Common use of Software Source Code Clause in Contracts

Software Source Code. 4.2.1 Subject to compliance by the Customer with the terms hereof, Softsense hereby grants to the Customer, a non-exclusive, nontransferable and non-assignable (except as permitted by Section 19) limited license in the source code versions of the Software, all protocols regarding Software and Equipment not otherwise provided to Customer pursuant to this Agreement and all associated documentation (collectively, the "Source Code"), for the purposes of supporting customer's internal use of the Software licensed to Customer under Paragraph 4.1.1 hereof under those circumstances where Customer would be entitled to receive copies of the Source Code versions of the Software and all associated documentation. Nothing in the limited license granted in this Paragraph 4.1.5 shall entitle Customer to make copies of the Software other than as may be permitted under the terms of this Agreement without paying the appropriate license fee to Softsense or to its successors or assigns. Customer shall be entitled to receive a copy of the Source Code version of each Software program then currently licensed and installed at Licensed Sites and at its office location(s) (along with any protocols and associated documentation) only in the event that Softsense is unable or unwilling to (i) substantially fulfill its obligations under the terms of its warranty set forth in Paragraph 4.4.1 hereof or (ii) substantially fulfill its obligations to provide Software support services under the provisions of Section 6 hereof including, without limitation, Softsense's termination, pursuant to Section 11 hereof, of the Software maintenance and support provisions other than for cause, and fulfillment of such obligations are not available from a successor or assignee of Softsense acceptable to Customer (which acceptance shall be in writing and which acceptance shall not be unreasonably withheld) under terms and conditions substantially the same as set forth herein as pertains to the fulfillment of such obligations. Upon receipt of the Source Code version of any Software program, Customer agrees to protect same in accordance with the provisions of Section 8 hereof, specifically taking such action as may be reasonably required to preserve the confidential and trade secret nature of any Source Code. 4.2.2 Until such time as Customer shall become entitled to receive the Source code version of any or all Software licensed and installed at a Licensed Site or at Customer's office location(s), as applicable, appropriate Source Code versions of the Software shall be placed in escrow, at Softsense's sole cost with an escrow agent mutually acceptable to both parties under such terms and conditions that are in conformity with the provisions of this Agreement and which otherwise are mutually agreeable to the parties and the escrow agent. Within two (2) days of delivery of the Source Code version or versions of the Software (including any protocols or associated documentation and any modifications or upgrades to the Source Code, protocols or associated documentation) to the escrow agent, Softsense shall notify Customer in writing as to which Source Code version or versions have been so delivered. Customer may confirm delivery of the Source Code version or versions to the escrow agent by any reasonable means at Customer's sole cost and expense; provided, however that confirmation by inspection of the Source Code by Customer or its agent shall only be with the written consent of Softsense, which consent shall not be unreasonably withheld. 4.2.3 Customer shall be entitled to give the escrow agent a written Notice of Instructions to Release Source Code ("Release Notice") upon the occurrence of any event described in Paragraph 4.2.1 hereof that would entitle Customer to receive any Source Code version or versions. Such Release Notice shall be delivered to the escrow agent with a copy sent to Softsense. In order for a Release Notice to be effective it must be in substantial compliance with the following requirements: (i) Be clearly and conspicuously labeled "Notice of Instructions to Release Source Code"; (ii) Specifically refer to this Agreement by Execution Date and by identification of the parties; (iii) Specifically refer to any written escrow agreement executed in connection herewith by Execution Date and by identifying the parties and the escrow agent; (iv) Specify the nature and circumstances of the event(s) or condition(s) described in Paragraph 4.2.1 hereof that entitle Customer to receive the source code version or versions of the Software; (v) Specifically identify the Software and version or versions thereof for which the Source Code is being sought; (vi) Demand delivery of the relevant Source Code version or versions. 4.2.4 Customer shall provide escrow agent with evidence of Softsense's receipt of the Release Notice, including evidence of the date of such receipt, or, alternatively, evidence of Customer's good faith attempts to provide such Release Notice to Softsense pursuant to the terms of Section 16 hereof when receipt of such Release Notice is either refused by Softsense or otherwise such Release Notice was undeliverable to Softsense. Except as may be otherwise provided hereafter in this Section 4.2, twenty-one (21) days after the earlier of (a) Softsense's receipt of the Release Notice, (b) the date upon which Softsense refused receipt of the Release Notice or (c) the date upon which the escrow agent received evidence from Customer of Customer's good faith attempt to deliver the Release Notice to Softsense which Release Notice was undeliverable, escrow agent shall distribute, deliver and transfer the Source Code version or versions demanded in the Release Notice to Customer and shall simultaneously deliver to Softsense a written notice evidencing such delivery. 4.2.5 Softsense shall have twenty-one (21) days after receipt of its copy of the Release Notice (the "Cure Period") to use its reasonable efforts to determine the grounds upon which Customer claims it is entitled to the demanded Source Code version or versions and to cure any problems giving rise to the Release Notice. To such ends, Customer shall co-operate with any reasonable request of Softsense during the Cure Period. In the event that Softsense, in good faith, believes it has cured or corrected the event(s) or condition(s) allegedly giving rise to the Release Notice, Softsense shall deliver to the escrow agent a letter specifying the cure or correction to the event(s) or condition(s) allegedly giving rise to the Release Notice ("Cure Notice") with a copy of such Cure Notice being sent or delivered to Customer. If upon receipt of the Release Notice Softsense believes, in good faith, that the event(s) or condition(s) alleged in the Release Notice giving rise to such Release Notice did not occur or do not exist or otherwise are events or conditions that are not sufficient to entitle Customer to receive the demanded Source Code version or versions, Softsense shall deliver to the escrow agent, prior to the expiration of the Cure Period, a letter stating specifically the basis and reasons for which it believes that Customer is not entitled to the demanded Source Code version or versions ("Objection Notice") with a copy of such Objection Notice to be sent or delivered to Customer. In the event that Softsense has refused receipt of a Release Notice or in the event that a Release Notice to Softsense was undeliverable after Customer's good faith efforts to deliver such Release Notice, the Cure Period shall commence on either the date receipt of the Release Notice was refused or the date upon which Customer provided escrow agent with evidence that the Release Notice was undeliverable, whichever is appropriate. 4.2.6 Notification to the escrow agent as called for in this Section 4.2 shall be either by hand delivery or by certified mail, postage prepaid, return receipt requested. Notification to either party as called for in this Section 4.2 shall be in accordance with the provisions of Section 16 hereof. Where such notice or notification to a party is a copy of a notice or notification to the escrow agent it shall be delivered or mailed no later than two (2) business days after notification has been delivered or sent to the escrow agent. Either party may withdraw its Release Notice, Cure Notice or Objection Notice at any time by giving written notice of such withdrawal to the escrow agent with a copy of such withdrawal sent to the other party. The parties agree to act in good faith and reasonably with respect to the issuance of any Release Notice, Cure Notice or Objection Notice and to use their best efforts to insure that there is a justifiable basis for issuing such notices and that such justification is reasonably set forth in such notices. 4.2.7 In the event that the escrow agent has received a Release Notice and, in a timely manner, has received either a Cure Notice or an Objection Notice and if neither Customer's or Softsense's notice is withdrawn within ten (10) days of the escrow agent's receipt of the later of such notices, the escrow agent shall immediately refer the dispute to binding arbitration as provided herein. The arbitration proceeding shall be conducted, in accordance with the commercial rules of the American Arbitration Association then prevailing, by a panel of not less than three (3) arbitrators appointed by the American Arbitration Association, at least one of whom must have substantial experience in the field of computer software technology and licensing. The sole issue(s) for arbitration shall be whether an event or condition giving rise to a Release Notice has occurred, whether Customer correctly provided the escrow agent and Softsense with the Release Notice and, when appropriate, whether Softsense properly and timely cured or corrected the event(s) or condition(s) allegedly giving rise to the Release Notice. 4.2.8 If the arbitrators determine that event(s) or condition(s) giving rise to a Release Notice occurred and that Customer acted correctly in providing the escrow agent and Softsense with copies of the Release Notice and that Softsense did not properly and timely cure or correct the event(s) or condition(s) allegedly giving rise to the Release Notice then the arbitrators shall notify the parties and the escrow agent shall immediately distribute, deliver and transfer the demanded Source Code version or versions to Customer. Alternatively, if the arbitrators determine that the event(s) or condition(s) allegedly giving rise to the Release Notice did not occur or that Customer did not act correctly in providing either the escrow agent or Softsense with copies of the Release Notice or that Softsense did properly and timely cure or correct the event(s) or condition(s) giving rise to the Release Notice and that Customer did not act correctly in failing to withdraw the Release Notice, then the arbitrators shall notify the parties and the escrow agent shall not distribute, deliver or transfer the demanded Source Code version or versions of the Software to Customer and the Release Notice shall be deemed extinguished. 4.2.9 The decision of the arbitrators shall be final and binding on Softsense and Customer and may be entered and enforced in any court of competent jurisdiction by either party. Unless the arbitrator shall, for good cause, determine otherwise, the prevailing party in the arbitration proceeding shall be awarded reasonable attorneys' fees, expert witness costs and expenses and all other reasonable costs and expenses incurred directly or indirectly in connection with the proceeding after the escrow agent referred the dispute to arbitration.

Software Source Code. 4.2.1 Subject If MTS is in material breach of any of the maintenance and warranty services pursuant to compliance Addendum B (after the expiration of any applicable cure periods) and such breach is reasonably related to Customer’s inability to operate the OnDemand System in accordance with this Agreement, or MTS otherwise ceases to sell and service the OnDemand System (or systems similar in function) and Customer is, at such time, in rightful possession of the OnDemand System and is not in material breach of this Agreement (after the expiration of any applicable cure periods) except for a material breach by Customer that is in response or related to a prior material breach of this Agreement by MTS, MTS shall provide Customer a license to use and maintain the Licensed Products solely for Customer’s internal business purposes. In addition, in such event, MTS shall provide Customer the source code for the Licensed Software and a license to use such source code solely in connection with the terms hereofuse and maintenance of Customer’s OnDemand System in accordance with the following sentence. Within thirty (30) days after the Acceptance of the first ODE II System , Softsense hereby grants MTS shall escrow with a reputable escrow company reasonably acceptable to MTS and Customer, all source code and related documentation (including programmer’s notes, to the Customerextent embedded in such source code) for the Licensed Software (the “Source Code”). The escrow agreement will provide for the release of the escrowed Licensed Software to Customer under the scenarios described in the first sentence of this Section 11.4 if Customer is then in rightful possession of the OnDemand System, and shall further provide that Customer and MTS shall share equally the fees associated with the initial establishment of the escrow and the annual beneficiary fees. MTS grants Customer a non-exclusive, nontransferable and non-assignable transferable (except as permitted by provided in Section 19) 16.1 below), limited license in to use, modify and create derivative works based on the source code versions of the Software, all protocols regarding Software and Equipment not otherwise provided to Customer pursuant to this Agreement and all associated documentation (collectively, the "Source Code"), in order to use, maintain and improve the Licensed Products solely for Customer’s internal business purposes. Customer covenants and agrees that it will not exercise its rights under the purposes of supporting customer's internal use of the Software licensed to Customer under Paragraph 4.1.1 hereof under those circumstances where Customer would be entitled to receive copies foregoing license until it obtains possession of the Source Code versions of the Software and all associated documentation. Nothing in the limited license granted in this Paragraph 4.1.5 shall entitle Customer to make copies of the Software other than as may be permitted under the terms of this Agreement without paying the appropriate license fee to Softsense or to its successors or assigns. Customer shall be entitled to receive a copy of the Source Code version of each Software program then currently licensed and installed at Licensed Sites and at its office location(s) (along with any protocols and associated documentation) only in the event that Softsense is unable or unwilling to (i) substantially fulfill its obligations under the terms of its warranty set forth in Paragraph 4.4.1 hereof or (ii) substantially fulfill its obligations to provide Software support services under the provisions of Section 6 hereof including, without limitation, Softsense's termination, pursuant to Section 11 hereof, of the Software maintenance and support provisions other than for cause, and fulfillment of such obligations are not available from a successor or assignee of Softsense acceptable to Customer (which acceptance shall be in writing and which acceptance shall not be unreasonably withheld) under terms and conditions substantially the same as set forth herein as pertains to the fulfillment of such obligations. Upon receipt of the Source Code version of any Software program, Customer agrees to protect same in accordance with the provisions of Section 8 hereof, specifically taking such action as may be reasonably required to preserve the confidential and trade secret nature of any Source Code. 4.2.2 Until such time as Customer shall become entitled to receive the Source code version of any or all Software licensed and installed at a Licensed Site or at Customer's office location(s), as applicable, appropriate Source Code versions of the Software shall be placed in escrow, at Softsense's sole cost with an escrow agent mutually acceptable to both parties under such terms and conditions that are in conformity with the provisions of this Agreement and which otherwise are mutually agreeable to the parties and the escrow agent. Within two (2) days of delivery of the Source Code version or versions of the Software (including any protocols or associated documentation and any modifications or upgrades to the Source Code, protocols or associated documentation) to the escrow agent, Softsense shall notify Customer in writing as to which Source Code version or versions have been so delivered. Customer may confirm delivery of the Source Code version or versions to the escrow agent by any reasonable means at Customer's sole cost and expense; provided, however that confirmation by inspection of the Source Code by Customer or its agent shall only be with the written consent of Softsense, which consent shall not be unreasonably withheldagreement described above. 4.2.3 Customer shall be entitled to give the escrow agent a written Notice of Instructions to Release Source Code ("Release Notice") upon the occurrence of any event described in Paragraph 4.2.1 hereof that would entitle Customer to receive any Source Code version or versions. Such Release Notice shall be delivered to the escrow agent with a copy sent to Softsense. In order for a Release Notice to be effective it must be in substantial compliance with the following requirements: (i) Be clearly and conspicuously labeled "Notice of Instructions to Release Source Code"; (ii) Specifically refer to this Agreement by Execution Date and by identification of the parties; (iii) Specifically refer to any written escrow agreement executed in connection herewith by Execution Date and by identifying the parties and the escrow agent; (iv) Specify the nature and circumstances of the event(s) or condition(s) described in Paragraph 4.2.1 hereof that entitle Customer to receive the source code version or versions of the Software; (v) Specifically identify the Software and version or versions thereof for which the Source Code is being sought; (vi) Demand delivery of the relevant Source Code version or versions. 4.2.4 Customer shall provide escrow agent with evidence of Softsense's receipt of the Release Notice, including evidence of the date of such receipt, or, alternatively, evidence of Customer's good faith attempts to provide such Release Notice to Softsense pursuant to the terms of Section 16 hereof when receipt of such Release Notice is either refused by Softsense or otherwise such Release Notice was undeliverable to Softsense. Except as may be otherwise provided hereafter in this Section 4.2, twenty-one (21) days after the earlier of (a) Softsense's receipt of the Release Notice, (b) the date upon which Softsense refused receipt of the Release Notice or (c) the date upon which the escrow agent received evidence from Customer of Customer's good faith attempt to deliver the Release Notice to Softsense which Release Notice was undeliverable, escrow agent shall distribute, deliver and transfer the Source Code version or versions demanded in the Release Notice to Customer and shall simultaneously deliver to Softsense a written notice evidencing such delivery. 4.2.5 Softsense shall have twenty-one (21) days after receipt of its copy of the Release Notice (the "Cure Period") to use its reasonable efforts to determine the grounds upon which Customer claims it is entitled to the demanded Source Code version or versions and to cure any problems giving rise to the Release Notice. To such ends, Customer shall co-operate with any reasonable request of Softsense during the Cure Period. In the event that Softsense, in good faith, believes it has cured or corrected the event(s) or condition(s) allegedly giving rise to the Release Notice, Softsense shall deliver to the escrow agent a letter specifying the cure or correction to the event(s) or condition(s) allegedly giving rise to the Release Notice ("Cure Notice") with a copy of such Cure Notice being sent or delivered to Customer. If upon receipt of the Release Notice Softsense believes, in good faith, that the event(s) or condition(s) alleged in the Release Notice giving rise to such Release Notice did not occur or do not exist or otherwise are events or conditions that are not sufficient to entitle Customer to receive the demanded Source Code version or versions, Softsense shall deliver to the escrow agent, prior to the expiration of the Cure Period, a letter stating specifically the basis and reasons for which it believes that Customer is not entitled to the demanded Source Code version or versions ("Objection Notice") with a copy of such Objection Notice to be sent or delivered to Customer. In the event that Softsense has refused receipt of a Release Notice or in the event that a Release Notice to Softsense was undeliverable after Customer's good faith efforts to deliver such Release Notice, the Cure Period shall commence on either the date receipt of the Release Notice was refused or the date upon which Customer provided escrow agent with evidence that the Release Notice was undeliverable, whichever is appropriate. 4.2.6 Notification to the escrow agent as called for in this Section 4.2 shall be either by hand delivery or by certified mail, postage prepaid, return receipt requested. Notification to either party as called for in this Section 4.2 shall be in accordance with the provisions of Section 16 hereof. Where such notice or notification to a party is a copy of a notice or notification to the escrow agent it shall be delivered or mailed no later than two (2) business days after notification has been delivered or sent to the escrow agent. Either party may withdraw its Release Notice, Cure Notice or Objection Notice at any time by giving written notice of such withdrawal to the escrow agent with a copy of such withdrawal sent to the other party. The parties agree to act in good faith and reasonably with respect to the issuance of any Release Notice, Cure Notice or Objection Notice and to use their best efforts to insure that there is a justifiable basis for issuing such notices and that such justification is reasonably set forth in such notices. 4.2.7 In the event that the escrow agent has received a Release Notice and, in a timely manner, has received either a Cure Notice or an Objection Notice and if neither Customer's or Softsense's notice is withdrawn within ten (10) days of the escrow agent's receipt of the later of such notices, the escrow agent shall immediately refer the dispute to binding arbitration as provided herein. The arbitration proceeding shall be conducted, in accordance with the commercial rules of the American Arbitration Association then prevailing, by a panel of not less than three (3) arbitrators appointed by the American Arbitration Association, at least one of whom must have substantial experience in the field of computer software technology and licensing. The sole issue(s) for arbitration shall be whether an event or condition giving rise to a Release Notice has occurred, whether Customer correctly provided the escrow agent and Softsense with the Release Notice and, when appropriate, whether Softsense properly and timely cured or corrected the event(s) or condition(s) allegedly giving rise to the Release Notice. 4.2.8 If the arbitrators determine that event(s) or condition(s) giving rise to a Release Notice occurred and that Customer acted correctly in providing the escrow agent and Softsense with copies of the Release Notice and that Softsense did not properly and timely cure or correct the event(s) or condition(s) allegedly giving rise to the Release Notice then the arbitrators shall notify the parties and the escrow agent shall immediately distribute, deliver and transfer the demanded Source Code version or versions to Customer. Alternatively, if the arbitrators determine that the event(s) or condition(s) allegedly giving rise to the Release Notice did not occur or that Customer did not act correctly in providing either the escrow agent or Softsense with copies of the Release Notice or that Softsense did properly and timely cure or correct the event(s) or condition(s) giving rise to the Release Notice and that Customer did not act correctly in failing to withdraw the Release Notice, then the arbitrators shall notify the parties and the escrow agent shall not distribute, deliver or transfer the demanded Source Code version or versions of the Software to Customer and the Release Notice shall be deemed extinguished. 4.2.9 The decision of the arbitrators shall be final and binding on Softsense and Customer and may be entered and enforced in any court of competent jurisdiction by either party. Unless the arbitrator shall, for good cause, determine otherwise, the prevailing party in the arbitration proceeding shall be awarded reasonable attorneys' fees, expert witness costs and expenses and all other reasonable costs and expenses incurred directly or indirectly in connection with the proceeding after the escrow agent referred the dispute to arbitration.