ESCROW AGREEMENT

This Agreement is made on Agreement Date between the parties specified in Schedule 1 as Quantum Digital’s Escrow Partner, the Client and Quantum Digital respectively.

Recitals

A.         Quantum Digital’s Escrow Partner has the skills and resources to escrow Escrow Materials.

B.         Quantum Digital proposes to deposit the Escrow Materials with Quantum Digital’s Escrow Partner and Client proposes to gain access to the Escrow Materials on the basis set out in this Agreement.

Operative Part

1.         Definitions

1.1       In this Agreement, unless inconsistent with the context:

(a)        Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b)        Clause means a clause of this Agreement.

(c)        Force Majeure means an act, omission or circumstance over which Quantum Digital’s Escrow Partner could not reasonably have exercised control.

(d)        Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.

(e)        Sub-clause means a sub-clause of this Agreement.

2.         Interpretation

2.1       In this Agreement, unless inconsistent with the context:

(a)        Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b)        Words denoting the singular number shall include the plural number and vice versa.

(c)        Words denoting any gender shall include all other genders.

(d)        A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.

(e)        Money references are references to Australian currency.

(f)         A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.

(g)        Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(h)        Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.

(i)         A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(j)  If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.

(k)        The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and clauses of this Agreement; and thereafter in the order specified (if any) in Schedule 1.

(l)         No remedy, expressly granted to Quantum Digital’s Escrow Partner excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Quantum Digital’s Escrow Partner.

3.         Duration

3.1       This Agreement shall remain in force until Escrow Materials are released or destroyed in accordance with this Agreement or this Agreement is otherwise terminated.

4.         Deposit of Escrow Materials

4.1       Quantum Digital shall deposit the Escrow Materials within the Update Frequency after the Commencement Date with Quantum Digital’s Escrow Partner.

4.2       If any modification is made to the executable version of the Escrow Materials supplied to Client then Quantum Digital shall within the Update Frequency deposit the modified version of the Escrow Materials with Quantum Digital’s Escrow Partner.

5.         Storage

5.1       Quantum Digital’s Escrow Partner shall store the Escrow Materials in accordance with the Storage Method.

6.         Details

6.1       Quantum Digital’s Escrow Partner shall, upon request, provide a list of all the Escrow Materials deposited, stored and released pursuant to this Agreement.

7.         Access to Escrow Materials

7.1       Unless required by law or this Agreement, Quantum Digital’s Escrow Partner shall not permit access to the Escrow Materials by any person not authorised in writing by both Quantum Digital and Client.

7.2       Sub-clause 7.1 does not apply to personnel authorised by Quantum Digital’s Escrow Partner to perform its obligations pursuant to this Agreement.

8.         Loss of Escrow Materials

8.1       If the Escrow Materials are lost, destroyed or damaged whilst in the possession, custody or control of Quantum Digital’s Escrow Partner, Quantum Digital’s Escrow Partner shall:

(a)        promptly notify Quantum Digital and Client; and

(b)        co-operate in the replacement of the lost, damaged or destroyed Escrow Materials.

9.         Verification

9.1       Quantum Digital’s Escrow Partner shall not be required to verify the Escrow Materials deposited pursuant to this Agreement.

9.2       At the request of Client, Quantum Digital’s Escrow Partner may verify the Escrow Materials upon payment of additional fees by Client.

9.3       The costs of the verification process referred to in Sub-clause 9.2 shall be paid in advance by Client.  However, in the event that the Escrow Materials fail the verification process Quantum Digital shall pay such costs to Client.

10.       Release of Escrow Materials to Quantum Digital

10.1     Subject to Clause 12, Quantum Digital’s Escrow Partner shall, at Quantum Digital’s option, return the Escrow Materials to Quantum Digital or destroy the Escrow Materials if:

(a)        Client consents to such release;

(b)        Client is in material breach of this Agreement or the Master Agreement; or

(c)        Client becomes subject to any form of insolvency administration.

10.2     Quantum Digital’s Escrow Partner may at any time provide Quantum Digital with a copy of the Escrow Materials.

11.       Release of Escrow Materials to Client

11.1     Subject to Clause 12, Quantum Digital’s Escrow Partner shall provide a copy of the Escrow Materials to Client if:

(a)        Quantum Digital consents to such release;

(b)        the events set out in the Additional Trigger Events to trigger such release occur;

(c)        the events set out in the Master Agreement to trigger such release occur; or

(d)        Quantum Digital becomes subject to any form of insolvency administration.

11.2     If the Escrow Materials are released to Client in accordance with this Clause then Client shall be entitled to use, modify and copy the Escrow Materials solely in accordance with Client’s rights and obligations under the Master Agreement.

12.       Objection to release of Escrow Materials

 

12.1     A Party seeking release of a copy of the Escrow Materials pursuant to Clause 10.1 or 11.1 shall give 7 days prior notice to other Party of such a notice being proposed to be given to Quantum Digital’s Escrow Partner.

12.2     Quantum Digital’s Escrow Partner is under no obligation to release a copy of the Escrow Materials unless:

(a)        evidence that Sub-clause 12.1 has been satisfied is provided; and

(b)        Escrow Fees have been paid in full including any applicable Release Fee.

12.3     A Party who receives a notice pursuant to Sub-clause 12.1 may object, by notice in writing to Quantum Digital’s Escrow Partner and the other Party on the basis that the facts relied upon by the other Party are inaccurate.

12.4     Upon receipt of such notice, Quantum Digital’s Escrow Partner shall not release a copy of the Escrow Materials until the parties consent to such release or a Court makes a declaration in favour of a Party seeking such release.

12.5     Quantum Digital’s Escrow Partner shall comply with any declaration or direction of the Court.

13.       Escrow Fees and Charges

13.1     Escrow Paying Party shall pay the Escrow Fees to Quantum Digital’s Escrow Partner.

13.2     The Escrow Fees are non-refundable despite termination of this Agreement.

13.3     The Escrow Fees may be increased on 30 days’ notice in writing.  Client or Quantum Digital may by notice in writing terminate this Agreement within that period.

13.4     Unless stated to the contrary, the Escrow Fees are exclusive of all taxes, GST, duties, fees or other government charges which may be imposed on the storage of Escrow Materials, this Agreement or otherwise.  Escrow Paying Party shall pay such taxes, GST, duties, fees or other government charges immediately on demand.

13.5     If any payment is not made within 7 days of the due date, Quantum Digital’s Escrow Partner may, without further notice to Quantum Digital or Client, suspend further services or its remaining obligations to Quantum Digital and Client under this Agreement.

14.       Confidentiality

14.1     All parties shall treat as confidential the terms of this Agreement, Escrow Materials and any other related information, which comes into their possession, control or custody pursuant to this Agreement.  The obligations under this clause survive the termination of this Agreement.

15.       Inquiries by Quantum Digital’s Escrow Partner

15.1     Quantum Digital’s Escrow Partner shall not be bound to inquire about the validity of the grounds for any notice or direction to it.

15.2     If Quantum Digital’s Escrow Partner is in any doubt as to its obligations under this Agreement it shall seek directions from Quantum Digital and Client.  If Quantum Digital and Client cannot agree on directions to be given to Quantum Digital’s Escrow Partner within 7 days of being requested to do so, Quantum Digital’s Escrow Partner shall wait for directions from a Court.

16.       Legal Costs and Indemnity

16.1     Client and Quantum Digital jointly and severally indemnify and shall keep Quantum Digital’s Escrow Partner indemnified for all costs, taxes and expenses on a solicitor and own client basis incurred in connection with this Agreement and any dispute in relation to this Agreement.

17.       Implied Terms

17.1     Except as expressly provided to the contrary in this Agreement any condition or warranty whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement is excluded.

17.2     Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement.  However, the liability of Quantum Digital’s Escrow Partner for any breach of such term shall be limited, at the option of Quantum Digital’s Escrow Partner, to the supplying of the services again or the payment of the cost of having the services supplied again.

18.       Liability of Quantum Digital’s Escrow Partner

18.1     Except as expressly provided to the contrary in this Agreement, Quantum Digital’s Escrow Partner shall not be under any liability to Quantum Digital or Client in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the failure or omission on the part of Quantum Digital’s Escrow Partner to comply with its obligations under this Agreement.

19.       Termination

19.1     This Agreement shall terminate if:

(a)        Escrow Materials are released by Quantum Digital’s Escrow Partner in accordance with this Agreement; or

(b)        Client gives 30 days’ notice that this Agreement is terminated.

19.2     Quantum Digital’s Escrow Partner may terminate this Agreement immediately by notice in writing if any payment due to Quantum Digital’s Escrow Partner pursuant to this Agreement remains unpaid for a period of 30 days.

19.3     Upon termination, amongst other things:

(a)        Quantum Digital’s Escrow Partner shall, unless directed otherwise, destroy the Escrow Materials.  A Party making a direction otherwise shall pay all fees applicable to complying with that direction; and

(b)        Escrow Paying Party shall pay the Release Fee.

20.       Survival

20.1     The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

21.       Force Majeure

21.1     Quantum Digital’s Escrow Partner shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.

22.       Assignment, Novation and Sub-Contracts

22.1     Quantum Digital or Client shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of Quantum Digital’s Escrow Partner.

22.2     Quantum Digital’s Escrow Partner may sub-contract for the performance or part performance of this Agreement.

23.       Waiver

23.1     Any failure by a Party to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by a Party will not be construed as a waiver of that Party’s rights.

23.2     No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.  Such a waiver by a Party shall not prejudice its rights in respect of any subsequent breach of this Agreement by the other Party.

24.       Governing Law

24.1     This Agreement shall be governed by and construed according to the law of Jurisdiction.

24.2     The Parties irrevocably submit to the exclusive jurisdiction of the courts of Jurisdiction and the Commonwealth of Australia and any courts hearing appeals from such courts.  Any proceedings in a Commonwealth court shall be commenced in Jurisdiction.

25.       Notices

25.1     Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 1.

25.2     Notices shall be deemed given in the case of:

(a)        hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b)        posting, 3 days after dispatch; and

(c)        facsimile, upon completion of transmission.

26.       Entire Agreement

26.1     Unless stated expressly to the contrary in this Agreement:

(a)        this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement.  Any prior arrangements, agreements, representations or undertakings are superseded;

(b)        this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties.  No Party may represent that there exists such a relationship between the Parties;

(c)        no Party may bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and

(d)        no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.

Executed as an Agreement  

By Quantum Digital
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:  

)  

) Attach company seal here  

)  

)  

 

 

 

 

 

Director/Secretary sign here  

Director sign here  

 

 

 

Print Name of Director/Secretary here  

Director/Secretary  

 

 

 

Print Name of Director here  

Director  

 

 

 

 

By Client
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:  

)  

) Attach company seal here  

)  

)  

 

 

 

 

 

Director/Secretary sign here  

Director sign here  

 

 

 

Print Name of Director/Secretary here  

Director/Secretary  

 

 

 

Print Name of Director here  

Director  

 

 

 

 

By Quantum Digital's Escrow Partner
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:  

)  

)  

)  

)  

)  

 

 

 

 

 

 

 

 

Director/Secretary  

Director  

 

 

Schedule 1 – General Details  

Agreement Date  

 

Additional Trigger Events  

 

Client  

 

Client ABN  

 

Client Address  

 

Commencement Date  

 

Quantum Digital's Escrow Partner  

Software Escrow & Copyright Agents Pty Ltd ABN 68 007 214 708  

Quantum Digital's Escrow Partner Address  

GPO BOX 2506 SYDNEY NSW 2001 Australia  

Facsimile: + 612 9233 3044  

Escrow Fees  

Setup Fee: $400 plus GST  

Annual Fee: $600 plus GST per annum in advance commencing on execution of this Agreement plus if more than 4 CDs are held then an additional fee of $150 plus GST per CD per annum is payable.  

Release Fee: $600 plus GST upon receipt of a request to release or destroy the Escrow Materials.  

Escrow Materials  

Source Code for [insert software details]  

Escrow Paying Party  

Client  

Jurisdiction  

New South Wales  

Master Agreement  

[insert details of master agreement] and all further renewals or extensions thereof.  

Quantum Digital  

 

Quantum Digital ABN  

 

Quantum Digital Address  

 

Storage Method  

Secure Building; or, subject to payment in advance of $100 plus GST per annum to Quantum Digital's Escrow Partner in addition to Escrow Fees, Bank Vault.  

Update Frequency  

90 days (or such later period as may be specified in the Master Agreement)