ESCROW AGREEMENT
This Agreement is made on Agreement Date between the parties specified in Schedule 1 as X2 Digitals Escrow Partner, the Client and X2 Digital respectively.
Recitals
A. X2 Digitals Escrow Partner has the skills and resources to escrow Escrow Materials.
B. X2 Digital proposes to deposit the Escrow Materials with X2 Digitals Escrow Partner and Client proposes to gain access to the Escrow Materials on the basis set out in this Agreement.
Operative Part
1. Definitions
1.1 In this Agreement, unless inconsistent with the context:
(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.
(b) Clause means a clause of this Agreement.
(c) Force Majeure means an act, omission or circumstance over which X2 Digitals Escrow Partner could not reasonably have exercised control.
(d) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.
(e) Sub-clause means a sub-clause of this Agreement.
2. Interpretation
2.1 In this Agreement, unless inconsistent with the context:
(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
(b) Words denoting the singular number shall include the plural number and vice versa.
(c) Words denoting any gender shall include all other genders.
(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
(e) Money references are references to Australian currency.
(f) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.
(g) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
(h) Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.
(i) A provision of this Agreement shall not be construed adversely to the Party that drafted it.
(k) The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and clauses of this Agreement; and thereafter in the order specified (if any) in Schedule 1.
(l) No remedy, expressly granted to X2 Digitals Escrow Partner excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to X2 Digitals Escrow Partner.
3. Duration
3.1 This Agreement shall remain in force until Escrow Materials are released or destroyed in accordance with this Agreement or this Agreement is otherwise terminated.
4. Deposit of Escrow Materials
4.1 X2 Digital shall deposit the Escrow Materials within the Update Frequency after the Commencement Date with X2 Digitals Escrow Partner.
4.2 If any modification is made to the executable version of the Escrow Materials supplied to Client then X2 Digital shall within the Update Frequency deposit the modified version of the Escrow Materials with X2 Digitals Escrow Partner.
5. Storage
5.1 X2 Digitals Escrow Partner shall store the Escrow Materials in accordance with the Storage Method.
6. Details
6.1 X2 Digitals Escrow Partner shall, upon request, provide a list of all the Escrow Materials deposited, stored and released pursuant to this Agreement.
7. Access to Escrow Materials
7.1 Unless required by law or this Agreement, X2 Digitals Escrow Partner shall not permit access to the Escrow Materials by any person not authorised in writing by both X2 Digital and Client.
7.2 Sub-clause 7.1 does not apply to personnel authorised by X2 Digitals Escrow Partner to perform its obligations pursuant to this Agreement.
8. Loss of Escrow Materials
8.1 If the Escrow Materials are lost, destroyed or damaged whilst in the possession, custody or control of X2 Digitals Escrow Partner, X2 Digitals Escrow Partner shall:
(a) promptly notify X2 Digital and Client; and
(b) co-operate in the replacement of the lost, damaged or destroyed Escrow Materials.
9. Verification
9.1 X2 Digitals Escrow Partner shall not be required to verify the Escrow Materials deposited pursuant to this Agreement.
9.2 At the request of Client, X2 Digitals Escrow Partner may verify the Escrow Materials upon payment of additional fees by Client.
9.3 The costs of the verification process referred to in Sub-clause 9.2 shall be paid in advance by Client. However, in the event that the Escrow Materials fail the verification process X2 Digital shall pay such costs to Client.
10. Release of Escrow Materials to X2 Digital
10.1 Subject to Clause 12, X2 Digitals Escrow Partner shall, at X2 Digital’s option, return the Escrow Materials to X2 Digital or destroy the Escrow Materials if:
(a) Client consents to such release;
(b) Client is in material breach of this Agreement or the Master Agreement; or
(c) Client becomes subject to any form of insolvency administration.
10.2 X2 Digitals Escrow Partner may at any time provide X2 Digital with a copy of the Escrow Materials.
11. Release of Escrow Materials to Client
11.1 Subject to Clause 12, X2 Digitals Escrow Partner shall provide a copy of the Escrow Materials to Client if:
(a) X2 Digital consents to such release;
(b) the events set out in the Additional Trigger Events to trigger such release occur;
(c) the events set out in the Master Agreement to trigger such release occur; or
(d) X2 Digital becomes subject to any form of insolvency administration.
11.2 If the Escrow Materials are released to Client in accordance with this Clause then Client shall be entitled to use, modify and copy the Escrow Materials solely in accordance with Client’s rights and obligations under the Master Agreement.
12. Objection to release of Escrow Materials
12.1 A Party seeking release of a copy of the Escrow Materials pursuant to Clause 10.1 or 11.1 shall give 7 days prior notice to other Party of such a notice being proposed to be given to X2 Digitals Escrow Partner.
12.2 X2 Digitals Escrow Partner is under no obligation to release a copy of the Escrow Materials unless:
(a) evidence that Sub-clause 12.1 has been satisfied is provided; and
(b) Escrow Fees have been paid in full including any applicable Release Fee.
12.3 A Party who receives a notice pursuant to Sub-clause 12.1 may object, by notice in writing to X2 Digitals Escrow Partner and the other Party on the basis that the facts relied upon by the other Party are inaccurate.
12.4 Upon receipt of such notice, X2 Digitals Escrow Partner shall not release a copy of the Escrow Materials until the parties consent to such release or a Court makes a declaration in favour of a Party seeking such release.
12.5 X2 Digitals Escrow Partner shall comply with any declaration or direction of the Court.
13. Escrow Fees and Charges
13.1 Escrow Paying Party shall pay the Escrow Fees to X2 Digitals Escrow Partner.
13.2 The Escrow Fees are non-refundable despite termination of this Agreement.
13.3 The Escrow Fees may be increased on 30 days’ notice in writing. Client or X2 Digital may by notice in writing terminate this Agreement within that period.
13.4 Unless stated to the contrary, the Escrow Fees are exclusive of all taxes, GST, duties, fees or other government charges which may be imposed on the storage of Escrow Materials, this Agreement or otherwise. Escrow Paying Party shall pay such taxes, GST, duties, fees or other government charges immediately on demand.
13.5 If any payment is not made within 7 days of the due date, X2 Digitals Escrow Partner may, without further notice to X2 Digital or Client, suspend further services or its remaining obligations to X2 Digital and Client under this Agreement.
14. Confidentiality
14.1 All parties shall treat as confidential the terms of this Agreement, Escrow Materials and any other related information, which comes into their possession, control or custody pursuant to this Agreement. The obligations under this clause survive the termination of this Agreement.
15. Inquiries by X2 Digitals Escrow Partner
15.1 X2 Digitals Escrow Partner shall not be bound to inquire about the validity of the grounds for any notice or direction to it.
15.2 If X2 Digitals Escrow Partner is in any doubt as to its obligations under this Agreement it shall seek directions from X2 Digital and Client. If X2 Digital and Client cannot agree on directions to be given to X2 Digitals Escrow Partner within 7 days of being requested to do so, X2 Digitals Escrow Partner shall wait for directions from a Court.
16. Legal Costs and Indemnity
16.1 Client and X2 Digital jointly and severally indemnify and shall keep X2 Digitals Escrow Partner indemnified for all costs, taxes and expenses on a solicitor and own client basis incurred in connection with this Agreement and any dispute in relation to this Agreement.
17. Implied Terms
17.1 Except as expressly provided to the contrary in this Agreement any condition or warranty whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement is excluded.
17.2 Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of X2 Digitals Escrow Partner for any breach of such term shall be limited, at the option of X2 Digitals Escrow Partner, to the supplying of the services again or the payment of the cost of having the services supplied again.
18. Liability of X2 Digitals Escrow Partner
18.1 Except as expressly provided to the contrary in this Agreement, X2 Digitals Escrow Partner shall not be under any liability to X2 Digital or Client in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the failure or omission on the part of X2 Digitals Escrow Partner to comply with its obligations under this Agreement.
19. Termination
19.1 This Agreement shall terminate if:
(a) Escrow Materials are released by X2 Digitals Escrow Partner in accordance with this Agreement; or
(b) Client gives 30 days’ notice that this Agreement is terminated.
19.2 X2 Digitals Escrow Partner may terminate this Agreement immediately by notice in writing if any payment due to X2 Digitals Escrow Partner pursuant to this Agreement remains unpaid for a period of 30 days.
19.3 Upon termination, amongst other things:
(a) X2 Digitals Escrow Partner shall, unless directed otherwise, destroy the Escrow Materials. A Party making a direction otherwise shall pay all fees applicable to complying with that direction; and
(b) Escrow Paying Party shall pay the Release Fee.
20. Survival
20.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
21. Force Majeure
21.1 X2 Digitals Escrow Partner shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.
22. Assignment, Novation and Sub-Contracts
22.1 X2 Digital or Client shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of X2 Digitals Escrow Partner.
22.2 X2 Digitals Escrow Partner may sub-contract for the performance or part performance of this Agreement.
23. Waiver
23.1 Any failure by a Party to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by a Party will not be construed as a waiver of that Party’s rights.
23.2 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party. Such a waiver by a Party shall not prejudice its rights in respect of any subsequent breach of this Agreement by the other Party.
24. Governing Law
24.1 This Agreement shall be governed by and construed according to the law of Jurisdiction.
24.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of Jurisdiction and the Commonwealth of Australia and any courts hearing appeals from such courts. Any proceedings in a Commonwealth court shall be commenced in Jurisdiction.
25. Notices
25.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 1.
25.2 Notices shall be deemed given in the case of:
(a) hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) posting, 3 days after dispatch; and
(c) facsimile, upon completion of transmission.
26. Entire Agreement
26.1 Unless stated expressly to the contrary in this Agreement:
(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;
(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;
(c) no Party may bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and
(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.
Executed as an Agreement
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By X2 Digital
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:
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) Attach company seal here
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Director/Secretary sign here
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Director sign here
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Print Name of Director/Secretary here
Director/Secretary
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Print Name of Director here
Director
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By Client
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:
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) Attach company seal here
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Director/Secretary sign here
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Director sign here
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Print Name of Director/Secretary here
Director/Secretary
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Print Name of Director here
Director
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By X2 Digital Escrow Partner
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:
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Director/Secretary
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Director
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Schedule 1 – General Details
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Agreement Date
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Additional Trigger Events
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Client
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Client ABN
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Client Address
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Commencement Date
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X2 Digitals Escrow Partner
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Software Escrow & Copyright Agents Pty Ltd ABN 68 007 214 708
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X2 Digitals Escrow Partner Address
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GPO BOX 2506 SYDNEY NSW 2001 Australia
Facsimile: + 612 9233 3044
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Escrow Fees
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Setup Fee: $400 plus GST
Annual Fee: $600 plus GST per annum in advance commencing on execution of this Agreement plus if more than 4 CDs are held then an additional fee of $150 plus GST per CD per annum is payable.
Release Fee: $600 plus GST upon receipt of a request to release or destroy the Escrow Materials.
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Escrow Materials
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Source Code for [insert software details]
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Escrow Paying Party
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Client
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Jurisdiction
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New South Wales
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Master Agreement
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[insert details of master agreement] and all further renewals or extensions thereof.
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X2 Digital
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X2 Digital ABN
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X2 Digital Address
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Storage Method
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Secure Building; or, subject to payment in advance of $100 plus GST per annum to X2 Digitals Escrow Partner in addition to Escrow Fees, Bank Vault.
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Update Frequency
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90 days (or such later period as may be specified in the Master Agreement)
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