Software Escrow Agreement

SOFTWARE ESCROW AGREEMENT


This Escrow Agreement ("Agreement") is made as of this 18th day of February, 2000, by and between Summus, Ltd. ("Licensor"), Fort Knox Escrow Services, Inc. ("Fort Knox") and High Speed Net Solutions, Inc. ("Licensee").


PRELIMINARY STATEMENT. Licensor and Licensee have entered into a Software License Agreement and Software Maintenance Agreement, both dated February 18, 2000 (together, the "License Documents"), pursuant to which Licensee has rights to receive Licensor's MaxxSystem software product, including New Versions as defined in the License Documents (all together, the "Licensed Software"). Licensor intends to deliver to Fort Knox a sealed package containing magnetic tapes, disks, disk packs, or other forms of media, in machine readable form, and the written documentation prepared in connection therewith, containing the source code of the Licensed Software (the "Deposit Materials"). Licensor desires Fort Knox to hold the Deposit Materials, and, upon certain events, deliver the Deposit Materials to Licensee, in accordance with the terms hereof.


Now, therefore, in consideration of the foregoing, of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


1. DELIVERY BY LICENSOR. Within thirty (30) days of each delivery of each new object code version of Licensed Software to Licensee, Licensor shall provide to Fort Knox a new set of Deposit Materials containing the complete source code for the then current version of Licensed Software provided to Licensee under the License Documents, together with a copy of Exhibit B to this Agreement, completed with a description of the Deposit Materials. Each set of Deposit Materials shall contain commented source code, proprietary Summus tools and lists of any commercially available products required to compile the source code, and all information in human-readable form and on suitable media to enable a reasonably skilled programmer or analyst to understand, maintain and correct the Licensed Software without the assistance of any other person. Licensor shall be solely responsible for delivering to Fort Knox the Deposit Materials. Fort Knox shall hold the Deposit Materials in accordance with the terms hereof. Fort Knox shall have no obligation to verify the completeness or accuracy of the Deposit Materials.


2. DUPLICATION. Fort Knox may duplicate the Deposit Materials by any means in order to comply with the terms and provisions of this Agreement, provided that Licensee shall bear the expense of duplication. Alternatively, Fort Knox, by notice to Licensor, may require Licensor to reasonably promptly duplicate the Deposit Materials.


3. NOTIFICATION OF DEPOSITS. Simultaneous with the delivery to Fort Knox of each set of Deposit Materials, Licensor shall deliver to Fort Knox and to Licensee a written statement specifically identifying all items deposited and stating that the Deposit, so deposited have been inspected by Licensor and are complete and accurate.


4. DELIVERY BY FORT KNOX


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4.1 DELIVERY BY FORT KNOX TO LICENSEE. Fort Knox shall deliver the Deposit Materials, or a copy thereof, to Licensee only in the event that:


(a) Licensor notifies Fort Knox to effect such delivery to Licensee at a specific address, the notification being accompanied by a check payable to Fort Knox in the amount of one hundred dollars ($100.00); or


(b) Fort Knox receives from Licensee:


(i) written notification that Licensor
has failed in a material respect to
support the Licensed Software as
required by the License Documents
or that Licensor has otherwise
defaulted in a material respect
under the License Documents
("Licensor Default") and any
applicable cure period under the
License Documents has expired;


(ii) evidence satisfactory to Fort Knox
that Licensee has previously
notified Licensor of such Licensor
Default in writing;


(iii) a written demand that the Deposit
Materials be released and delivered
to Licensee;


(iv) a written undertaking from the
Licensee that the Deposit Materials
being supplied to the Licensee will
be used only as permitted under the
terms of the License Agreement;


(v) specific instructions from the
Licensee for this delivery; and


(vi) a check payable to Fort Knox in the
amount of one hundred dollars
($100.00).


(c) If the provisions of paragraphs 4.1(a) or 4.1(b) are satisfied, and Fort Knox does not receive an Objection Notice within the Objection Period pursuant to paragraph (d) below, Fort Knox shall, within five (5) business days after receipt of the notification and check specified in paragraph 4.1(a) and expiration of the Objection Period, deliver the Deposit Materials in accordance with the applicable instructions. Fort Knox shall not release the Deposit Materials if it receives an Objection Notice within the Objection Period absent a court order, final order of arbitration or joint written instructions of the Licensor and Licensee.


(d) Fort Knox shall, within five (5) business days after receipt of all the documents specified in paragraph 4.1(b), send by certified mail to Licensor a photostatic copy of all such documents. Licensor shall have fifteen (15) days from the date on which Licensor receives such documents ("Objection Period") to notify Fort Knox of its objection ("Objection Notice") to the proposed release of the Deposit Materials to Licensee and to request that the issue of Licensee's entitlement to a copy of the Deposit Materials be submitted to arbitration in accordance with the following provisions:


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(i) If Licensor shall send an Objection
Notice to Fort Knox during the
Objection Period, the matter shall
be submitted to, and settled by
arbitration by, a panel of three
(3) arbitrators chosen by the
Atlanta Regional Office of the
American Arbitration Association in
accordance with the rules of the
American Arbitration Association.
The arbitrators shall apply Georgia
law. At least one (1) arbitrator
shall be reasonably familiar with
the computer software industry. The
decision of the arbitrators shall
be binding and conclusive on all
parties involved, and judgment upon
their decision may be entered in a
court of competent jurisdiction.
All costs of the arbitration
incurred by Fort Knox, including
reasonable attorneys' fees and
costs, shall be paid by the party
which does not prevail in the
arbitration; provide ...