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Genuity - Form Of Software Escrow Agreement
Exhibit 10.36
SOFTWARE ESCROW AGREEMENT
This Agreement made and entered into as of the ___ day of June, 2000 (the "Effective Date") by and between GTE Service Corporation and its Affiliates ("GTE") and Genuity Solutions Inc. ("GENUITY").
W I T N E S S E T H:
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WHEREAS, GTE and GENUITY have entered into a Software License Agreement dated as of _______________________ (the "License Agreement"), an IT Transition Services Agreement dated as of ___________________________ (the "Transition Services Agreement") and a Software Development and Technical Services Agreement ("Software Development Agreement"); and WHEREAS, under the terms of the License Agreement the parties have agreed to enter into a Software Escrow Agreement respecting the Licensed Programs identified on Schedule A to the License Agreement (the "Licensed Programs"); and
WHEREAS, the parties wish to enter into this Software Escrow Agreement in satisfaction of the said obligation under the License Agreement and for other purposes;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and in satisfaction of the parties' said agreement to enter into a Software Escrow Agreement, the parties agree as follows:
Section 1. Delivery of Source Code and Grant of Rights and Licenses Granted to --------- -------------------------------------------------------------------- GENUITY. -------
(a) Creation of Escrow. GTE shall deliver to GENUITY as set forth in
------------------ -----------------------
this Agreement, or, upon mutual agreement of the parties, to an
--------------
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acceptable escrow agent (the "Escrow Agent"), upon terms and conditions of an escrow agreement mutually acceptable to GTE, GENUITY and the Escrow Agent and
------- consistent with the provisions of this Agreement, one copy of all source code and related documentation, in the form and content it currently exists within GTE, including all modifications and future releases thereafter made by GTE which are provided to GENUITY as Licensed Programs through the date that GENUITY assumes responsibility for the Licensed Programs, but no later than the date GTE ceases providing Services under the Transition Services Agreement for the Licensed Programs, or to any other software mutually agreed in writing by the parties, excluding Third Party Software (unless GTE has the right to provide the source code for such Third Party Software to GENUITY without the payment of
------- compensation to such third parties and without affecting GTE's rights in and to such Third Party Software, unless Genuity obtains such rights from such third party, or if payment of compensation is required to such third party unless GENUITY pays such compensation), (collectively, the "Source Code"). The copy of the Source Code shall be accompanied by a description of the Source Code being delivered in the form attached hereto as Exhibit A and shall be delivered in one or more packages clearly labeled so as to indicate the name of the Licensed Program for which the contents are all or a part of the Source Code. Such copy and accompanying description of Source Code shall be referred to
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herein as a "Deposit". Once the Source Code has been released by the Escrow Agent or otherwise provided by GTE to GENUITY, neither GTE nor the Escrow Agent
------- shall have any further obligations to GENUITY with respect to such Source Code
------- except as otherwise set forth herein.
(b) In the event that such Source Code is released by the Escrow Agent or
otherwise provided by GTE to GENUITY pursuant to this Agreement, GTE
-------
hereby grants to GENUITY a perpetual limited, personal, nontransferable
-------
and nonexclusive license to use such Source Code solely for the purpose
of maintaining, modifying, enhancing and creating new versions of the
Licensed Software during the License Term (collectively, the "Modified
Licensed Software"). Said license to use the Source Code shall not be
transferable or sublicensable, but shall include the right to have the
Licensed Software maintained by a third party, provided that GTE shall
have the right to enforce its rights in such Source Code, Licensed
Software and Modified Licensed Software directly against such third
party subject to consultation with GENUITY which consultation shall
consist of the following: GTE and Genuity shall cooperate to resolve
any issues resulting from maintenance by a third party. If a dispute
cannot be resolved within thirty (30) days from the date of notice by
GTE, GTE and Genuity shall each designate an executive to meet and
negotiate in good faith to resolve the dispute. If, despite such good
faith efforts, GTE and Genuity cannot resolve the dispute within thirty
(30)
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days from the date discussions are initiated, GTE may proceed to enforce its rights. The foregoing notwithstanding, GTE may immediately seek injunctive relief to protect GTE's intellectual property rights. The Modified Licensed Software shall be deemed to be Licensed Software for purposes of the License Agreement and shall be subject to the terms and conditions of the License Agreement provided that (i) the license for the Modified Licensed Software as well as all Licensed Software shall be perpetual; and (ii) the Licensed Programs may be provided by GENUITY to and used by customers and end users of Genuity products and services in the ordinary course of business solely for the use of such Genuity services or products by such customers and end users.
(c) Title to Source Code (Including Source Code for Modified Licensed Software)
--------------------------------------------------------------------------- and Modified Licensed Software. GTE shall retain all right, title and ------------------------------ interest in and to the Source Code (excluding the Source Code for (i) that portion of software first created by GTE for Genuity pursuant to an Exclusive Statement of Work; (ii) that portion of software first created by GTE for Genuity that is developed exclusively for Genuity by GTE regardless of whether any Statement of Work expressly indicates that it is an Exclusive Statement of Work; and (iii) software GTE and Genuity mutually agree in writing is owned exclusively by Genuity (collectively "Exclusive Source Code")) including the Source Code for the Modified Licensed Programs and
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the Modified Licensed Software, including all patents, copyrights, trade secrets and other proprietary rights therein or based thereon, and any and all copies, in whole or in part, thereof. Subject to the license granted to GTE pursuant to Section 6.3 of the Software Development Agreement, Genuity shall own the Exclusive Source Code and the object code compiled therefrom, and all intellectual property rights therein, except for any portion of such source code or object code, if any, that is Licensed Software or Modified Licensed Software or a derivative work of Licensed Software or Modified Licensed Software.
Section 2. Participation and Fees. ---------
(a) To the extent GTE and GENUITY agree to use an Escrow Agent, GENUITY and GTE
------- -------
shall each pay to the Escrow Agent one-half of the applicable Escrow Fees
immediately following delivery of the Deposit. If the Source Code has not
been released or otherwise provided by GTE to GENUITY, GENUITY shall cease
------- -------
to be entitled to the future release of any Source Code under this
Agreement upon the first to occur of either (i) the expiration or earlier
termination of the License Agreement or the Transition Services Agreement
or (ii) failure of GENUITY to pay any fees due and payable by GENUITY
------- -------
pursuant to this Agreement. GTE shall notify the Escrow Agent in writing of
any such expiration or termination and shall transmit promptly a copy of
such notice to GENUITY, and Escrow Agent
-------
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shall notify GTE in writing of any such failure to pay any Escrow Fees and
shall transmit promptly a copy of such notice to GENUITY. In the event GTE
-------
gives written notice to Escrow Agent stating that the License Agreement or
Transition Services Agreement has expired or been terminated, or in the
event that Escrow Agent gives GTE written notice that GENUITY has failed to
-------
pay any Annual Escrow Fee and the Source Code has not been released or
otherwise provided to GENUITY, GTE may request return of the Deposit.
-------
Immediately upon receipt of such request, and payment by GTE of the Deposit
Return Fee, Escrow Agent shall return the Deposit to GTE.
(b)
Section 3. Event of Release of the Deposit. --------- -------------------------------
An "Event of Release" shall be deemed to have occurred under this Agreement if:
(a) GTE materially defaults in its obligation under the Transition Services Agreement to maintain and support one or more of the Licensed Programs, and such default has not been cured or otherwise resolved in the manner provided by the Transition Services Agreement, and GENUITY's use of the Affected Licensed
--------- Program is likely to be seriously impaired as a result of the said default; or
(b) GENUITY requests that the Source Code and Deposit be delivered or
------- otherwise provided to GENUITY during the term of this Agreement.
-------
Section 4. Release of the Source Code and Deposit. --------- --------------------------------------
(a) GTE Makes Delivery of Source Code. GTE agrees to provide such Source
---------------------------------
Code after the occurrence of an Event of Release as soon as reasonably
practicable, but no later than sixty (60) days after such Event of
Release.
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(b) Escrow Agent Makes Release of Deposit. To obtain the release of the
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Deposit from the Escrow Agent for a particular Licensed Program (to the
extent the Source Code is a Deposit with the Escrow Agent) following
the occurrence of an Event of Release, GENUITY shall give written
-------
notice to Escrow Agent and GTE of the occurrence of an Event of
Release, which notice shall specify the nature of the Event of Release
and identify with specificity the Program affected (the "Affected
Licensed Program") and, if appropriate, the reasons why GENUITY's use
---------
of such Licensed Program will be seriously impaired. GENUITY and GTE
-------
shall each deliver ...
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