Attachment K SAMPLE SOFTWARE ESCROW AGREEMENT ...

Attachment K
SAMPLE SOFTWARE ESCROW AGREEMENT
GRANTS LIFECYCLE MANAGEMENT SOFTWARE SYSTEM CONTRACT
Between
MDP and _____________
THIS SOFTWARE ESCROW AGREEMENT (the "Escrow Agreement") is by and
between __________. (hereinafter referred to as "___________"),
_________________________________, and ___________________________
____________________________________________________________________________
____________________________________________________________________________
(hereinafter referred to as "Escrow Agent") for the benefit of the STATE OF MARYLAND
acting by and through the MARYLAND HISTORICAL TRUST, an INSTRUMENTALITY of
the State of Maryland in the MARYLAND DEPARTMENT OF PLANNING ("MDP")
(hereinafter referred to as "End-User" or "MHT") 100 Community Place, Crownsville, Maryland
21032 which has the right to enforce this Escrow Agreement and which is a signatory to this
Escrow Agreement for the purpose of assenting to the terms and conditions herein.
__________'s federal tax identification number is ______________.
____________ and End-User have entered into an agreement for the purchase,
installation and maintenance of Grants Lifecycle Management Software System (the "Contract”).
The Contract requires ___________ to place the applicable Source Codes for the Application
Software in escrow. Now therefore, ________ and the Escrow Agent hereby agree as follows:
Section 1. Definitions:
a) "Application Software" – All ____________ software licenses to End-User as of
the date of this Escrow Agreement as well as any additional software license or enhancements
that may be purchased by End-User at a future date pursuant to the terms of the Agreement for
Software Maintenance and Enhancements of this equal date. As of the date of this Agreement the
software applications licensed to End-User are:
______________________________________________________________________________
______________________________________________________________________________
b) "Releases" – New, enhanced and updated versions of the software that may be
distributed by ____________ in ordinary course of its business. Releases may be developed by
____________ as a result of its on-going maintenance of the software, or to correct malfunctions
or operational problems, or as a request from End-User or other clients that is subsequently made
a part of the software, or to remain current with federal law or regulation in connection with End-
User's business practices as they relate directly to the Application Software. These shall also be
known as "Updated Sources".
c) "Modified Sources" – modified versions of the Source Codes for all
Application Software as modified for End-User and installed at the End-User's place of business.

d) "Versions" – Substantial changes to the Application Software for which
____________ issues a Release and updates the identity number associated with the Application
Software. Example: ____________________________
e) "Enhancements" – General changes to the Applications Software requested by
End-User.
f) "Media" – All magnetic tapes, microfiche, disks, compact discs or any future
technology which contains the Source Codes.
g) "Source Codes" – Machine instructions for unique Application Software
computer programs for the End-User.
h) "Original Source Codes" – "Source Codes" without modifications or version
releases applied to it.
Section 2. ____________ will deliver to the Escrow Agent within 30 days of the
effective date of this Escrow Agreement, all Source Codes which meet the standard
specifications for all Applications Software specified in the Contract. All Sources Codes
referred to in this Escrow Agreement, whether they be Original Sources, Modified Sources or
Releases, are the program instructions for the applicable versions of the Applications Software
encoded in high level language(s) which are compatible with, and are stored on, media
compatible with the computer software purchased by End-User under the Contract. Any
reference in this Escrow Agreement to media means such compatible media containing the
applicable Source Code(s).
Section 3. ____________ will deliver the Escrow Agent, in accordance with the time
period specified in this Escrow Agreement, modified versions of the Source Codes for all
Application Software as modified for End-User and installed at the End-User's place of business.
Section 4. Each Modified Source delivered to the Escrow Agent pursuant to Section 3 of
this Escrow Agreement, shall correspond to the version of each Application Software as
currently installed at the End-User's place of business and accepted by End-User, and at the
option of End-User shall have been tested and sealed by the End-User and stored on media.
These Modified Sources shall be delivered to the Escrow Agent without 60 days of acceptance of
such Application Software by End-User, marked as Modified Sources, dated, and sealed after an
opportunity for physical inspection by the Escrow Agent pursuant to Section 7, and shall be
maintained by the Escrow Agent throughout the term of this Escrow Agreement, except in the
event of a substituted Modified Source, sealed and labeled and retained in accordance with
Section 3. Upon the first receipt of a sealed Modified Source for a Application Software, the
Escrow Agent shall release to ____________ the media containing the corresponding Standard
Source for that Application Software which was placed in escrow in accordance with Section 2.
Section 5. All media containing Source Codes will be placed in the custody of the
Escrow Agent in accordance with Section 7 in sealed container which will bear identification as
to the End-Users name and address, the date, version, and name of the Application Software and

whether the media contains an Original, Modified, or Updated Source. All media containing
Source Codes will be stored by the Escrow Agent in a fireproof vault or safe, and the Escrow
Agent shall ensure that they are not exposed to x-ray, magnetic force, sunlight, damaging heat or
humidity.
Section 6. The Escrow Agent shall inform the End-User in writing within thirty (30)
days after receipt of the media containing any Source Codes that have been deposited in escrow,
detailing the identification information on the sealed container(s) and the location of the place of
escrow in sufficient detail to allow the End-User to locate such place and the media containing
the Source Codes.
Section 7. Before sealing, the Escrow Agent shall have the right to inspect all media
containing Source Codes delivered. Should the Escrow Agent waive its right to inspect before
sealing, such waiver shall be made in writing to ____________ and to End-User. If the right to
inspect is exercised, the purpose of this inspection shall be to determine the physical condition of
the media containing the Source Codes. If the Escrow Agent notes any visible damage, or if the
Escrow Agent is doubtful as to whether damage exists, the Escrow Agent shall request, and
______ shall provide, additional media containing appropriate Source Codes. The Escrow Agent
shall request, and ____________ shall provide, additional media containing appropriate Source
Codes. The Escrow Agent, once in possession of any media containing a Source Code, shall be
liable for the loss of such media of the Source Code which it contains or damage to the media or
to the Source Code which it contains caused by any acts of negligence. However, the Escrow
Agent shall not be held liable for any damage caused by acts of God including corruption of the
storage environment due to loss of electrical power beyond the Escrow Agent's control.
Section 8. The Escrow Agent shall receive payment from ____________ for the services
described herein in accordance with a schedule of compensation established by ____________
and the Escrow Agent.
Section 9. If the End-User is to receive any media containing Source Codes held in
escrow in accordance with the terms of this Escrow Agreement, the End-User must collect in
person all such media held by the Escrow Agent. The End-User, upon receipt of all such media,
shall inspect them for signs of visible damage.
Section 10. The Escrow Agent shall not be held liable for the visible physical condition
of any media released to End-User in accordance with Section 9 of this Escrow Agreement for
which End-User has signed a release stating that such media are not visibly damaged.
Section 11. Every six (6) months ____________ shall deliver to the Escrow Agent
subsequent releases that have been made thereto. Should there be no new releases
____________ will deliver to the Escrow Agent and to the End-User a notification stating the
same.
Section 12. Modified Sources shall not be removed unless End-User exercises its annual
option to view, test and cause ____________ to replace updated Source Codes for the Modified
Sources. Such updated Modified Sources are to be sealed, dated and labeled as Modified

Sources and retained by the Escrow Agent for the remainder of the term of this Escrow
Agreement, unless itself replaced by a subsequent Modified Source. At End-User's option any
Modified Sources shall be stored on the appropriate media.
Section 13. Once within every twelve-month period on a date previously agreed to by
____________ and the Escrow Agent, duly authorized representatives of ____________ and the
Escrow Agent shall be present together at the above-described vault or safe of the Escrow Agent
for the purpose of making a physical inventory of the sealed Source Codes in escrow. To ensure
against deterioration of the physical condition of Original Source Codes and Releases, at every
inventory, ____________ shall replace Original Source Codes and Releases, if any, by new
media containing identical Source Codes. The Escrow Agent shall report in writing to the End-
User and to ____________ within fifteen (15) days the results of such inventory and shall attach
a report of any delinquency in payments by ____________ to the Escrow Agent under the
schedule of compensation for the services rendered under this Escrow Agreement.
Section 14. ____________ further agrees to provide the End-User with an independent
legal opinion stating ____________'s status with respect to filing for involuntary or voluntary
bankruptcy, involuntary reorganization, receivership or voluntary liquidation in the county in
which ____________ is incorporated; (i) on an annual basis no later than September 1 of each
year, and (ii) within 15 days of any such filing or action.
Section 15. The Escrow Agent will be authorized to release and must release to the End-
User the media containing all Updated, Modified and/or Original Sources for a Application
Software requested, plus the media containing all Updated, Modified and/or Original Sources for
application software in accordance with Section 16 or 17 below upon receipt of notice from End-
User that any of the following has occurred:
a) ____________ fails either:
(i)
to offer End-User an Application Software identified in the Contract; or
(ii) to perform modifications as requested by End-User in a reasonable period
of time, at standard hourly rates; or
(iii) to complete acceptance test procedures under the Contract for an
Application Software as therein; or
(iv) to perform modifications as requested by End-User in a reasonable
number of hours within a reasonable period of time, and to complete acceptance test procedures
for any enhancements, or for any other Application Software which ____________ agrees to
provide to End-User under the Contract or any amendment thereto; or
(v)
Agreement; or
to fulfill any warranty or covenant of the Contract, or of this Escrow
b) ____________ fails either:

(i) to provide a renewal of any Perpetual Software License And Maintenance
Schedule then in effect between the parties, containing at a minimum the same services then
being provided, at prices in accordance with the Agreement; or if no Agreement for Software
Maintenance and Enhancements should be in effect between the parties, and ____________ fails
to provide at End-User's request, an Agreement for Software Maintenance and Enhancements,
substantially the same as the most recent expired included in the Contract to which this Escrow
Agreement is attached; or
(ii) to perform satisfactorily under any Perpetual Software License And
Maintenance Schedule then in effect between the parties; or
(iii)
to perform satisfactorily under this Escrow Agreement; or
(iv) to pay the Escrow Agent when due the compensation for services under
this Escrow Agreement, the failure of which has not been cured within 60 days; or
(v) to offer any Application Software specified in the Contract or to make
modifications to such Application Software under the Contract or under any Perpetual Software
License And Maintenance Schedule compatible with, and on media compatible with, the
computer hardware and operating system currently installed at End-User's place of business
pursuant to the Contract.
c) the Escrow Agent receives notice that the Maryland State Board of Contract Appeals
has determined that ____________ has failed to perform or has otherwise defaulted under the
Contract and no further appeal of such determination has been timely made by ____________.
d) the Escrow Agent receives notice that any court of competent jurisdiction has
determined that ____________ has failed to perform or has otherwise defaulted under the
Contract between the parties.
e) ____________ ceases to exist due to voluntary or involuntary liquidations,
bankruptcy, merger or acquisition, appointment of receivership and any insolvency or
reorganization, recognized in Title II of the United States Bankruptcy Code, of the corporation
and the End-User gives notice under oath to the Escrow Agent or provides the Escrow Agent
with a copy of the independent legal opinion provided in Section 14 of this Escrow Agreement
verifying such facts.
f) ____________ within sixty (60) days fails to lift any execution, garnishment
attachment of such consequence as will impair its ability to carry on its operations; the
assignment of assets by ____________ for the benefit of its creditors; the entry by
____________ into an agreement of composition with its creditors; or the appointment by order,
judgment or decree of a court of competent jurisdiction of a receiver of the whole or a substantial
portion of the property of ____________ (unless such order, judgment or decree is stayed within
a period of sixty (60) days of the date of such order judgment or decree or unless such receiver is
removed or discharged within sixty (60) days of the date of his qualification) and the End-User

provides the Escrow Agent with a copy of a legal opinion as provided for in Section 14 such a
claim, or gives the Escrow Agent notice under oath that any of the conditions of this subsection
have been met.
Section 16. In order for the End-User to make a claim for the media containing Standard,
Modified and/or Updated Sources for an Application Software and for Application Software
under Section 15, End-User must send to the Escrow Agent a request for such media
accompanied by notice of the applicable ____________ failure. The Escrow Agent shall notify
____________ immediately upon the receipt of such documents, and shall send a copy of such
notice to ____________. If ____________ fails to submit to the Escrow Agent within 30 days
of such notice to ____________ either (i) a signed statement by the End-User withdrawing the
request for media containing Source Codes, or (ii) a copy of an appeal filed by ____________
with the Maryland State Board of Contract Appeals disputing End-User's right to obtain the
Source Codes, then the Escrow Agent shall release to the End-User the requested media
containing Source Codes in accordance with Section 18. ____________ shall take all necessary
or appropriate steps to cooperate with End-User in accomplishing a speedy resolution of any
dispute.
Section 17. If ____________ has not remedied any delinquency in payments to the
Escrow Agent for services hereunder within 60 days of receipt of notice of such delinquency, the
Escrow Agent shall immediately notify the End-User that the media containing Source Codes are
available for release, in accordance with Section 15.b)(v), and shall release such media to End-
User.
Section 18. The Escrow Agent shall maintain the media containing Source Codes in
escrow for a period of twelve (12) months from the date of notice of the event which triggers
release of such media pursuant to Sections 15, 16 and 17 of this Escrow Agreement, unless any
such media has been previously released to the End-User, after which the obligations of the
Escrow Agent hereunder with respect to any such media released in good condition in
accordance with the requirements of Section 5 of this Escrow Agreement or held for 12 months
after notice of availability for release in such condition shall cease and the provisions herein shall
no longer be applicable to such media. However, should litigation be unresolved at the end of
the 12 month period, the Escrow Agent shall deposit applicable media containing Source Codes
with the Clerk of the Court, pursuant to Section 29.
Section 19. The Escrow Agent may not assign any of its rights or duties hereunder
without the prior written consent of ____________ and the End-User.
Section 20. The Escrow Agent agrees to act as Escrow Agent for a term of one (1) year
from the date this Escrow Agreement takes effect. The Escrow Agent may resign at the end of
this term or any renewal term by giving written notice to ____________ and End-User at least
sixty (60) days prior to the expiration of any effective term. This Escrow Agreement shall be
renewable upon the anniversary of its execution provided ____________ and the Escrow Agent
have executed a renewal of this Escrow Agreement at least 60 days prior to expiration of a term
and End-User has approved such renewal by the date of that anniversary.

Section 21. In the event the Escrow Agent declines to continue to serve, or this Escrow
Agreement is otherwise not renewed, during the 60 day notice period ____________ shall
diligently and in good faith seek to obtain the services of a successor escrow agent acceptable to
End-User to provide service under conditions substantially similar to those contained in this
Escrow Agreement. Should such a successor escrow agent not have been secured by the end of
the prevailing term of this Escrow Agreement or its renewal, the Escrow Agent shall safely
convey all media containing Source Codes for Application Software obtained by the End-User
into the custody of a provisional escrow agent selected by the End-User.
Section 22. No person, firm, corporation or other entity will be recognized by the
Escrow Agent as a successor, heir or personal representative of ____________ or End-User until
there shall be presented to the Escrow Agent evidence reasonably satisfactory to it of such
succession.
Section 23. The Escrow Agent shall have no duties or responsibilities except as
expressly provided in this Escrow Agreement and shall have no liability or responsibility arising
under any other agreement to which the Escrow Agent is not a party, even though reference
thereto may be made herein or a copy thereof attached hereto. However, the Escrow Agent shall
be bound to perform as required hereunder, notwithstanding any separate agreement, or the terms
of any separate schedule of compensation, to which the End-User is not a party, and the End-
User shall have the right to enforce this Escrow Agreement.
Section 24. The Escrow Agent shall not be responsible for the misrepresentation of the
identity, authority or rights of any person, firm, corporation or other entity, executing, or
delivering or purporting to execute or deliver this Escrow Agreement or any document, media
containing Source Codes deposited hereunder for any endorsement thereof or assignment
thereof, or documents required for reliance or release. However, the Escrow Agent shall make
reasonable efforts to confirm the proper identity, authority and rights of such person, firm or
entity.
Section 25. The Escrow Agent shall not be responsible for the title to, or the sufficiency,
genuineness or validity of the contents of any document or Source Codes deposited or to be
deposited with it in escrow pursuant to any provisions of this Escrow Agreement or of any
endorsement thereon or assignment thereof, but shall exercise reasonable care in all matters
associated with such documents and Source Codes.
Section 26. After reasonable attempts by the Escrow Agent to confirm validity and
sufficiency of documents presented, the Escrow Agent may rely upon any instrument of writing
reasonably believed by it to be genuine and sufficient and properly presented, and shall not be
liable or responsible for any action taken or omitted in accordance with the provisions thereof.
Section 27. The Escrow Agent shall not be liable or responsible for any act it may do or
omit to do in the exercise of reasonable care.
Section 28. In case any property held by the Escrow Agent hereunder shall be attached,
garnished or levied upon under any order of court, or the delivery thereof shall be stayed or

enjoined by any order of court, or any other order, judgment or decree shall be made or entered
by any court affecting such property, or any part thereof, or any act of the Escrow Agent, the
Escrow Agent is hereby expressly authorized in its sole discretion to obey and comply with all
writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction,
and in case the Escrow Agent obeys and complies with any such writ, order, judgment or decree
it shall not be liable to ____________ or End-User, their successors, heirs, or personal
representatives or to any other person, firm or corporation, by reason of such compliance
notwithstanding that such writ, order, judgment or decree be subsequently reversed, modified,
annulled, set aside or vacated.
Section 29. In the event of doubt by the Escrow Agent as to its duties or liabilities under
the provisions of this Escrow Agreement, unless ____________ and the End-User provide
evidence in writing to the Escrow Agent that they mutually agree to the disbursement or
retention of any media containing Source Codes, the Escrow Agent shall continue to hold such
media which is the subject of this Escrow Agreement until (i) a determination respecting
disposition of such media is made by the Maryland State Board of Contract Appeals, when such
determination is not appealed in a timely fashion; or (ii) a judgment by a court of competent
jurisdiction determining the rights of the parties to the media containing the Source Codes.
However, should suit be filed or appeal taken to a court of competent jurisdiction and such
litigation be unresolved 60 days before the end of the term of this Escrow Agreement and
renewal hereof, the Escrow Agent may deposit the disputed media containing Source Codes then
held pursuant to the Escrow Agreement with the Clerk of the Circuit Court of the County having
jurisdiction over the dispute and, upon immediate notification of such action to ____________
and End-User, all liability on the part of the Escrow Agent with respect to its actions relating to
such deposited media from the date after such deposit, shall fully terminate. In the event of any
edit between ____________ and the End-User wherein the Escrow Agent is made a party by
virtue of acting as such Escrow Agent hereunder, or in the event of any suit wherein Escrow
Agent interpleads the subject matter of this Escrow Agreement, the Escrow Agent agrees to
submit to suit in the State of Maryland, and, unless itself liable, shall be entitled to recover from
the parties reasonable attorney's fees and costs incurred, said fees and costs to be charged and
assessed as court costs in favor of the prevailing party. ____________ and End-User agree that
the Escrow Agent shall not be liable to them or to any other person, corporation or other entity
for monies and other property subject to this Escrow Agreement, except for misdelivery thereof
due to willful or negligent breach of this Escrow Agreement or other negligence on the part of
the Escrow Agent in performance of its obligations hereunder.
Section 30. Any notices required or permitted under this Escrow Agreement shall be in
writing and delivered in person or sent by registered or certified mail, return receipt requested
with proper postage prepaid, properly addressed as set forth below unless otherwise directed in
writing by ____________, Escrow Agent or End-User. Notice shall be effective the date noted
on the return receipt card, or upon delivery, if delivered in person.
For :____________
Name: _______________________________

Title:: ________________________________
____________
Address:_______________________________
________________________________
For ESCROW AGENT:
Name: _______________________________
Title:: ________________________________
______________________________________
(Escrow Agent)
Address:_______________________________
________________________________
For END-USER:
_____________, MDP Project Manager
STATE OF MARYLAND
DEPARTMENT OF PLANNING
Division of Information Technology
301 W. Preston Street
Baltimore, Maryland 21201-2365
Section 31. The Escrow Agent shall be entitled to reasonable compensation for the
services performed herein. The cost of maintaining this Escrow Agreement shall be borne by
____________ as provided in a separate schedule of compensation.
Section 32. The Escrow Agent may employ agents and attorneys for the reasonable
protection of the escrow property held hereunder and of itself in its capacity as Escrow Agent
hereunder, and shall have a lien on the escrow property for compensation and for any such costs,
expenses and attorneys' fees reasonably incurred by it. ____________ agrees to compensate the
Escrow Agent for its services under this Escrow Agreement. If the End-User attempts to collect
the media held in escrow pursuant to this Escrow Agreement and ____________ is delinquent in
payment of the Escrow Agent's compensation, the Escrow Agent may hold all media held in
escrow until such time as such delinquent compensation is paid. If the End-User pays such

delinquent compensation in order to obtain the media containing Source Codes, the End-User
may only recover such amounts from ____________ or its successors or assigns.
Section 33. If the Escrow Agent fails to fulfill its obligations under this Escrow
Agreement properly and on time, or otherwise violates any provision of this Escrow Agreement,
the End-User may request in writing that ____________ terminate this Escrow Agreement. The
notice shall specify the acts or omissions which give cause for termination. In the event of
termination under this Section 33, the Escrow Agent shall convey the media containing Source
Codes safely and in good condition into the custody of a provisional escrow agent designated by
End-User and to this purpose shall maintain the media containing Source Codes in escrow in
good condition for a period of up to 60 days from receipt of notice of termination.
Section 34. This Escrow Agreement shall be construed and enforced according to the
laws of the State of Maryland.
Section 35. This Escrow Agreement is required under and is a part of the Agreement
which constitutes the entire agreement between ____________ and End-User, and shall remain
in effect until rescinded or modified in writing executed and agreed to by the Escrow Agent,
____________, and End-User, or notice of resignation in accordance with Section 20, or
termination in accordance with Section 33.
Section 36. This Escrow Agreement shall take effect upon final execution by all parties
of this Escrow Agreement and of the entire Agreement of which this Escrow Agreement forms a
part.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be
executed by their respective duly authorized officers as of the dates specified below.
ATTEST:
____________________
___________________________
By: ___________________________________
_______________________________________
(Name and Title)
_______________________________________
(Date)
______________________________________
(Escrow Agent Company)
____________________________
By: ___________________________________
_______________________________________
(Name and Title)
_______________________________________
(Date)
WITNESS:
ASSENT-OF THE
STATE OF MARYLAND ACTING BY AND
THROUGH THE MARYLANDDEPARTMENT
OF PLANNING
___________________________
By: __________________________________
______________________________________
(Name and Title)
______________________________________
(Date)

STATE OF ______________________, COUNTY OF ___________________, To Wit:
I HEREBY CERTIFY that on this ____ day of __________________, 20 __, before me,
the subscriber, a Notary Public in and for the State and County aforesaid, personally appeared
__________________________________________________ (Name) of ____________, who
acknowledged that (s)he executed the within Software Escrow Agreement for the purposes
contained therein as the duly authorized ____________________________________(Title)
of ____________.
WITNESS my hand and notarial seal.
_______________________________________
Notary Public
My commission expires: __________________
STATE OF ______________________, COUNTY OF ___________________, To Wit:
I HEREBY CERTIFY that on this ____ day of __________________, 20 __, before me,
the subscriber, a Notary Public in and for the State and County aforesaid, personally appeared
__________________________________________________ (Name) of
____________________________________________________(Escrow Agent Company) who
acknowledged that (s)he executed the within Software Escrow Agreement for the purposes
contained therein as the duly authorized ____________________________________(Title)
of __________________________________________________(Escrow Agent Company).
WITNESS my hand and notarial seal.
_______________________________________
Notary Public
My commission expires: __________________