Common use of Source Code Escrow Clause in Contracts

Source Code Escrow. In the event that (i) IM becomes insolvent or bankrupt, (ii) IM makes an assignment for the benefit of creditors, (iii) IM consents to a trustee or receiver appointment, (iv) a trustee or receiver is appointed for IM or for a substantial part of its property without its consent, (v) IM voluntarily initiates bankruptcy, insolvency, or reorganization proceedings, or is the subject of involuntary bankruptcy, insolvency, or reorganization proceedings, or (vi) IM announces that it has entered into an agreement to be acquired by a then named Competitor, then IM and ATMI will negotiate in good faith to enter into a source code escrow agreement with Iron Mountain Incorporated in a form provided by Iron Mountain Incorporated (or if Iron Mountain Incorporated is no longer engaging in the source code escrow business, a mutually agreed source code escrow company) setting forth source code escrow deposit procedures and source code release procedures relating to Informatics Software. Notwithstanding the foregoing, the escrow instructions shall provide for a release of the source code to ATMI of the Informatics Software only upon the occurrence of (a) the filing of a Chapter 7 bankruptcy petition by IM, or a petition by IM to convert a Chapter 11 filing to a Chapter 7 filing; (b) the cessation of business operations by IM; or (c) the failure on the part of IM to comply with its contractual obligations to ATMI to comply with its maintenance and support obligations for a period of more than [*] after it has received written notice of said breach. Any dispute between the parties over whether an event has occurred that would trigger a release of source code to ATMI pursuant to the source code escrow instructions shall be resolved pursuant to Section 12.16. In the event of a release of Informatics Software source code pursuant to this section, said source code shall continue to be the Confidential Information of IM or its successor in interest In the event of a release of source code to ATMI from escrow, ATMI may only use, copy and/or modify the source code consistent with the purposes of this agreement (or have a contractor who has agreed in writing to confidentiality provisions as restrictive as those set forth in this Agreement do so on its behalf).

Source Code Escrow. In the event that (i) IM becomes insolvent or bankrupt, (ii) IM makes an assignment for the benefit of creditors, (iii) IM consents to a trustee or receiver appointment, (iv) a trustee or receiver is appointed for IM or for a substantial part of its property without its consent, (v) IM voluntarily initiates bankruptcy, insolvency, or reorganization proceedings, or is the subject of involuntary bankruptcy, insolvency, or reorganization proceedings, or (vi) IM announces that it has entered into an agreement to be acquired by a then named CompetitorCompetitor (as defined in the Wets Workflow Purchase Agreement), then IM and ATMI Customer will negotiate in good faith to enter into a source code escrow agreement with Iron Mountain Incorporated in a form provided by Iron Mountain Incorporated (or if Iron Mountain Incorporated is no longer engaging in the source code escrow business, a mutually agreed source code escrow company) setting forth source code escrow deposit procedures and source code release procedures relating to Informatics Software. Notwithstanding the foregoing, the escrow instructions shall provide for a release of the source code to ATMI Customer of the Informatics Software only upon the occurrence of (a) the filing of a Chapter 7 bankruptcy petition by IM, or a petition by IM to convert a Chapter 11 filing to a Chapter 7 filing; (b) the cessation of business operations by IM; or (c) the failure on the part of IM to comply with its contractual obligations to ATMI Customer to comply with its maintenance and support obligations for a period of more than [*] ninety (90) days after it has received written written. notice of said breach. Any dispute between the parties over whether an event has occurred that would trigger a release of source code to ATMI Customer pursuant to the source code escrow instructions shall be resolved pursuant to Section 12.16. In the event of a release of Informatics Software source code pursuant to this section, said source code shall continue to be the Confidential Information of IM or its successor in interest interest. In the event of a release of source code to ATMI Customer from escrow, ATMI Customer may only use, copy and/or modify the source code consistent with the purposes of this agreement Agreement (or have a contractor who has agreed in writing to confidentiality provisions as restrictive as those set forth in this Agreement do so on its behalf).

Source Code Escrow. a. Within sixty (60) days after the Effective Date, Marimba shall add OEM as a beneficiary to the existing Escrow Agreement between Marimba and Fort Knox ▇▇▇row Services, Inc. ("Escrow Agreement") for the term of this Agreement. OEM may continue to be a beneficiary of the Escrow Agreement for up to one year thereafter upon receipt by Marimba of a $1000 annual escrow fee. In the event that the escrow fee is not received by the expiration of the term of this Agreement, OEM will cease to be a beneficiary without further notice and without liability of Marimba or Fort Knox ▇▇▇row Services, Inc. ("Fort Knox"). In any event, OEM shall permanently cease to be a beneficiary of the Escrow Agreement one (1) year after termination of this Agreement (or immediately upon termination by Marimba due to material breach by OEM). Pursuant to the Escrow Agreement, Marimba has delivered source code and documentation of the Programs to Fort Knox. ▇▇rimba also agrees to deliver to Fort Knox ▇▇▇rce code and documentation for Updates and any related tools, APIs or other code required by a programmer possessing standard skill in the applicable field to operate such Updates, as soon as practicable after the Updates have been developed by Marimba. b. The Escrow Agreement provides for the release of the deposited materials, relating to the Programs licensed under this Agreement, only in the event that (i) IM becomes insolvent Marimba has sought protection under any bankruptcy, receivership, creditors arrangement, composition or bankruptcomparable proceeding, or if any such proceeding has been instituted against Marimba and not dismissed within 120 days; or (ii) IM makes an assignment for the benefit of creditorsMarimba, voluntarily or involuntarily, ceases to do business, or otherwise terminates its business operations and a successor does not assume Marimba's rights and obligations under this Agreement; or (iii) IM consents Marimba or Fort Knox ▇▇▇eives a written notice from Marimba's trustee in bankruptcy, or an order of a court, directing Fort Knox ▇▇ release the source code and documentation to a trustee or receiver appointment, OEM; (iv) Marimba ceases to offer support for the then-current version of the Programs without making an update or successor version or product available; provided that OEM is then under contract for support and in good standing under this Agreement. Marimba has thirty (30) days to object to the release of such documents. OEM may use the released materials solely for the purpose of maintaining and supporting the Programs for the duration of this Agreement and shall maintain the confidentiality of the released materials and technology with the same standard of care OEM applies to its most confidential information; provided, that in the event of a trustee or receiver is appointed for IM or for a substantial part release prior to completion of its property without its consent, (v) IM voluntarily initiates bankruptcy, insolvency, or reorganization proceedings, or is the subject Initial Feature Enhancements set forth as of involuntary bankruptcy, insolvency, or reorganization proceedings, or (vi) IM announces that it has entered into an agreement to be acquired by a then named Competitorthe Effective Date on Attachment I, then IM and ATMI will negotiate in good faith the materials may be used by OEM to enter into a source code escrow agreement with Iron Mountain Incorporated in a form provided by Iron Mountain Incorporated (or if Iron Mountain Incorporated is no longer engaging in the source code escrow business, a mutually agreed source code escrow company) setting forth source code escrow deposit procedures and source code release procedures relating to Informatics Software. Notwithstanding the foregoing, the escrow instructions shall provide for a release create Derivative Works of the source code to ATMI Programs consisting of the Informatics Software only upon the occurrence of (a) the filing of a Chapter 7 bankruptcy petition by IM, or a petition by IM to convert a Chapter 11 filing to a Chapter 7 filing; (b) the cessation of business operations by IM; or (c) the failure on the part of IM to comply with its contractual obligations to ATMI to comply with its maintenance and support obligations for a period of more than [*] after it has received written notice of said breach. Any dispute between the parties over whether an event has occurred that would trigger a release of source code to ATMI pursuant to the source code escrow instructions shall be resolved pursuant to Section 12.16such features. In the event of a release of Informatics Software source code dispute as to when this section applies, such dispute will be settled by arbitration, pursuant to this section, said source code shall continue to be the Confidential Information terms of IM or its successor in interest In the event of a release of source code to ATMI from escrow, ATMI may only use, copy and/or modify the source code consistent with the purposes of this agreement (or have a contractor who has agreed in writing to confidentiality provisions as restrictive as those set forth in this Agreement do so on its behalf).Escrow Agreement