Common use of Source Materials Escrow Clause in Contracts

Source Materials Escrow. hCentive shall, at Optum’s expense, establish and maintain an escrow account naming Customer and Optum as beneficiaries for all Software Deliverables, the hCentive WebInsure State Software, and all other Third Party Software and each System identified in the Statement of Work as being subject to the escrow account. hCentive, Optum, Customer and a reputable escrow agent selected by Customer to maintain the escrow account (the “Escrow Agent”) shall enter into an escrow agreement using the Escrow Agent’s standard form (with commercially reasonable modifications as agreed to by hCentive, Optum, Customer and the Escrow Agent in good faith). The escrow agreement shall include the following provisions: (a) Then-current Source Materials will be deposited upon each Minor Release and Major Release of the Software Deliverables and the related hCentive WebInsure State Software with which it is commingled and, with respect to any and all Updates, new releases, versions, upgrades, improvements, bug fixes, patches, enhancements or other modifications deployed other than through a Minor Release or a Major Release, at least once per calendar quarter. (b) The Source Materials will be released upon demand by Customer (subject to the procedure set forth in the applicable escrow agreement) in the event of the occurrence of any of the following (“Release Event”): (i) hCentive fails in any material respect to comply with its obligations to provide support and maintenance for the Software Deliverables in accordance with hCentive software support terms, and any such failure is not remedied in accordance with the applicable terms between hCentive and Optum; (ii) hCentive fails to function as a going concern or to operate in the ordinary course, or a receiver or trustee in bankruptcy is appointed for hCentive or its property, or hCentive makes a general assignment for the benefit of its creditors, or hCentive commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, in each case which proceedings are not dismissed within thirty (30) days.; or (iii) hCentive breaches the warranty in either Section 2.1(c) or Section 2.1(n) of the Agreement and is unable to cure for forty-five (45) days after written notification by Optum or Customer. (c) hCentive shall grant Optum and Optum will in turn grant Customer a currently effective, non-exclusive, transferable, sublicensable, royalty-free, fully paid-up right and license to use, reproduce, modify and create derivative works of the Source Materials for purposes consistent in scope and duration to the object code license under which Optum and Customer were operating, which license may be exercised only upon the occurrence of a Release Event. (d) In addition, the following Release Event shall apply with regard to the hCentive Software: (i) The Source Materials for the hCentive Software will be released upon written notice from Optum or Customer to hCentive, which notice sets forth a reasonable and specifically articulated business needs of Customer for such Source Materials, including but not limited to the following circumstances: (A) satisfaction of a Federal or state audit requirement; (B) investigation of a security breach; (C) development of new interfaces; or

Source Materials Escrow. hCentive shall, (a) Contractor shall at Optum’s expense, its own expense establish and maintain an escrow account Escrow Account naming Customer and Optum Client as beneficiaries a beneficiary for all Software Deliverables, the hCentive WebInsure State Escrowed Software, and all other Third Party Software and each System identified in the Statement of Work as being subject to the escrow account. hCentive, Optum, Customer and a reputable escrow agent selected by Customer to maintain the escrow account (the “Escrow Agent”) The parties shall enter into an escrow agreement using the Escrow Agent’s standard form (with commercially reasonable modifications as agreed to by hCentiveContractor, Optumthe Third Party Vendor, Customer Client and the Escrow Agent in good faith); however, Contractor will use commercially reasonable efforts to obtain the Third Party Vendor’s agreement to the terms set forth in Section 13.8(b). The Contractor shall provide a copy of each escrow agreement to Client for review. Notwithstanding the preceding, if a Third Party Vendor utilizes its own form of escrow agreement and will agree to provide Source Materials solely pursuant to such form of escrow agreement including a standard set of Release Events or otherwise does not agree to the terms set forth in Section 13.8(b), Contractor shall include inform Client as soon as reasonably possible. In such event, Client and Contractor will work together to determine whether to proceed with such Third Party Vendor and the Third Party Software offered by such vendor, taking into consideration the importance of the Third Party Software to a System and/or Task Order and whether alternative commercial functionality is available. (b) In accordance with Section 13.8(a) above, Contractor shall use commercially reasonable efforts to obtain agreement from Third Party Vendors offering Escrowed Software on substantially the following provisionsterms: (ai) Then-current Source Materials will be deposited upon each Minor Release and Major Release of the applicable Software Deliverables and the related hCentive WebInsure State Software with which it is commingled and, with respect to any and all Updates, new releases, versions, upgrades, improvements, bug fixes, patches, enhancements or other modifications Updates deployed other than through a Minor Release or a Major Release, at least once per calendar quarter. (bii) The Source Materials will be released upon demand by Customer Client (subject to the procedure set forth in the applicable escrow agreement) in the event of the occurrence of any of the following (“Release Event”): (iA) hCentive Such Third Party Vendor fails in any material respect to comply with its obligations to provide support and maintenance for the Software Deliverables in accordance with hCentive the applicable Third Party Vendor software support terms, and any such failure is not remedied in accordance with the applicable terms between hCentive such Third Party Vendor and Optum;Contractor; or (iiB) hCentive Such Third Party Vendor fails to function as a going concern or to operate in the ordinary course, or a receiver or trustee in bankruptcy is appointed for hCentive such Third Party Vendor or its property, or hCentive such Third Party Vendor makes a general assignment for the benefit of its creditors, or hCentive such party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, in each case which proceedings are not dismissed within thirty (30) days. .; or (iii) hCentive breaches the warranty in either Section 2.1(c) or Section 2.1(n) of the Agreement and is unable to cure for forty-five (45) days after written notification by Optum or Customer. (c) hCentive shall The applicable Third Party Vendor will grant Optum and Optum will in turn grant Customer Client a currently effective, non-exclusive, transferable, sublicensable, royalty-free, fully paid-up right and license to use, reproduce, modify and create derivative works of the Source Materials for purposes consistent in scope and duration to the object code license under which Optum and Customer were Client was operating, which license may be exercised only upon the occurrence of a Release Event. (div) Client shall be entitled to require at its own expense, technical third party verification that the Source Materials in the possession of the escrow agent are sufficient to build, compile, assemble, translate, bind and load source code for the applicable Deliverables and/or Project Works into executable Software, and maintain and support such Deliverables and/or Project Works. (v) If such technical verification demonstrates that the Source Materials are Insufficient: (A) Contractor shall, after receiving Source Materials from the Third Party Vendor, promptly redeposit sufficient Source Materials; (B) Contractor shall pay for both the initial and subsequent verification; and (C) the foregoing remedy shall apply to each instance of an Insufficient deposit. (c) In additionaddition to and without limiting the terms set forth in 13.8(b) above, Contractor will obtain agreement from hCentive to the following Release Event shall apply with regard to the hCentive Softwareterms: (i) The Source Materials for the hCentive Software will be released upon written notice from Optum or Customer Client to hCentiveContractor, which notice sets forth a reasonable and specifically articulated business needs need of Customer Client for such Source Materials, including but not limited to the following circumstances: (A) satisfaction of a Federal or state audit requirement; (B) investigation of a security breach; (C) development of new interfaces; or