETWEEN:  [YOUR COMPANY NAME] (the Software Publisher), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

  [YOUR COMPLETE ADDRESS]


AND:  [COMPANY NAME] (the "Licensee"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [COMPLETE ADDRESS]


AND:   [COMPANY NAME] (the "Trustee"), a company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [COMPLETE ADDRESS]



BACKGROUND

In partial consideration of Licensee agreeing to enter into a license agreement (the "License Agreement") for the use of a computer software program [developed and] owned by the Software Publisher known as [SPECIFY], the Software Publisher has agreed to enter into this agreement which will make available to Licensee the source code of the Software and certain related materials required for the maintenance and support of the Software (the "Trust Materials", as more particularly described in Article One) in certain circumstances as more particularly described herein.

Licensee acknowledges and agrees that, as an integral part of maintaining the value of the trade secrets and other proprietary interests associated with the Software, the Licensee's access to, and use of, the Trust Materials shall be expressly limited as more particularly described herein.

The Software Publisher acknowledges and agrees that the Software is necessary to the Licensee in its business and that the Licensee has a legitimate right to have access to, and the use of, the Trust Materials in the specific manner contemplated herein to maintain and support the Software.

As between them, the Software Publisher and the Licensee acknowledge that this agreement reflects a reasonable balance of their respective needs and concerns respecting access to, and the use of, the Trust Materials.

The Software Publisher and the Licensee candidly acknowledge their divergent interests regarding Licensee's access to, and use of, the Trust Materials and further acknowledge that they may disagree as to the disclosure and use of the Trust Materials. Accordingly, they have provided for an abbreviated arbitration process, which, while not unduly delaying Licensee's access and use thereof, will ensure that the disclosure and use of the Trust Materials is granted only in appropriate circumstances.

The foregoing representations and statements of fact are made by Software Publisher and Licensee and not by the Trustee.

The Software Publisher and the Licensee have requested that the Trustee, and the Trustee has agreed to, assist in the arrangements as set forth in this agreement.

IN CONSIDERATION of the foregoing Background, the mutual covenants in this agreement, and other good and valuable consideration (the receipt and sufficiency of which are acknowledged), the parties agree as follows:


INTERPRETATION

Definitions

In this Agreement, except where the context or subject matter is inconsistent therewith, the following terms shall have the following meanings:

"Agreement" means this Source Code Trust Agreement and all schedules annexed to this agreement as the same may be amended from time to time in accordance with the provisions hereof; "hereof", "hereto" and "hereunder" and similar expressions refer to this Agreement and not to any particular article or section; and "Article" or "Section" refers to the specified article or section of this Agreement;

"Business Day" means any day, other than a Saturday, Sunday, statutory or civic holiday in [STATE/PROVINCE], [COUNTRY].

"Court" means the [STATE/PROVINCE] Court (General Division) or any other judicial court of either [COUNTRY] or provincial jurisdiction within [COUNTRY];

"Deposit" means either an Initial Deposit or Subsequent Deposit;

"Event of Default" means any one or more of the events set out in Section 6.1;

"Initial Deposit" has the meaning attributed to it in Section 4.1;

"License Agreement" means the license agreement dated, [YEAR] in which the Software Publisher licensed the use of the Software to the Licensee, as amended from time to time in accordance with its terms, a copy of which is attached as Schedule A hereto;

"Licensee's Certificate" means a certificate in the form attached as Schedule B hereto executed by any two senior officers of the Licensee;

"No Change Certificate" means a certificate in the form attached as Schedule C hereto executed by any two senior officers of the Software Publisher;

"Notice Period" means the [NUMBER] Business Day period of time commencing on the date the Trustee notifies the Software Publisher that an Event of Default has occurred;

"Parties" means the Software Publisher, the Trustee and the Licensee collectively and "Party" means any one of them;

"Person" includes an individual, body corporate, partnership, joint venture, trust, unincorporated organization, the Crown or any agency or instrumentality thereof or any other entity recognized by law;

"Software" means, at any time, that version of the computer software then licensed to the Licensee by the License Agreement, including that version of any associated compiler programs, utility programs and library functions, including all corrections, changes, improvements and enhancements thereto as more particularly described in Schedule D hereto;

"Software Publisher's Certificate" means a certificate in the form attached as Schedule E hereto executed by any [NUMBER] senior officers of the Software Publisher; 

"Source Code" means a complete copy of the source code version of the Software, appropriately labeled to denote the version or release thereof, and the currency date thereof, in each of:

machine-readable form on machine-readable storage medium suitable for long term storage and compatible with the computer system then being used by the Licensee and which, when compiled, will produce the object code version of the Software; and

human-readable form with annotations in the (SPECIFY) language on bond paper suitable for long term archival storage; 

"Subsequent Deposit" has the meaning attributed to it in Section 4.2;

"System Documentation" means a complete copy, [SPECIFY LANGUAGE], printed on bond paper, suitable for long term archival storage, and appropriately labeled to describe the contents thereof, of all applicable documentation and other explanatory materials including programmer's notes, technical or otherwise, for the Software as may be required by the Licensee, using a competent computer programmer possessing ordinary skills and experience, to further develop, maintain and operate the Software without further recourse to the Software Publisher including, but not necessarily limited to, general flow-charts, input and output layouts, field descriptions, volumes and sort sequence, data dictionary, file layouts, processing requirements and calculation formula and the details of all algorithms and which shall be deemed to include those materials, as revised from time to time, set out in Schedule F; and

"Trust Materials" means, at any particular time, those copies of the Source Code and System Documentation that are deposited in trust with the Trustee hereunder.

Schedules

The following are the schedules attached to and forming part of this Agreement:

Schedule A  -  License Agreement

Schedule B  -  Licensee's Certificate

Schedule C  -  No Change Certificate

Schedule D  -  Description of Software

Schedule E  -  Software Publisher's Certificate

Schedule F  -  Description of System Documentation

Schedule G  -  Environmental Parameters

Schedule H  -  Dispute Resolution Procedure




Headings

The titles of the articles and paragraphs of this Agreement are inserted solely for convenience, are not a part of this Agreement, and do not in any way limit or amplify the terms of this Agreement.

Successors and Assigns

This Agreement shall be binding upon and shall enure to the benefit of the parties and their respective successors and permitted assigns.

Governing [YOUR COUNTRY LAW]

This Agreement shall be construed and interpreted in accordance with the [YOUR COUNTRY LAW] of the Province of [STATE/PROVINCE].

Entire Agreement

This Agreement, together with the schedules attached hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions between the parties, whether oral or written. No supplement, modification or termination of this Agreement shall be binding, unless executed in writing by the parties.

Severability of Terms

If any term of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable or shall terminate in the normal course, the remainder of this Agreement or the application of such term to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and each term of this Agreement shall be separately valid and enforceable to the fullest extent permitted by [YOUR COUNTRY LAW].

Waiver

No provisions of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent excusing the breach shall be in writing and signed by the party to be charged with such waiver or consent. A waiver by a party of any provision of this Agreement shall not be construed as a waiver of a further breach of the same covenant or condition.


SETTLEMENT OF TRUST

Settlement of Trust

Software Publisher transfers to the Trustee in trust all legal title in and to the physical copies of the Trust Materials provided to Trustee from time to time in accordance with the terms of this Agreement. It is acknowledged by the Parties that such transfer by Software Publisher to Trustee under this Section is not intended to, nor does it, transfer any intangible rights in the Trust Materials. The Trustee agrees to hold the Trust Materials in trust for the Licensee and the Software Publisher as provided in this Agreement.

Duty to Store

Except as otherwise provided herein, the Trustee shall hold and preserve the Trust Materials in a safe and secure manner appropriate for valuable assets similar in nature to the Trust Materials in a separate container, appropriately segregated from materials which do not form part of the subject matter of this Agreement at a location within the boundaries of [Metropolitan [STATE/PROVINCE]]. [The Trustee agrees that both the temperature and the humidity of the environment of the storage area are controlled within the parameters set out in Schedule G, and agrees to bear all risks of damage to the Trust Materials arising from any lack of such control.]

Duty of Confidentiality

The Trustee recognizes and agrees that the Trust Materials are the valuable assets and proprietary and confidential information of the Software Publisher and agrees to hold them in strict confidence and to take all appropriate and reasonable actions to preserve their confidentiality. Except as expressly provided for in this Agreement, the Trustee agrees that it will not use, copy or disclose the Trust Materials to any Person, in any manner, without the prior written consent of the Software Publisher.


GRANT OF LICENSE

Grant of License

The Software Publisher grants to the Licensee a personal, non-exclusive, non-transferable license to use the Trust Materials solely to maintain and support the Software for its own internal use. This license, which shall remain in effect as long as the Licensee has the right to use the Software pursuant to the License Agreement or otherwise and which shall survive the termination of this Agreement, shall be restricted to allowing the Licensee to:

make only those copies of the Trust Materials that the Licensee reasonably requires to maintain and update the Software;

make revisions to the Trust Materials;

recompile versions of the Software from the Trust Materials, which recompiled versions shall be deemed to be Software and subject to the terms of the License Agreement; and

reveal the Trust Materials, or any part thereof, only to agents, employees or independent contractors of the Licensee as reasonably required in order to use, maintain, implement, correct or update the Software.

The Licensee agrees to use the Trust Materials only for its own use and to obtain from any third party to whom disclosure of this information is made pursuant to subparagraph (d) of this Section, a covenant not to further disclose or make use of the Trust Materials in any manner whatsoever except as provided in this Section. Upon written request by the Software Publisher, Licensee shall set out in writing the number of copies of the Trust Materials made and the location of each such copy.


INITIAL AND SUBSEQUENT DEPOSITS OF TRUST MATERIALS

Initial Deposit

Within [NUMBER] Business Days of the execution of this Agreement by the Parties, the Software Publisher shall notify each of the Licensee and the Trustee that the Trust Materials are available for deposit with the Trustee and within [NUMBER] Business Days of providing such notice, shall deposit (being the "Initial Deposit") the Trust Materials with the Trustee together with a Software Publisher's Certificate.  

Subsequent Deposits

In addition to the Initial Deposit, the Software Publisher shall make subsequent deposits (each being a "Subsequent Deposit") with the Trustee of a complete set of the then-current Trust Materials (together with an appropriate Software Publisher's Certificate) as follows:

within [NUMBER] Business Days after making any material change to either the Software or the System Documentation; 

every [how many] months for as long as this Agreement remains in force (unless the Software Publisher has not made any change to the Software or System Documentation since the last Deposit, in which case the Software Publisher shall deliver a No Change Certificate to the Trustee instead of delivering the Trust Materials); and

within [NUMBER] Business Days after the Licensee reasonably requests that a Subsequent Deposit be made.

The Software Publisher shall promptly notify the Licensee and the Trustee each time a material change is made to the Software or System Documentation. The Trustee, however, shall not be responsible for determining whether the Software Publisher has an obligation to deliver Trust Materials or for enforcing that obligation. The Software Publisher shall provide the Trustee and the Licensee with [NUMBER] Business Days prior written notice of any Subsequent Deposit.

Trust Materials Held by the Trustee

The Trustee shall promptly notify the Licensee of the Initial Deposit and of all Subsequent Deposits and will provide the Licensee with a copy of the applicable Software Publisher's Certificate.  Subject to notice from the Licensee to the contrary, the Trustee shall continue to store those Trust Materials provided with:

the most recent Deposit;

the second most recent Deposit; and

the Deposit most recently verified pursuant to Section 5.1 of this Agreement, if different from Section 4.3(a) or (b).

In respect of the Trust Materials provided with any other Deposit, the Trustee shall erase [and then destroy all computer tapes, discs and other magnetic and otherwise erasable media] and destroy all materials, constituting such Deposit. The Trustee shall then provide to each of Licensee and Software Publisher, an appropriate officer's certificate verifying that all such materials in such Deposit have been destroyed.

Form of Trust Materials

Notwithstanding that Trust Materials were provided in previous Deposits, each Deposit shall consist of:

the complete Source Code; and

the complete System Documentation

Representations and Warranties Re Trust Materials

The Software Publisher acknowledges that the purpose of this Agreement is to provide the Licensee, in the Event of Default, with full and timely disclosure of the Trust Materials so that the Licensee may provide for its own maintenance and support independent of the Software Publisher. Accordingly, the Software Publisher represents and warrants that:

the Trust Materials are complete and otherwise accurately reflect the most current version of the Software used by the Licensee;

the Trust Materials incorporate all changes to the Trust Materials made since the last Deposit to the Trustee under the Agreement; 

the Trust Materials are sufficient to allow the Licensee, with the assistance of a competent software maintenance professional, possessing ordinary skills and experience, to further develop, maintain and operate the Software without further recourse to the Software Publisher;

the Trust Materials, including the Source Code, do not contain any clock, timer, counter, or other limiting or disabling code, design or routine that would cause the Software to be erased, made inoperable or otherwise rendered incapable of performing in accordance with the applicable specifications as set out in the License Agreement or would prevent or prohibit or otherwise diminish the use of the Trust Materials by Licensee for the purpose of providing for its own maintenance and support or otherwise limit or restrict Licensee's ability to use or copy the Software after a specific or random number of uses or copies, or after the lapse or occurrence of any similar triggering prompt or due to the use of a central processing unit (a "CPU") other than the CPU specified, if any, in the License Agreement; and;

the title to the Trust Materials is free of all liens, charges and other encumbrances.

The Software Publisher further represents and warrants that it has the legal right to enter into this Agreement and to fulfill its obligations hereunder.


VERIFICATION AND PERIODIC AUDIT

Verification by the Software Publisher

At any time, whether before or after the provision of a Deposit, the Licensee may request that the Software Publisher verify that the Trust Materials held, or to be held, by the Trustee correspond to the requirements set out in Section 4.5. The Licensee shall request such verification by sending written notice to both the Software Publisher and the Trustee specifying:

the date and time (on normal business days and during normal business hours) when it desires the verification to be conducted; and 

the location within [STATE/PROVINCE] at which the verification is to take place.

The Licensee shall deliver such notice at least [NUMBER] Business Days prior to the proposed date of such verification. At the date, time and location specified in the notice, the Trustee shall deliver the most recent Deposit to the possession of both the Software Publisher and the Licensee. In the presence of the Software Publisher and the Trustee, the Licensee shall perform (or at its option require the Software Publisher to perform) verification procedures to determine that these Trust Materials correspond to the Software in the form then licensed to the Licensee. 
Upon completion of the verification, the Software Publisher shall mark as verified the Trust Materials that the Licensee has determined correspond to the Software and shall return them to the Trustee. The Software Publisher may take all reasonable steps to ensure that all copies of the Trust Materials created during the verification process are purged from the computer equipment on which the verification process took place. The Licensee agrees not to retain any of the Trust Materials after the verification process has been completed. The Licensee shall pay all of the reasonable expenses of the Trustee and the Software Publisher incurred as a result of its request for verification unless the Trust Materials are found to be incomplete or otherwise deficient in some material respect in which event the Software Publisher shall pay the expenses of the Trustee and the Licensee, and must forthwith take those actions set out in Section 5.2.

Remedial Actions

If the Licensee determines, acting reasonably, that the Trust Materials are incomplete or are otherwise unsatisfactory, then the Software Publisher shall, at its own expense, promptly take such actions as are reasonably required so as to comply with any reasonable request by the Licensee to cause the Trust Materials to conform with the requirements of this Agreement. Upon the completion of such actions the Software Publisher shall submit the Trust Materials to the Licensee for verification in accordance with the procedures set out in Section 5.1. The Software Publisher shall be responsible for all reasonable expenses incurred by the Licensee and the Trustee in respect of such verification.

Reliance Not Affected

Notwithstanding the carrying out of verification as contemplated in this Article [NUMBER], the Software Publisher shall continue to be bound by, and Licensee shall continue to rely upon, those representations and warranties set out in Section 4.5.


RELEASE OF TRUST MATERIALS

Event of Default

Each of the following occurrences shall constitute an "Event of Default":

The Software Publisher fails to provide maintenance and support for the Software as required in the License Agreement without cause justifiable under the License Agreement,

The Software Publisher ceases doing business as a going concern in respect of the Software; 

Any event or circumstance occurs which demonstrates with reasonable certainty the inability or unwillingness of the Software Publisher to fulfill its obligations to the Licensee under the License Agreement, this Agreement or any software maintenance or modification agreement materially affecting the Software, between the Software Publisher and the Licensee; or

the Software Publisher provides its written consent to either the Licensee or the Trustee for the release of the Trust Materials to Licensee.

Notification of Default

If the Licensee considers that an Event of Default has occurred, the Licensee may send a Licensee's Certificate to the Trustee setting out the particulars of such Event of Default. The Trustee shall then forthwith deliver to the Software Publisher, by courier or by hand, 

a copy of the certificate; and 

a notice stating that unless the Software Publisher exercises its rights under Section 6.3 within [NUMBER] Business Days of the giving of such notice, the Trustee will deliver the Trust Materials to the Licensee.

Contesting of Default

If the Software Publisher, acting in good faith, wishes to contest that an Event of Default has occurred, the Software Publisher must deliver an affidavit denying that such Event of Default has occurred to the Trustee and the Licensee before the Notice Period expires. If the Software Publisher does so, the Trustee will not release the Trust Materials to either the Licensee or the Software Publisher except (i) in accordance with a final decision of the arbitrator as provided in Article Ten and Schedule H, or (ii) upon receipt of an agreement duly executed by authorized officers of the Software Publisher and the Licensee, authorizing the release of the Trust Materials to either the Licensee or the Software Publisher.

Delivery of Trust Materials to the Licensee

Unless the Software Publisher delivers to the Trustee and the Licensee the affidavit described in Section 6.3 before the expiry of the Notice Period, or, if such affidavit is delivered, the matter is otherwise resolved in accordance with Section 6.3, the Trustee shall deliver the Trust Materials and the Software Publisher's Certificate pertaining to them to the Licensee once the Licensee has paid the Trustee any outstanding amounts payable to the Trustee under this Agreement together with the Trustee's charge for delivering the Trust Materials. 

Upon such delivery, the Trustee shall transfer all legal title to the physical copies of the Trust Materials to the Licensee at which time this Agreement shall terminate. The Trustee shall have no other obligation or responsibility to the Licensee in respect of the Trust Materials.


THE TRUSTEE

Indemnity

The Licensee agrees to indemnify the Trustee and save it harmless from each claim of any kind made by the Licensee or any other Person arising out of, or in respect of, this Agreement, or arising out of the fulfillment of the Trustee of its obligations hereunder, including the Trust Materials, other than any claims arising out of the negligence or willful default of the Trustee.

Limited Liability

The Trustee shall not, by reason of its execution of this Agreement assume any responsibility for any transactions between the Software Publisher and the Licensee other than for the performance of its obligations with respect to the Trust Materials in accordance with this Agreement.

Scope of Obligations Assumed

The Trustee accepts the duties in this Agreement required to be performed by the Trustee and agrees to perform the same upon the terms and conditions set forth in this Agreement. The Trustee shall have only those duties or responsibilities expressly set out in this Agreement and shall not be obligated to recognize nor have any liability or responsibility arising under any other agreement to which the Trustee is not a party, notwithstanding that reference thereto may be made herein.

Validation of Trust Materials

The Trustee shall not be responsible to verify the sufficiency, genuineness or validity of, or title to, any of the Trust Materials or any assignment thereof.

Acceptable Reliance

The Trustee may rely upon any instrument in writing that it believes in good faith to be genuine and sufficient and properly presented in accordance with the terms of this Agreement. The Trustee shall not be responsible for any action taken or omitted to be taken in accordance with the provisions of this Agreement unless caused by its negligence or willful misconduct.

Retaining Counsel

The Trustee may retain such counsel or other experts or advisers or agents as it may reasonably require for the purpose of discharging its duties hereunder and shall be entitled to be reimbursed from the Licensee for the reasonable fees and expenses of such counsel, experts, advisers and agents.

Resignation

The Trustee may resign and be discharged from all further duties and liabilities hereunder by giving [NUMBER] days prior written notice of its intention to resign as Trustee to each of the Software Publisher and the Licensee. If the Trustee resigns, a new Trustee shall be appointed by mutual agreement of the Software Publisher and the Licensee. If the Software Publisher and Licensee cannot agree, the Licensee shall appoint a trust company of its choice as the Trustee provided that such trust company has appropriate storage facilities located in [city] and agrees to store the Trust Materials there in accordance with the terms of this Agreement. If the Licensee does not make such appointment, the retiring Trustee shall apply to a judge of the [Court], on such terms as to notice as may be ordered, for the appointment of a new Trustee.

A new Trustee appointed under the provisions of this Section shall be a corporation authorized to carry on the business of a trust company in the Province of [STATE/PROVINCE]. The new Trustee shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as the Trustee, without any further assurance, conveyance, act or deed. Notwithstanding the foregoing, the Trustee shall not be released of its obligations hereunder until a new Trustee has been appointed and the Trustee has transferred the Trust Materials to such new Trustee in an appropriate manner.

Third Party Proceedings Against Trust Materials. If:

the Trust Materials become subject to an order of the Court,

the delivery of the Trust Materials is stayed or enjoined by any order of the Court,

or 

any other order, judgment or decree is made or entered by the Court affecting the Trust Materials,

the Trustee is authorized in its sole discretion to obey and comply with all orders, final judgments or decrees so entered or issued and in case the Trustee obeys and complies with any such order, final judgment or decree, the Trustee shall not be liable to any of the other parties thereto, their successors and assigns or to any other person, firm or corporation by reason of such compliance.


TRUSTEE FEES

Fees

The Licensee shall pay the Trustee the following fees for its services under this Agreement:

[AMOUNT] for receiving and handling the first deposit of Trust Materials, payable within [NUMBER] Business Days of the execution of this Agreement by the Parties;

[AMOUNT]per annum for storing the Trust Materials, payable each year in advance on [DATE]. Any partial years shall be pro-rated accordingly;

[AMOUNT]each time either the Software Publisher or the Licensee requires access to the Trust Materials, payable within [NUMBER] Business Days of the date of that access; and

[AMOUNT]upon termination of this Agreement.

Changes in Fees

The fees set out in Section 8.1 are exclusive of legal and out-of-pocket expenses that the Trustee may incur in administering this Agreement. The Licensee agrees to reimburse the Trustee for any reasonable legal and out-of-pocket expenses the Trustee incurs as a result of default under this Agreement or otherwise in connection with this Agreement, so long as the Trustee gives to the Licensee evidence of each expense over [AMOUNT]. "Out-of-pocket" expenses include, but are not limited to, postage, stationery, long distance calls, courier services, facsimile transmissions, printing of checks and microfiche.  

Upon each anniversary date of this Agreement, on at least two months' prior written notice, the Trustee may increase the charges payable hereunder during the next twelve months period. Any such increase, however, shall not exceed on a percentage basis the annual percentage change in the Consumer Price Index, all items for [STATE/PROVINCE] base year [YEAR], as published from time to time by Statistics [COUNTRY] or any successor index published by the federal government of [COUNTRY]. In no event, however, shall the fees hereunder exceed the published standard list prices for comparable services generally charged by the Trustee. All fees to be charged by the Trustee are exclusive of any value added or analogous taxes which may have been imposed at the date hereof or may be imposed in the future by any [COUNTRY] taxing authority on any or all of the services to be provided by the Trustee hereunder.

TERM AND TERMINATION

Term

This Agreement shall commence on the date of this Agreement is executed by all Parties and shall continue for such period as the License Agreement (or any replacement agreement with respect to the Software) remains in effect, unless terminated in accordance with the provisions of this Agreement.

Termination

This Agreement may be terminated at any time by the Licensee effective one month after delivery of notice of termination to the Trustee and the Software Publisher.

Return of Trust Materials

Upon the date that this Agreement has been terminated under this Article and all fees owing under this Agreement to the Trustee have been paid, the Trustee shall return to the Software Publisher, unless an Event of Default has occurred, all copies of the Trust Materials and the Trustee shall thereupon be discharged from all its obligations under this Agreement.

Survival

Sections 2.3, 4.5, 5.2, 5.3, 7.1, 7.2 and this Section 9.4 as well as Article [NUMBER] shall survive the termination of this Agreement.


DISPUTE RESOLUTION PROCESS

Software Publisher and Licensee

The Software Publisher and the Licensee candidly acknowledge their divergent interests regarding Licensee's access to, and the use of, the Trust Materials and further acknowledge that they may disagree as to the disclosure and use of the Trust Materials. Accordingly, they and the Trustee have agreed to the following abbreviated arbitration process which, while not unduly delaying Licensee's access and use thereof, will ensure that the disclosure and use of the Trust Materials is granted only in appropriate circumstances:

any dispute between the Parties concerning any matter arising hereunder, including, without limitation, any failure to agree on a matter requiring agreement, shall be submitted to arbitration in accordance with the provisions of Schedule H attached hereto and forming part of this Agreement; and 

the arbitration shall be governed by the Rules of Procedure set out in such Schedule H.

Insofar as the provisions of the Arbitrations Act ([STATE/PROVINCE]) are not inconsistent with such Rules of Procedure, the provisions of such Act shall apply.


GENERAL

Notice

Any notice, demand or other communication required or permitted to be given or made hereunder shall be in writing and shall be sufficiently given or made if:

delivered in person during normal business hours on a Business Day and left with a receptionist or other responsible employee of the relevant party at the applicable address set forth below;

sent by prepaid first class mail; or

sent by any electronic means of sending messages, including telex or facsimile transmission, which produces a paper record (An Electronic Transmission@) during normal business hours on a Business Day charges prepaid and confirmed by prepaid first class mail;

in the case of a notice to the Software Publisher, addressed to it at:


Attention:

Telephone: 
Telecopier: 

and in the case of a notice to the Licensee, addressed to it at:

Attention:

Telephone:
Telecopier:

and in the case of a notice to the Trustee, addressed to it at:

Attention:   Corporate Trust Services

Telephone:
Telecopier:

Each notice sent in accordance with this Section shall be deemed to have been received:

on the day it was delivered;

on the third Business Day after it was mailed (excluding each Business Day during which there existed any general interruption of postal services due to strike, lockout or other cause); or

on the same day that it was sent by Electronic Transmission, or at the start of business on the first Business Day thereafter if the day on which it was sent by Electronic Transmission was not a Business Day.

Any Party may change its address for notice by giving notice to the other Party as provided in this Section.

Further Assurances

Each Party shall take (or cause to be taken) all reasonable steps, including the execution of all further documents as the other Party may in writing from time to time request be done in order to consummate the transactions contemplated hereby or as may be necessary or desirable to give effect to this Agreement or any document, agreement or instrument delivered pursuant hereto.

Assignment

Neither this Agreement nor any rights or benefits hereunder may be assigned by any Party without the prior written consent of the other Parties.  

Successors and Assigns

This Agreement shall ensure to the benefit of and be binding upon the [COMPANY NAME] and their respective successors (including any successor by reason of amalgamation or statutory arrangement of any Party) and permitted assigns.

Force Majeure - Excusable Delays

Except as expressly provided otherwise in this Agreement, dates and times by which any Party is required to perform any obligation under this Agreement shall be postponed automatically to the extent, and for the period of time, that that Party is prevented from doing so by circumstances beyond its reasonable control. Such circumstances shall include acts of nature, strikes, lockouts, riots, acts of war, epidemics, government regulations imposed after the fact, fire, communications line failures, power failures, earthquakes or other disasters. The Party prevented from rendering performance must notify the other Party immediately and in detail of the commencement and nature of such circumstance and the probable consequences of it. Each Party whose performance is delayed must use reasonable efforts to perform its obligations in a timely manner, must employ all resources reasonably required in the circumstances and must obtain supplies or services from other sources if reasonably available.  

Independent Contractor - No Partnership

This Agreement does not create a partnership or a joint venture between the parties. No party shall have the right to enter into contracts or pledge the credit of or incur expenses or liabilities on behalf of any other.

Time of the Essence

Time is of the essence of this Agreement.


IN WITNESS WHEREOF, each party to this agreement has caused it to be executed at [PLACE OF EXECUTION] on the date indicated above.


TRUSTEE             LICENSEE


                          
Authorized Signature          Authorized Signature


                          
Print Name and Title          Print Name and Title
SCHEDULE A
LICENSE AGREEMENT

 
SCHEDULE B
LICENSEE'S CERTIFICATE

(pursuant to Article [NUMBER])


TO:  [The Trustee] 

RE:  Trust Agreement (the "Agreement") between [Licensee], The Trust Company and [Software Publisher], a Division of [SPECIFY], dated as of [DATE]. (Terms defined in the Agreement have the same meaning in this Certificate.)


The undersigned senior officers of [Licensee], a Division of (the "Corporation"), and, certify on behalf of, and under corporate seal of, the Corporation that an Event of Default has occurred as follows:


DATED, 


[Licensee], A DIVISION OF [SPECIFY]


Per:    
(name, and position)
c/s

Per:    
(name and position)

 
SCHEDULE C
NO CHANGE CERTIFICATE

(pursuant to Article [NUMBER])


TO:  [The Trustee]

RE:  Trust Agreement (the "Agreement") between [Software Publisher], The Trust Company and [Licensee], a Division of [SPECIFY], dated as of [DATE]. (Terms defined in the Agreement have the same meaning in this Certificate.)

The undersigned, being two senior officers of [Software Publisher] (the "Corporation"), and certify on behalf of, and under the corporate seal of, the Corporation that no change has been made to the Software or to the System Documentation from the last time Trust Materials were delivered under Article [NUMBER] of the Agreement.

[DATE]


[Software Publisher]


Per:    
[name, and position]
c/s

Per:    
[name and position]
 
SCHEDULE D
DESCRIPTION OF SOFTWARE

 
SCHEDULE E
SOFTWARE PUBLISHER'S CERTIFICATE


(pursuant to Article [NUMBER])

TO:  [The trustee], [Licensee]

RE:  Trust Agreement (the "Agreement") between [Software Publisher], The Trust Company and [Licensee], a Division of [SPECIFY], dated as of [DATE] (Terms defined in the Agreement have the same meaning in this Certificate.)

The undersigned senior officers of , Inc. (the "Corporation"), and, certify on behalf of, and under the corporate seal of, the Corporation that the Trust Materials delivered together with this Certificate,

(i)  are complete and otherwise accurately reflect the most current version of the Software used by the Licensee;

(ii)  incorporate all changes to the Trust Materials made since the last Deposit to the Trustee under the Agreement;

(iii)  are sufficient to allow the Licensee, with the assistance of a competent software maintenance professional, possessing ordinary skills and experience, to further develop, maintain and operate the Software without further recourse to the Software Publisher;

(iv)  including the Source Code, do not contain any clock, timer, counter, or other limiting or disabling code, design or routine that would cause the Software to be erased, made inoperable or otherwise rendered incapable of performing in accordance with the applicable specifications as set out in the license Agreement or would prevent or prohibit or otherwise diminish the use of the Trust Materials by Licensee for the purpose of providing for its own maintenance and support or otherwise limit or restrict Licensee's ability to use or copy the Software after a specific or random number of uses or copies, or after the lapse or occurrence of any similar triggering prompt or due to the use of a central processing unit (a "CPU") other than the CPU specified, if any, in the License Agreement; and

(v)  are free of all liens, charges and other encumbrances.

[DATE]
[Software Publisher]


Per:    
(name and position)
c/s

Per:    
(name and position)
 
SCHEDULE F
DESCRIPTION OF SYSTEM DOCUMENTATION


SCHEDULE G
ENVIRONMENTAL PARAMETERS


SCHEDULE H
DISPUTE RESOLUTION PROCEDURE


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