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SOURCE CODE TRUST AGREEMENT


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


BETWEEN:  [FIRST PARTY NAME] (the "Depository"), 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:  [SECOND PARTY NAME] (the "Trustee"), a trust company organized and existing under the laws of the [State/Province] of [STATE/PROVINCE], with its head office located at:

      [COMPLETE ADDRESS]


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

      [COMPLETE ADDRESS]


WHEREAS, in partial consideration of Beneficiary agreeing to enter into a "License Agreement" with Depository and Beneficiary as of (the "License Agreement") for the use of Licensed Programs more fully described in Schedule [SPECIFY] to the License Agreement (the "Licensed Program"), Depository has agreed to enter into this agreement which will make available to Beneficiary the source code of the Licensed Program and certain related materials required for the maintenance and support of the Licensed Program (the "Source Materials", as more particularly described in Section 4 hereof) in certain circumstances as more particularly described herein.

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

WHEREAS Depository acknowledges and agrees that the Licensed Program is necessary to Beneficiary in its business and that Beneficiary has a legitimate right to have access to, and the use of, the Source Materials in the specific manner contemplated herein to maintain and support the Licensed Program.

WHEREAS, as between them, Depository and Beneficiary acknowledge that this agreement reflects a reasonable balance of their respective needs and concerns respecting access to, and the use of, the Source Materials.

WHEREAS the foregoing representations and statements of fact are made by Depository and Beneficiary and not by the Trustee.

WHEREAS Depository and Beneficiary 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 [COMPANY NAME] 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:

"Affiliates and Subsidiaries" have the meaning ascribed to them under the [COUNTRY] Business Corporations [ACT/LAW/RULE], [NUMBER], as amended.

"Agreement" means this Source Code Source Agreement and all exhibits 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] and [STATE/PROVINCE];

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

Beneficiary means Beneficiary, or division designated herein or any successor (whether by change of name, dissolution, merger, consolidation, reorganization or otherwise) to such corporation or division or its business assets along with actual or future Affiliates and Subsidiaries of Beneficiary.

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

"Depository's Certificate" means a certificate in the form attached as Exhibit [SPECIFY] hereto executed by any two senior officers of Depository; 

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

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

"Beneficiary's Certificate" means a certificate in the form attached as Exhibit [SPECIFY] hereto executed by any two senior officers of Beneficiary;

"No Change Certificate" means a certificate in the form attached as Exhibit [SPECIFY] hereto executed by any two senior officers of Depository;

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

"Parties" means Depository, the Trustee and Beneficiary 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;

"Licensed Program" means, at any time, that version of the Licensed Program then licensed to Beneficiary by Depository, 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 [SPECIFY] to the License Agreement hereto;

"Maintenance Agreement" shall be deemed to include Depository's obligations with respect to the Licensed Program under and during the "Warranty Period" set forth in of the License Agreement as well as [any agreement between Depository and Beneficiary for the provision of maintenance and/or support services with respect to the Licensed Program] [a ["Maintenance Agreement"] entered into as of between Depository and Licensee, as the same may be amended, extended or replaced].

"Source Code" means a complete copy of the source code version of the Licensed Program, 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 Beneficiary and which, when compiled, will produce the object code version of the Licensed Program; and

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

"Source Documentation" means a complete copy, in English, 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 Licensed Program as may be required by Beneficiary, using a competent computer programmer possessing ordinary skills and experience, to further develop, maintain and operate the Licensed Program without further recourse to Depository 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 Exhibit [SPECIFY] hereto; and

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

Exhibits

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

Exhibit [SPECIFY]  -  Beneficiary's Certificate
Exhibit [SPECIFY]  -  No Change Certificate
Exhibit [SPECIFY]  -  Depository's Certificate

Exhibit [SPECIFY]  -  Arbitration
Exhibit [SPECIFY]  -  Trustee's Fees

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 [COMPANY NAME] and their respective successors and permitted assigns.

Governing Law 

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

Entire Agreement

This Agreement, together with the exhibits attached hereto, constitutes the entire agreement between the [COMPANY NAME] 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 [COMPANY NAME].

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

Depository 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 [COMPANY NAME] that such transfer by Depository to Trustee under this Section is not intended to, nor does it, transfer any intangible rights in the Source Materials. The Trustee agrees to hold the Source Materials in trust for Beneficiary and Depository as provided in this Agreement.

Duty to Store

Except as otherwise provided herein, the Trustee shall hold and preserve the Source Materials in a safe and secure manner appropriate for valuable assets similar in nature to the Source 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 [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 Exhibit [SPECIFY], and agrees to bear all risks of damage to the Source Materials arising from any lack of such control.]

Duty of Confidentiality

The Trustee recognizes and agrees that the Source Materials are the valuable assets and proprietary and confidential information of Depository 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 Source Materials to any Person, in any manner, without the prior written consent of Depository.


GRANT OF LICENSE

Grant of License

Depository hereby grants to Beneficiary a personal, non-exclusive, non-transferable license to use the Source Materials solely to [maintain and support] the Licensed Program [for its own internal use]. This license, which shall remain in effect as long as Beneficiary has the right to use the Licensed Program pursuant to the License Agreement or otherwise and which shall survive the termination of this Agreement, shall be restricted to allowing Beneficiary to:

make only those copies of the Source Materials that Beneficiary reasonably requires to use, maintain, implement, correct or update the Licensed Program;

make revisions to the Source Materials;

recompile versions of the Licensed Program from the Source Materials, which recompiled versions shall be deemed to be Licensed Program and subject to the terms of the License Agreement; and

reveal the Source Materials, or any part thereof, only to agents, employees or independent contractors of Beneficiary as reasonably required in order to make those acts referred to in subparagraphs 3.1hereof.

Subcontractors

Beneficiary agrees to use the Source Materials only for its own use and to obtain from any third party to whom disclosure of this information is made pursuant to subparagraph 3.1, a covenant not to further disclose or make use of the Source Materials in any manner whatsoever except as provided in this Section.

Number and location of copies

Upon written request by Depository, Beneficiary shall set out in writing the number of copies of the Source Materials made and the location of each such copy.


INITIAL AND SUBSEQUENT DEPOSITS OF SOURCE MATERIALS

Initial Deposit

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

Subsequent Deposits

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

within [[NUMBER] Business Days] after making any material change to either the Licensed Program or the Source Documentation; 

every [[NUMBER] months for as long as this Agreement remains in force, unless Depository has not made any change to the Licensed Program or Source Documentation since the last Deposit, in which case Depository shall deliver a No Change Certificate to the Trustee instead of delivering the Source Materials; and

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

Notice regarding change to Source Material

Depository shall promptly notify Beneficiary and the Trustee each time a material change is made to the Licensed Program or Source Documentation.  The Trustee, however, shall not be responsible for determining whether Depository has an obligation to deliver Source Materials or for enforcing that obligation.  

Notice regarding Subsequent Deposit

Depository shall provide the Trustee and Beneficiary with [NUMBER] Business Days prior written notice of any Subsequent Deposit.

Source Materials Held by the Trustee

The Trustee shall promptly notify Beneficiary of the Initial Deposit and of all Subsequent Deposits and will provide Beneficiary with a copy of the applicable Depository's Certificate. Subject to notice from Beneficiary to the contrary, the Trustee shall continue to store those Source 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 [SPECIFY].

Disposal of Prior Deposits

In respect of the Source Materials provided with any other Deposit, the Trustee shall erase and destroy all materials, constituting such Deposit. The Trustee shall then provide to each of Beneficiary and Depository, an appropriate officer's certificate verifying that all such materials in such Deposit have been destroyed.

Form of Source Materials

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

the complete Source Code; and

the complete Source Documentation.

Representations and Warranties Re Source Materials

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

the Source Materials are complete and otherwise accurately reflect the most current version of the Licensed Program used by Beneficiary;

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

the Source Materials are sufficient to allow Beneficiary, with the assistance of a competent Licensed Program maintenance professional, possessing ordinary skills and experience, to further develop, maintain and operate the Licensed Program without further recourse to Depository;

the Source 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 Licensed Program 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 Source Materials by Beneficiary for the purpose of providing for its own maintenance and support or otherwise limit or restrict Beneficiary's ability to use or copy the Licensed Program 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 Source Materials is free of all liens, charges and other encumbrances.

Depository 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 Depository

At any time, whether before or after the provision of a Deposit, Beneficiary may request that Depository verify that the Source Materials held, or to be held, by the Trustee correspond to the requirements set out in Section 4.8. Beneficiary shall request such verification by sending written notice to both Depository 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.

Beneficiary 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 Depository and Beneficiary. In the presence of Depository and the Trustee, Beneficiary shall perform (or at its option require Depository to perform) verification procedures to determine that these Source Materials correspond to the Licensed Program in the form then licensed to Beneficiary. 

Upon completion of the verification, Depository shall mark as verified the Source Materials that Beneficiary has determined correspond to the Licensed Program and shall return them to the Trustee. Depository may take all reasonable steps to ensure that all copies of the Source Materials created during the verification process are purged from the computer equipment on which the verification process took place. Beneficiary agrees not to retain any of the Source Materials after the verification process has been completed. Beneficiary shall pay all of the reasonable expenses of the Trustee and Depository incurred as a result of its request for verification unless the Source Materials are found to be incomplete or otherwise deficient in some material respect in which event Depository shall pay the expenses of the Trustee and Beneficiary, and must forthwith take those actions set out in Section 5.2.

Remedial Actions

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

Reliance Not Affected

Notwithstanding the carrying out of verification as contemplated in Section 5 hereof, Depository shall continue to be bound by, and Beneficiary shall continue to rely upon, those representations and warranties set out in paragraph 4.8.


RELEASE OF SOURCE MATERIALS

Triggering Events

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

if DEPOSITORY or any permitted successor or assign makes a general assignment for the benefit of creditors; or

if a trustee or receiver of any substantial part of DEPOSITORY's (or a permitted successor's or assign's) assets is appointed by any court; or

if DEPOSITORY or any permitted successor or assign ceases to function as a going concern; or

if DEPOSITORY or any permitted successor or assign files a petition in bankruptcy or such a petition is filed against it and is acquiesced in or is not dismissed within [NUMBER] days or results in an adjudication of bankruptcy; or

if DEPOSITORY or any permitted successor or assign otherwise ceases to manufacture the LICENSED PROGRAMS; or

if DEPOSITORY or any permitted successor or assign commits

a material breach or default of its maintenance and support obligations in Exhibit [SPECIFY] under the Maintenance Agreement and is unable to cure such breach within [NUMBER] days after notice thereof; or

a material breach or default of its other obligations under the License Agreement or under this Agreement and fails to cure such breach or default within the applicable cure period, then BENEFICIARY shall be entitled to avail itself of the source code license granted to BENEFICIARY as per and in accordance with the terms hereof.]

Notification of Default

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

a copy of the certificate; and 

a notice stating that unless Depository exercises its rights under paragraph 6.3 within [[NUMBER] Business Days] of the giving of such notice, the Trustee will deliver the Source Materials to Beneficiary.

Contesting of Default

If Depository, acting in good faith, wishes to contest that an Event of Default has occurred, Depository must deliver an affidavit denying that such Event of Default has occurred to the Trustee and Beneficiary before the Notice Period expires. If Depository does so, the Trustee will not release the Source Materials to either Beneficiary or Depository except (i) in accordance with a final decision of the arbitrator as provided in Section 10 and Exhibit [SPECIFY] hereof, or (ii) upon receipt of an agreement duly executed by authorized officers of Depository and Beneficiary, authorizing the release of the Source Materials to either Beneficiary or Depository.

Delivery of Source Materials to Beneficiary

Unless Depository delivers to the Trustee and Beneficiary 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 Source Materials and Depository's Certificate pertaining to them to Beneficiary once Beneficiary has paid the Trustee any outstanding amounts payable to the Trustee under this Agreement together with the Trustee's charge for delivering the Source Materials Upon such delivery, the Trustee shall transfer all legal title to the physical copies of the Source Materials to Beneficiary at which time this Agreement shall terminate. The Trustee shall have no other obligation or responsibility to Beneficiary in respect of the Source Materials.


THE TRUSTEE

Indemnity

[Depository] agrees to indemnify the Trustee and save it harmless from each claim of any kind made by [Depository] 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 Source 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 Depository and Beneficiary other than for the performance of its obligations with respect to the Source 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 Source Materials

The Trustee shall not be responsible to verify the sufficiency, genuineness or validity of, or title to, any of the Source 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 Depository 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 Depository and Beneficiary. If the Trustee resigns, a new Trustee shall be appointed by mutual agreement of Depository and Beneficiary. If Depository and Beneficiary cannot agree, Beneficiary shall appoint a trust company of its choice as the Trustee provided that such trust company has appropriate storage facilities located in [STATE/PROVINCE] and agrees to store the Source Materials there in accordance with the terms of this Agreement. 

If Beneficiary 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 Source Materials to such new Trustee in an appropriate manner.

Third Party Proceedings Against Source Materials

If:
the Source Materials become subject to an order of the Court,

the delivery of the Source 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 Source 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

Depository shall pay the Trustee the fees set forth in Exhibit [SPECIFY] for its services under this Agreement:

Changes in Fees

The fees set out in Exhibit [SPECIFY] are exclusive of legal and out-of-pocket expenses which the Trustee may incur in administering this Agreement. Depository 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 Depository 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 check and microfiche. 

Increase in Fees

Upon each anniversary date of this Agreement, on at least [NUMBER] months' prior written notice, the Trustee may increase the fees payable hereunder during the next [NUMBER] month 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 [SPECIFY], 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 [COMPANY NAME] and shall continue for such period as the License Agreement (or any replacement agreement with respect to the Licensed Program) remains in effect, unless terminated in accordance with the provisions of this Agreement.

Termination

This Agreement may be terminated at any time by Beneficiary effective [[NUMBER] days] after delivery of notice of termination to the Trustee and Depository.

Depository's Breaches

Trustee acknowledges and agrees that it shall not have the right to terminate this Agreement by reason of a breach, by Depository, of its obligations hereunder unless trustee has provided Beneficiary with a notice of such a breach and unless Beneficiary has not cured such a breach on behalf of Depository within [NUMBER] days of the receipt of such a notice, subject to Beneficiary's rights against Depository by reason of remedial action so taken by Beneficiary.

Return of Source Materials

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

Survival

Paragraphs 2.3, 4.8, 7.1, 7.2, 9.4 as well as Section 10 shall survive the termination of this Agreement.


DISPUTE RESOLUTION PROCESS

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

any dispute between the [COMPANY NAME] 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 Exhibit [SPECIFY] attached hereto and forming part of this Agreement; and 

the arbitration shall be governed by the Rules of Procedure set out in such Exhibit [SPECIFY]. 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 (in this Section, a "notice") 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 ("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 Depository, addressed to it at:

Attention:  
Telephone: 
Telecopier: 

and in the case of a notice to Beneficiary, 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 [COMPANY NAME].

Successors and Assigns

This Agreement shall enure 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 [COMPANY NAME]. 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.


DEPOSITORY             TRUSTEE



                          
Authorized Signature          Authorized Signature

                          
Print Name and Title          Print Name and Title



BENEFICIARY             



              
Authorized Signature          

              
Print Name and Title          
EXHIBIT A

BENEFICIARY'S CERTIFICATE
(pursuant to Article [SPECIFY])


TO:  [The Trustee] 

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

The undersigned senior officers of [Beneficiary], 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 , [YEAR].

[Beneficiary], A DIVISION OF  

Per:          
  (name, Vice-President)
  c/s

Per:          
  (name and position)


EXHIBIT B

NO CHANGE CERTIFICATE
(pursuant to Article Three)


TO:  [The Trustee]

RE:  Trust Agreement (the "Agreement") between  [Depository], The Trust Company and [Beneficiary], a Division of, dated as of the day of, [YEAR]. (Terms defined in the Agreement have the same meaning in this Certificate.)

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

DATED , [YEAR]


[Depository]

Per:          
  [name, Vice-President]
  c/s

Per:          
  [name and position]
EXHIBIT C

DEPOSITORY'S CERTIFICATE 
(pursuant to Article Four)

TO:  [The trustee], [Beneficiary]

RE:  Trust Agreement (the "Agreement") between  [Depository], The  Trust Company and  [Beneficiary], a Division of, dated as of the [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 Source Materials delivered together with this Certificate,

(i)  are complete and otherwise accurately reflect the most current version of the Licensed Program used by Beneficiary;

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

(iii)  are sufficient to allow Beneficiary, with the assistance of a competent Licensed Program maintenance professional, possessing ordinary skills and experience, to further develop, maintain and operate the Licensed Program without further recourse to Depository;

(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 Licensed Program 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 Source Materials by Beneficiary for the purpose of providing for its own maintenance and support or otherwise limit or restrict Beneficiary's ability to use or copy the Licensed Program 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.
DATED, [YEAR].

[Depository]


Per:          
  (name and position)
  c/s

Per:          
  (name and position)
 
EXHIBIT D
ARBITRATION

 
EXHIBIT E
TRUSTEES FEES


(a)  [AMOUNT] for receiving and handling the first deposit of Source Materials, payable within [NUMBER] Business Days of the execution of this Agreement by the [COMPANY NAME];

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

(c)  [AMOUNT] each time either Depository or Beneficiary requires access to the Source Materials, payable within [NUMBER] Business Days of the date of that access; and

(d)  [AMOUNT] upon termination of this Agreement.

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