HomeMy WebLinkAboutExhibit18Exhibit "I"
Escrow Agreement
Page 35 of 35
ESCROW SERVICE AGREEMENT
1. Introduction.
This Escrow Service Agreement (the "Agreement") is entered into by and between , located at
(0 Depositor - OR - ❑ Beneficiary) and its affiliates and subsidiaries, and by any additional party
signing the Acceptance Form attached as Exhibit D to this Agreement (❑ Depositor - OR - ❑ Beneficiary) and by Iron Mountain
Intellectual Property Management, Inc. ("Iron Mountain") on this day of , 200_ (the "Effective Date"). Beneficiary,
Depositor, and Iron Mountain may be referred to individually as a "Party" or collectively as the "Parties" throughout this Agreement.
The use of the term "Services" in this Agreement shall refer to Iron Mountain Services that facilitate the creation, management, and
enforcement of software and/or other technology escrow accounts as described in Exhibit A attached hereto. A Party shall request
Services under this Agreement (i) by submitting a work request associated for certain Iron Mountain Escrow Services via the online
portal maintained at the Website located at www.ironmountainconnect.com or any other Websites or Web pages owned or controlled by
Iron Mountain that are linked to that Website (collectively the "Iron Mountain Website"), or (ii) by submitting a written work request
attached hereto as Exhibit A (each, individually, a "Work Request"). The Parties desire this Agreement to be supplementary to the
License Agreement and pursuant to Chapter 11 United States [Bankruptcy) Code, Section 365(n).
2. Depositor Responsibilities.
(a) Depositor shall provide all information designated as required to fulfill a Work Request ("Required
Information") and may also provide other information ("Optional Information") at their discretion to assist Iron
Mountain in the fulfillment of requested Services.
(b) Depositor must authorize and designate one or more persons whose action(s) will legally bind the Depositor
("Authorized Persons" who shall be identified in the Authorized Persons/Notices Table of this Agreement) and
who may manage the Iron Mountain escrow account through the Iron Mountain Website or via written Work
Request. Authorized Person(s) will maintain the accuracy of their name and contact information provided to Iron
Mountain during the Term of this Agreement (the "Depositor Information").
(c) Depositor shall make an initial deposit that is complete and functional of all proprietary technology and other
materials covered under this Agreement ("Deposit Material") to Iron Mountain within ninety (90) days of the
Effective Date. Depositor may also update Deposit Material from time to time during the Term of this Agreement
provided a minimum of one (1) complete and functional copy of Deposit Material is deposited with Iron Mountain
at all times. At the time of each deposit or update, Depositor will provide an accurate and complete description of
all Deposit Material sent to Iron Mountain via the Iron Mountain Website or using the form attached hereto as
Exhibit B.
(d) Depositor consents to Iron Mountain's performance of any level(s) of Verification Services described in Exhibit A
attached hereto and further consents to Iron Mountain's use of an OPEN to provide such Services as needed.
(i) Depositor lawfully possesses all Deposit Material provided to Iron Mountain under this Agreement free of any liens or
encumbrances as of the date of their deposit. Any Deposit Material liens or encumbrances made after their deposit will not
prohibit, limit, or alter the rights and obligations of Iron Mountain under this Agreement;
(ii) All Deposit Material is readable and useable in its then current form; if any portion of such Deposit Material is encrypted the
necessary decryption tools and keys to read such material are deposited contemporaneously;
(iii) All Deposit Material is provided with rights to Iron Mountain whom will verify such proprietary technology and
materials upon receipt of a Work Request for such Services; and
(iv) Depositor warrants that Iron Mountain's use of the Deposit Material or other materials supplied by Depositor to perform
the Verification Services described in Exhibit A is lawful and does not violate the rights of any third parties. Depositor
agrees to use commercially reasonable efforts to provide Iron Mountain with any necessary use rights or permissions to use
materials necessary to perform Verification of the Deposit Material. Depositor agrees to reasonably cooperate with Iron
Mountain by providing its facilities, computer software systems, and technical personnel for Verification Services whenever
reasonably necessary.
3. Beneficiary Responsibilities.
(a) Beneficiary shall provide all information designated as required to fulfill a Work Request ("Required Information") and may also
provide other information ("Optional Information") at their discretion to assist Iron Mountain in the fulfillment of requested
Services.
(b) Beneficiary must authorize and designate one or more persons whose action(s) will legally bind the Beneficiary ("Authorized
Persons" who shall be identified in the Authorized Persons/Notices Table of this Agreement) who shall manage the Iron Mountain
escrow account through the Iron Mountain Website or via written Work Request. Authorized Person(s) will maintain the accuracy
of their name and contact information provided to Iron Mountain during the Term of this Agreement (the "Beneficiary
Information").
(c) Beneficiary is responsible for verifying the completeness and/or functionality of all Deposit Material. Beneficiary may submit a
Verification Work Request to Iron Mountain for one of more of the Services defined in Exhibit A attached hereto and further
consents to Iron Mountain's use of OPEN if needed to provide such Services.
(d) Beneficiary warrants that Iron Mountain's use of any materials supplied by Beneficiary to perform the Services the Verification
Services described in Exhibit A is lawful and does not violate the rights of any third parties.
4. Iron Mountain Responsibilities.
(a) Iron Mountain agrees to use commercially reasonable efforts to provide the Services requested by authorized Depositor and
Beneficiary representatives in a Work Request. Iron Mountain may reject a Work Request (in whole or in part) that does not contain
all Required Information at any time upon notification to the Party originating the Work Request.
(b) Iron Mountain will conduct a deposit inspection upon receipt of any Deposit Material and associated Exhibit B. If Iron Mountain
determines that the Deposit Material does not match the description provided by Depositor represented in Exhibit B attached hereto,
Iron Mountain will provide Depositor with notice by electronic mail, telephone, or regular mail of such discrepancies. Iron
Mountain will work directly with the Depositor to resolve any such discrepancies prior to accepting Deposit Material. Iron Mountain
will provide Depositor with notice from time to time during the first ninety (90) days from the Effective date as a reminder that
submission of initial Deposit Material is required. Iron Mountain will also provide notice to Depositor every ninety (90) days thereafter
for any updates.
(c) Iron Mountain will provide notice by electronic mail, telephone, or regular mail to the Beneficiary of all Deposit Material that is
accepted and deposited into the escrow account under this Agreement.
(d) Iron Mountain will work with a Party who submits any Verification Work Request for Deposit Material covered under this
Agreement to develop a custom Statement of Work ("SOW"). Iron Mountain and the requesting Party will mutually agree in
writing to an SOW on the following terms and conditions that include but are not limited to: description of Deposit Material to be
tested; description of Verification testing; requesting Party responsibilities; Iron Mountain responsibilities; Service Fees; invoice
payment instructions; designation of the Paying Party; designation of authorized SOW representatives for both the requesting Party
and Iron Mountain with name and contact information; and description of any final deliverables prior to the start of any fulfillment
activity. After the start of fulfillment activity, each SOW may only be amended or modified in writing with the mutual agreement of
both Parties, in accordance with the change control procedures set forth therein.
(e) Iron Mountain will hold and protect all Deposit Material in physical and/or electronic vaults that are either owned or under the direct
control of Iron Mountain.
(f) Iron Mountain will permit the replacement and/or removal of previously submitted Deposit Material upon Work Request that may
be subject to the written joint instructions of the Depositor and Beneficiary.
(g) Iron Mountain will strictly follow the procedures set forth in Exhibit C attached hereto to process any Beneficiary Work Request to
release Deposit Material.
(h) Iron Mountain retains the right to terminate this Agreement, return all Deposit Material submitted by Depositor and retain all
accrued Services Fees paid hereunder if Depositor is not able — within a reasonable time — to provide an Exhibit B that matches
Deposit Material received by Iron Mountain.
5. Payment.
The Paying Party shall pay to Iron Mountain all fees as set forth in the Work Request form attached hereto as Exhibit A ("Service
Fees"). Except as set forth below, all Service Fees are due to Iron Mountain within thirty (30) calendar days from the date of invoice in
U.S. currency and are non-refundable. If Iron Mountain rejects all or part of a Work Request, Iron Mountain shall refund any collected
Service Fees associated with such rejected Work Request within sixty (60) calendar days of notice of the rejection. Iron Mountain may
update Service Fees with a ninety (90) calendar day written notice to the Paying Party during the Term of this Agreement. The Paying
Party is liable for any taxes related to Services purchased under this Agreement or shall present to Iron Mountain an exemption
certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible.
Any Service Fees not collected by Iron Mountain when due shall bear interest until paid at a rate of 1.25% per month (15% per annum)
or the maximum rate permitted by law, whichever is less. Delinquent accounts may be referred to a collection agency at the sole
discretion of Iron Mountain. Notwithstanding, the non-performance of any obligations of Depositor to deliver Deposit Material under
the License Agreement or this Agreement, Iron Mountain is entitled to be paid all Service fees that accrue during the Tenn of this
Agreement. All Service Fees will not be subject to offset except as specifically provided hereunder.
6. Term and Termination.
(a) The "Term" of this Agreement is for a period of one (1) year from the Effective Date and will continue in full force and
effect until one of the following events occur: (i) Depositor and Beneficiary provide joint written instructions of their intent
to cancel this Agreement within sixty (60) days to Iron Mountain; (ii) Beneficiary provides a sixty (60) day written notice
regarding cancellation of this Agreement to both Depositor and Iron Mountain; or (iii) Iron Mountain provides a sixty (60)
day written notice to the Depositor and Beneficiary authorized persons that they can no longer perform the Services under
this Agreement.
(b) Depositor and Beneficiary may provide Iron Mountain with joint written instructions authorizing Iron Mountain to forward
the Deposit Material to another escrow company and/or agent or other designated recipient. If Iron Mountain does not
receive said joint written instructions within sixty-(60) calendar days of the date of Iron Mountain's written termination
notice, then Iron Mountain shall destroy or return the Deposit Material.
(c) In the event of the nonpayment of Service Fees owed to Iron Mountain, Iron Mountain shall provide all Parties to this Agreement
with notice by electronic mail and/or regular mail. Any Party to this Agreement shall have the right to make the payment to Iron
Mountain to cure the default. If the past due payment is not received in full by Iron Mountain within thirty (30) calendar days of the
date of such notice, then Iron Mountain shall have the right to terminate this Agreement at any time thereafter by sending notice by
electronic mail and/or regular mail of termination to all Parties. Iron Mountain shall have no obligation to take any action under this
Agreement so long as any Iron Mountain invoice issued for Services rendered under this Agreement remains uncollected.
7. General Indemnity.
Iron Mountain and Depositor shall defend, indemnify and hold harmless the other, their corporate affiliates and their respective officers,
directors, employees, and agents and their respective successors and assigns from and against any and all claims, losses, liabilities,
damages, and expenses (including, without limitation, reasonable attorneys' fees), arising under this Agreement from the negligent or
intentional acts or omissions of the indemnifying Party or its OPENs, or the officers, directors, employees, agents, successors and assigns
of any of them.
Iron Mountain and Depositor shall defend, indemnify and hold harmless the Beneficiary, its officers, directors, employees, and agents
and its successors and assigns from and against any and all claims, losses, liabilities, damages, and expenses (including, without
limitation, reasonable attorneys' fees), arising under this Agreement from the negligent or intentional acts or omissions of the
indemnifying Party or its OPENs, or the officers, directors, employees, agents, successors and assigns of any of them.
8. Warranties.
(a) Iron Mountain. ANY AND ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE
MANNER. EXCEPT AS SPECIFIED IN THIS SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS,
AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AGAINST
INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY
EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. AN AGGRIEVED PARTY MUST NOTIFY IRON
MOUNTAIN PROMPTLY OF ANY CLAIMED BREACH OF ANY WARRANTIES AND SUCH PARTY'S SOLE AND
EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE RETURN OF THE PORTION OF THE FEES PAID TO
IRON MOUNTAIN BY PAYING PARTY FOR SUCH NON -CONFORMING SERVICES. THIS DISCLAIMER AND
EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH ABOVE FAILS
OF ITS ESSENTIAL PURPOSE. THE WARRANTY PROVIDED IS SUBJECT TO THE LIMITATION OF LIABILITY SET
FORTH IN SECTION 11 HEREOF.
(b) Depositor. Depositor warrants that all Depositor Information provided hereunder is accurate and reliable and undertakes to promptly
correct and update such Depositor Information during the Term of this Agreement.
(c) Beneficiary. Beneficiary warrants that all Beneficiary Information provided hereunder is accurate and reliable and undertakes to
promptly correct and update such Beneficiary Information during the Term of this Agreement.
9. Insurance.
Iron Mountain shall, at its sole cost and expense, throughout the term of this Agreement, procure and maintain in full force and effect, the
following insurance coverage, with an insurance carrier that is rated B+ or better by A.M. Best.
TYPE OF INSURANCE
COVERAGE AMOUNT
TYPE OF INSURANCE
COVERAGE AMOUNT
General Liability
$2,000,000 General Aggregate
Crime Insurance
$2,000,000 Each Occurrence
General Liability
$1,000,000 Each Occurrence
Umbrella Coverage
$5,000,000 General Aggregate
Professional Liability
$1,000,000 Each Occurrence
All certificates of insurance shall name the Parties as additional beneficiaries with respect to General Liability coverage. All certificates
of insurance shall require that the Parties be provided with advance written notice of cancellation of the stated coverage, and Iron
Mountain shall request that its insurer use its best efforts to provide at least thirty (30) days' advance written notification of such
cancellation.
10. Confidential Information.
Iron Mountain shall have the obligation to reasonably protect the confidentiality of the Deposit Material. Except as provided in this
Agreement Iron Mountain shall not disclose, transfer, make available or use the Deposit Material. Iron Mountain shall not disclose the
terms of this Agreement to any third Party. If Iron Mountain receives a subpoena or any other order from a court or other judicial
tribunal pertaining to the disclosure or release of the Deposit Material, Iron Mountain will immediately notify the Parties to this
Agreement unless prohibited by law. It shall be the responsibility of Depositor and/or Beneficiary to challenge any such order; provided,
however, that Iron Mountain does not waive its rights to present its position with respect to any such order. Iron Mountain will not be
required to disobey any order from a court or other judicial tribunal, including, but not limited to, notices delivered pursuant to Section
13(g) below.
Notwithstanding, Iron Mountain understands that the public shall have access, at all reasonable times, to all documents and information
pertaining to Beneficiary contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the
Beneficiary and the public to all documents subject to disclosure under applicable law. Iron Mountain's failure or refusal to comply with
the provisions of this section shall result in the immediate cancellation of this Agreement by the Beneficiary.
11. Limitation of Liability. (THIS SECTION MAY REQUIRE ADDITIONAL REVISIONS AS MUTUALLY AGREED UPON BY
BOTH PARTIES AND FUTURE CITY COMMISSION APPROVAL).
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY, IF ANY, WHETHER ARISING IN CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, OF ANY PARTY TO THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT EQUAL TO ONE YEAR OF FEES PAID OR OWED TO IRON MOUNTAIN UNDER THIS AGREEMENT. IF CLAIM
OR LOSS IS MADE IN RELATION TO A SPECIFIC DEPOSIT OR DEPOSITS, SUCH LIABILITY SHALL BE LIMITED TO THE
FEES RELATED SPECIFICALLY TO SUCH DEPOSITS. THIS LIMIT SHALL NOT APPLY TO ANY PARTY FOR: (I) ANY
CLAIMS OF INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY RIGHT; (II)
LIABILITY FOR DEATH OR BODILY INJURY; (III) DAMAGE TO TANGIBLE PROPERTY (EXCLUDING THE DEPOSIT
ITEMS); (IV) THEFT; OR (V) PROVEN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
12. Consequential Damages Waiver.
IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANOTHER PARTY FOR ANY INCIDENTAL,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR INFORMATION, ANY COSTS
OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT DAMAGES, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EVEN IF THE POSSIBILITY THEREOF MAY
BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES.
13. General.
(a) Incorporation of Work Requests. All Depositor and/or Beneficiary Work Requests are incorporated into this Agreement.
(b) Purchase Orders. The terms and conditions of this Agreement prevail regardless of any conflicting or additional terms on
any Purchase Order or other correspondence. Any contingencies or additional terms contained on any Purchase Order are
not binding upon Iron Mountain. All Purchase Orders are subject to approval and acceptance by Iron Mountain.
(c) Right to Make Copies. Iron Mountain shall have the right to make copies of all Deposit Material as reasonably necessary to
perform this Agreement. Iron Mountain shall copy all copyright, nondisclosure, and other proprietary notices and titles
contained on Deposit Material onto any copies made by Iron Mountain. Any copying expenses incurred by Iron Mountain
as a result of a Work Request to copy will be borne by the Party requesting the copies. Iron Mountain may request
Depositor's reasonable cooperation in promptly copying Deposit Material in order for Iron Mountain to perform this
Agreement.
(d) Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under
the laws of the State of Florida, United States of America, as if performed wholly within the state and without giving effect
to the principles of conflicts of laws.
(e) Right to Rely on Instructions. Iron Mountain may act in reliance upon any instruction, instrument, or signature reasonably
believed by Iron Mountain to be genuine. Iron Mountain may assume that any employee of a Party to this Agreement who
gives any written notice, request, or instruction has the authority to do so. Iron Mountain will not be required to inquire
into the truth or evaluate the merit of any statement or representation contained in any notice or document. Iron Mountain
shall not be responsible for failure to act as a result of causes beyond the reasonable control of Iron Mountain.
(f) Force Majeure. Except for the obligation to pay monies due and owing, no Party shall be liable for any delay or failure in
performance due to events outside the defaulting Party's reasonable control, including without limitation acts of God,
earthquake, labor disputes, shortages of supplies, riots, war, acts of terrorism, fire, epidemics, or delays of common carriers
or other circumstances beyond its reasonable control. The obligations and rights of the excused Party shall be extended on
a day-to-day basis for the time period equal to the period of the excusable delay.
Notices. All notices regarding Exhibit C shall be sent by commercial express mail. All other correspondence, including
invoices, payments, and other documents and communications, shall be sent by (i) electronic mail; (ii) via regular mail to
the Parties at the addresses specified in the Authorized Persons/Notices Table which shall include the title(s) of the
individual(s) authorized to receive notices; or (iii) via the online portal maintained at the Iron Mountain Website. It shall be
the responsibility of the Parties to notify each other as provided in this Section in the event of a change of physical or e-
mail addresses. The Parties shall have the right to rely on the last known address of the other Parties. Any correctly
addressed notice or last known address of the other Parties that is relied on herein that is refused, unclaimed, or
undeliverable because of an act or omission of the Party to be notified as provided herein shall be deemed effective as of
the first date that said notice was refused, unclaimed, or deemed undeliverable by electronic mail, the postal authorities by
mail, through messenger or commercial express delivery services.
(g)
No Waiver. No waiver of rights under this Agreement by any Party shall constitute a subsequent waiver of this or any
other right under this Agreement.
Assignment. No assignment of this Agreement by Depositor and/or Beneficiary or any rights or obligations of Depositor
and/or Beneficiary under this Agreement is permitted without the written consent of Iron Mountain, which shall not be
unreasonably withheld or delayed.
(j) Severability. In the event any of the terms of this Agreement become or are declared to be illegal or otherwise
unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from
this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the
foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for
either Party, as determined by such Party in its sole discretion, then the affected Party may terminate this Agreement by
notice to the others.
(k) Independent OPEN Relationship. Depositor and Beneficiary understand, acknowledge, and agree that Iron Mountain's
relationship with Depositor and Beneficiary will be that of an independent OPEN and that nothing in this Agreement is
intended to or should be construed to create a partnership, joint venture, or employment relationship.
Attorneys' Fees. In any suit or proceeding between the Parties relating to this Agreement, the prevailing Party will have the
right to recover from the other(s) it's costs and reasonable fees and expenses of attorneys, accountants, and other
professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately
from and in addition to any other amount included in such judgment. This provision is intended to be severable from the
other provisions of this Agreement, and shall survive and not be merged into any such judgment.
No Agency. No Party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever
on behalf of the other Parties or bind the other Parties in any respect whatsoever.
Disputes. Any dispute, difference or question relating to or arising among any of the Parties concerning the construction,
meaning, effect or implementation of this Agreement or any Party hereof will be submitted to, and settled by arbitration by
a single arbitrator chosen by the Florida Regional Office of the American Arbitration Association in accordance with the
Commercial Rules of the American Arbitration Association. The arbitrator shall apply Florida law. Unless otherwise
agreed by the Parties, arbitration will take place in Miami, Florida, U.S.A. Any court having jurisdiction over the matter
may enter judgment on the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by
regular mail or by commercial express mail, to the attorney for the Party or, if unrepresented, to the Party at the last known
business address. If however, Depositor and/or Beneficiary refuse to submit to arbitration, the matter shall not be submitted
to arbitration and Iron Mountain may submit the matter to any court of competent jurisdiction for an interpleader or similar
action. Unless adjudged otherwise, any costs of arbitration incurred by Iron Mountain, including reasonable attorney's fees
and costs, shall be divided equally and paid by Depositor and Beneficiary.
(o) Regulations. All Parties are responsible for and warrant - to the extent of their individual actions or omissions - compliance
with all applicable laws, rules and regulations, including but not limited to: customs laws; import; export and re-export
laws; and government regulations of any country from or to which the Deposit Material may be delivered in accordance
with the provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all
of which together shall constitute one instrument.
Survival. Sections 6 (Term and Termination), 7 (General Indemnity), 8 (Warranties), 10 (Confidential Information), 11
(Limitation of Liability), 12 (Consequential Damages Waiver), and 13 (General) of this Agreement shall survive
termination of this Agreement or any Exhibit attached hereto.
NOTE: SIGNATURE BLOCKS, AUTHORIZED PERSON NOTICES TABLE, AND BILLING CONTACT INFORMATION TABLE FOLLOW
ON THE NEXT PAGE
(h)
(i)
(1)
(m)
(n)
(p)
(q)
The Parties agree that this Agreement is the complete agreement between the Parties hereto concerning the subject matter of this
Agreement and replaces any prior or contemporaneous oral or written communications between the Parties. There are no conditions,
understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. Each of the Parties
herein represents and warrants that the execution, delivery, and performance of this Agreement has been duly authorized and signed by a
person who meets statutory or other binding approval to sign on behalf of its business organization as named in this Agreement. This
Agreement may only be modified by mutual written agreement of the Parties.
CHOOSE ONE: ❑ DEPOSITOR or ❑ BENEFICIARY IRON MOUNTAIN INTELLECTUAL PROPERTY
MANAGEMENT, INC.
SIGNATURE:
PRINT NAME:
TITLE:
DATE:
EMAIL ADDRESS
AUTHORIZED PERSON/NOTICES TABLE
PRINT NAME:
TITLE:
DATE:
EMAIL ADDRESS:
ipmcontracts(iiironmountain.com
Please provide the name and contact information of the Authorized Person under this Agreement. All Notices will be sent to this
individual at the address set forth below.
PRINT NAME:
TITLE:
EMAIL ADDRESS
STREET ADDRESS I
PROVINCE/CITY/STATE
POSTAL/ZIP CODE
PHONE NUMBER
FAX NUMBER
BILLING CONTACT INFORMATION TABLE
Please provide the name and contact information of the Billing Contact under this Agreement. All Invoices will be sent to this
individual at the address set forth below.
PRINT NAME:
TITLE:
EMAIL ADDRESS
STREET ADDRESS 1
PROVINCE/CITY/STATE
POSTAL/ZIP CODE
PHONE NUMBER
FAX NUMBER
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
All notices should be sent to ipmcontracts(thironmountain.com OR Iron Mountain, Attn: Contract Administration, 2100 Norcross
Parkway, Suite 150, Norcross, Georgia, 30071, USA.
EXHIBIT A
Escrow Service Work Request
SERVICE
Check box (es) to
order service
SERVICE DESCRIPTION
ONE-TIME,
FEES
ANNUL
FEES
• Add and Manage
Iron Mountain will OPEN a new escrow deposit account that includes a minimum of one (1)
Depositor and one (1) complete set of Deposit Material. All Deposit Material will be securely stored
in controlled vaults that are owned and/or operated by Iron Mountain. Account services include
unlimited deposits, electronic vaulting, access to Iron Mountain ConnectTM Escrow Management
Center for secure online account management and submission of electronic Work Requests, and
secure destruction of deposit materials upon account closure.
Iron Mountain will assign a primary and secondary Client Manager for each escrow account. These Managers will
provide client training from time to time to facilitate secure Internet access to escrow account(s). Assigned
Managers will also ensure timely fulfillment of client Work Requests (e.g., deposit updates, new beneficiary
enrollment) and communication of status.
$1 050
$950
Escrow Account
• Add Premium
Includes: automated notification of deposit activity as well as deposit update notices; deletion of
one or more previous unique deposits if there are multiple deposits within an existing escrow
account (one complete unique deposit must be maintained at all times). Iron Mountain will identify
a specific deposit by the previously submitted Exhibit B information and either securely destroy or
return the Deposit Material via commercial express mail carrier as instructed. Iron Mountain may
require Joint Instructions from the Depositor and Beneficiary to fulfill such a Work Request.
N/A
$350
Service Package
• Add Beneficiary
Iron Mountain will fulfill a Work Request to add a new Beneficiary or Depositor to an escrow
account, where possible, and provide notice as appropriate to all relevant Parties.
N/A
$650
or Depositor
• Add Initial
Iron Mountain will fulfill a Work Request to perform initial Verification Services, which includes a final report sent
to Client, on Deposit Material to ensure consistency between Depositor's representations (i.e., Exhibit B and
Supplementary Questionnaire) and stored Deposit Material. For a more detailed description see Verification
Services Options below.
N/A
$800
Verification of
Deposit Material
❑ Add Custom
Verification of
Deposit Material
Iron Mountain will fulfill a Work Request to perform one or more levels of custom Verification Services, which
includes a final report sent to Client, on Deposit Material. Client and Iron Mountain will agree on a custom
Statement of Work ("SOW") prior to the start of fulfillment. For a more detailed description see Verification
Services Options below.
Custom
Quote
Based on
SOW
CUstor
Quote
Based
SOW
• Add Dual
Iron Mountain will fulfill a Work Request to store deposit materials in one additional location as
defined within the Service Agreement. Duplicate storage request may be in the form of either
physical media or electronic storage.
N/A
$500
Vaulting
■ Release Deposit
Iron Mountain will process a Work Request to release Deposit Material by following the specific
procedures defined in Exhibit C "Release of Deposit Materials" the Escrow Service Agreement.
$500
N/A
Material
• Add Custom
Iron Mountain will provide its Escrow ExpertTM consulting Services (e.g., licensing escrow strategy
development, dual/remote vaulting, account consolidation) based on a custom SOW mutually
agreed to by all Parties.
$150/hour
N/A
Services
■ Delete Account
Iron Mountain will fulfill a Work Request to terminate an existing escrow account by providing
notice to all Parties to the Agreement, removing Deposit Material from the vault and then either
securely destroying or returning the Deposit Material via commercial express mail carrier as
instructed. All accrued Services Fees must be collected by Iron Mountain prior to completing
fulfillment to terminate an existing escrow account.
No Charge
No Ch:
Upon Escrow Service Agreement execution, please provide your initials below in the appropriate location to indicate your
acceptance of this Escrow Services Work Request inclusive of agreed Services pricing and indication of which Party is
financially responsible for payment of specific Services.
❑ DEPOSITOR or ❑ BENEFICIARY INITIALS
Note: Clients may submit Work Requests electronically through their escrow account online OR may complete this form along with
any other supporting exhibits required and email and/or fax this Work Request to their assigned Client Manager at Iron Mountain
for fulfillment.
VERIFICATION SERVICES OPTIONS
1. Initial Verification - Consistency.
1.1. Iron Mountain shall perform an initial verification ("Initial Verification") of the Deposit Material upon receipt of the first deposit and
for each update. To help perform this evaluation, Iron Mountain will examine the Exhibit B, and request that the Depositor complete
an Escrow Deposit Questionnaire. Iron Mountain will then analyze the Escrow Deposit Questionnaire and Exhibit B, prepare and
deliver a report to Depositor and Beneficiary containing its finding(s) and opinion(s) as to the Deposit consistency based on the
information supplied. Iron Mountain's report will include information regarding:
1.1.1. The hardware and software configuration(s) needed to read the Deposit Material media associated with the Exhibit B;
1.1.2. The software needed to interpret the data read from the media (i.e. Zip, tar, cvs type files); and
1.1.3. The hardware and software configurations needed to compile the software product defined by the Exhibit B.
1.2. Iron Mountain's Systems Analysts will also be available to discuss the Initial Verification's technical consistency evaluation and
other deposit Verification issues. Iron Mountain's higher levels of Verification address issues of readability, inventory, ability to be
compiled or other testing as requested by a Party.
2. Level One (1) - Inventory.
2.1. This series of Verification tests provides insight into whether the necessary information required to recreate the Depositor's
development environment has been properly stored in escrow. These tests detect errors that often inhibit effective use of the escrow
deposit.
2.2. Steps include: Analyzing deposit media readability, virus scanning, developing file classification tables, identifying the
presence/absence of build instructions, and identifying materials required to recreate the Depositor's software development
environment.
2.3. Deliverables: At completion of testing, Iron Mountain will distribute a report to Beneficiary detailing Iron Mountain's
investigation. This report will include build instructions, file classification tables and listings. In addition, the report will list
required software development materials, including, without limitation, required source code languages and compilers, third -Party
software, libraries, operating systems, and hardware, as well as Iron Mountain's analysis of the deposit. When identifying materials
required to re-create Depositor's software development environment, Iron Mountain will rely on information provided in
Depositor's completed questionnaire (obtained via a Iron Mountain Verification representative) and/or information gathered during
Iron Mountain's testing experience.
3. Level Two (2) — Build.
3.1. This series of tests includes a standard effort to compile the Deposit Material and build executable code.
3.2. Steps include: Recreating the Depositor's software development environment, compiling source files and modules, linking libraries
and recreating executable code.
3.3. Deliverables: Iron Mountain will provide a report detailing the steps necessary to recreate the software/hardware development
environment, problems encountered with testing, and Iron Mountain's analysis of the deposit.
4. Level Three (3) - Validation.
4.1. Level III Verification consists of testing the functionality of the compiled Deposit Material (in a production setting or similar
environment) and can be accomplished through one of the following three options:
4.1.1. Option A — With the Depositor's approval, executables created by Iron Mountain during Level II testing are provided to the
Beneficiary for functionality testing.
4.1.2. Option B — The Beneficiary provides Iron Mountain with a copy of its licensed executables. Iron Mountain compares the
executables created during Level II testing with the licensed executables and provides a comparison report to all Parties.
4.1.3. Option C — Iron Mountain recreates the runtime environment for the licensed technology and installs the executables
created during the Level II testing into that environment. (The environment is generally "scaled down" from the actual live
environment.) Iron Mountain then runs test scripts supplied by the Beneficiary and provides a report of the test results to all
Parties. This may require Depositor approval.
4.1.4. Services may be provided by Iron Mountain or individuals or organizations employed by or under contract with Iron
Mountain, at the discretion of Iron Mountain.
EXHIBIT B
DEPOSIT MATERIAL DESCRIPTION
COMPANY NAME:
DEPOSIT NAME
account history reports)
AND DEPOSIT VERSION (Deposit Name will appear in
DEPOSIT MEDIA (PLEASE LABEL ALL MEDIA WITH THE DEPOSIT NAME PROVIDED ABOVE)
MEDIA TYPE
QUANTITY
MEDIA TYPE
QUANTITY
❑ Internet File Transfer
N/A
❑ 3.5" Floppy Disk
❑ CD-ROM / DVD
❑ Documentation
❑ DLT Tape
❑ Hard Drive / CPU
❑ DAT Tape
❑ Circuit Board
❑ Other (describe here):
DEPOSIT ENCRYPTION (Please check either "Yes" or "No" below and complete as appropriate)
Is the media or are any of the files encrypted? Yes or ❑ No
If yes, please include any passwords and decryption tools description below. Please also deposit all necessary
encryption software with this deposit.
Encryption tool name
Hardware required
Software required
Other required information
Version
DEPOSIT CERTIFICATION (Please check the box below to Certify and Provide your Contact Information)
• I certify for Depositor that the above described
Deposit Material has been transmitted electronically or
sent via commercial express mail carrier to Iron Mountain
at the address below.
• Iron Mountain has inspected and accepted the above
described Deposit Material either electronically or
physically. Iron Mountain will notify Depositor of any
discrepancies.
NAME:
NAME:
DATE:
DATE:
EMAIL ADDRESS:
TELEPHONE NUMBER:
FAX NUMBER:
Note: If Depositor is physically sending Deposit Material to Iron Mountain, please label all media
and mail all Deposit Material with the appropriate Exhibit B via commercial express carrier to the
following address:
Iron Mountain Intellectual Property Management, Inc.
Attn: Vault Administration
2100 Norcross Parkway, Suite 150. Norcross, GA 30071. Telephone: (770) 239-9200. Facsimile: (770)
239-9201
EXHIBIT C
Release Of Deposit material
Iron Mountain will use the following procedures to process any Beneficiary Work Request to
release Deposit Material.
1. Release Conditions. Depositor and Beneficiary agree that Iron Mountain will provide notice
via electronic mail and/or regular mail to the Depositor if a Beneficiary under this Agreement
submits a Deposit Material release Work Request based on one or more of the following
conditions defined as "Release Conditions":
(i) Breach of the License Agreement by the Depositor for the Deposit Material covered
under this Agreement; or
(ii) Failure of the Depositor to function as a going concern or operate in the in the
ordinary course; or
(iii) Depositor is subject to voluntary or involuntary bankruptcy.
2. Release Work Request. A Beneficiary may submit a Work Request to Iron Mountain to
release the Deposit Material covered under this Agreement. Iron Mountain will send a written
notice of this Beneficiary Work Request within five (5) business days to the authorized
Depositor representative(s).
3. Contrary Instructions. From the date Iron Mountain mails written notice of the Beneficiary
Work Request to release Deposit Material covered under this Agreement, Depositor
representative(s) shall have ten (10) business days to deliver to Iron Mountain contrary
instructions ("Contrary Instructions"). Contrary Instructions shall mean the written
representation by Depositor that a Release Condition has not occurred or has been cured.
Contrary Instructions shall be on company letterhead and signed by an authorized Depositor
representative. Upon receipt of Contrary Instructions, Iron Mountain shall send a copy to an
authorized Beneficiary representative by commercial express mail. Additionally, Iron
Mountain shall notify both Depositor representative(s) and Beneficiary representative(s) that
there is a dispute to be resolved pursuant to the Disputes provisions of this Agreement. Iron
Mountain will continue to store Deposit Material without release pending (i) joint instructions
from Depositor and Beneficiary that accept release of Deposit Material; or (ii) dispute
resolution pursuant to the Disputes provisions of this Agreement; or (iii) receipt of an order
from a court of competent jurisdiction.
4. Release of Deposit Material. If Iron Mountain does not receive Contrary Instructions from an
authorized Depositor representative, Iron Mountain is authorized to release Deposit Material
to the Beneficiary or, if more than one Beneficiary is registered to the deposit, to release a
copy of Deposit Material to the Beneficiary. Iron Mountain is entitled to receive any
uncollected Service fees due Iron Mountain from the Beneficiary before fulfilling the Work
Request to release Deposit Material covered under this Agreement. This Agreement will
terminate upon the release of Deposit Material held by Iron Mountain.
5. Right to Use Following Release. Beneficiary has the right under this Agreement to use the
Deposit Material for the sole purpose of continuing the benefits afforded to Beneficiary by the
License Agreement. Notwithstanding, the Beneficiary shall not have access to the Deposit
Material unless there is a release of the Deposit Material in accordance with this Agreement.
Beneficiary shall be obligated to maintain the confidentiality of the released Deposit Material.
EXHIBIT D
Enrollment Form
Depositor, Beneficiary and Iron Mountain Intellectual Property Management, Inc. ("Iron Mountain"),
hereby acknowledge that is the ❑ Depositor or ❑ Beneficiary]
referred to in the Escrow Agreement effective , 20 with Iron Mountain as the escrow
agent and is the ❑ Depositor or ❑ Beneficiary enrolling under this
Agreement. ❑ Depositor or ❑ Beneficiary hereby agrees to be bound by all provisions of such Agreement.
Deposit Account Number
AUTHORIZED PERSON/NOTICES TABLE
Please provide the name and contact information of the Authorized Person under this Agreement. All
Notices will be sent to this individual at the address set forth below.
PRINT NAME:
TITLE:
EMAIL ADDRESS
STREET ADDRESS 1
PROVINCE/CITY/STATE
POSTAL/ZIP CODE
PHONE NUMBER
FAX NUMBER
BILLING CONTACT INFORMATION TABLE
Please provide the name and contact information of the Billing Contact under this Agreement. All
Invoices will be sent to this individual at the address set forth below.
PRINT NAME:
TITLE:
EMAIL ADDRESS
STREET ADDRESS 1
PROVINCE/CITY/STATE
POSTAL/ZIP CODE
PHONE NUMBER
FAX NUMBER
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
All notices should be sent to ipmcontracts( ironmountain.com OR Iron Mountain, Attn: Contract
Administration, 2100 Norcross Parkway, Suite 150, Norcross, Georgia, 30071, USA.
NOTE: SIGNATURE BLOCKS, AUTHORIZED PERSON NOTICES TABLE, AND BILLING CONTACT
INFORMATION TABLE FOLLOW ON THE NEXT PAGE NOTE: SIGNATURE BLOCKS, AUTHORIZED PERSON
NOTICES TABLE, AND BILLING CONTACT INFORMATION TABLE FOLLOW ON THE NEXT PAGE
DEPOSITOR
SIGNATURE:
PRINT NAME:
TITLE:
DATE:
EMAIL ADDRESS
BENEFICIARY
PRINT NAME:
TITLE:
DATE:
EMAIL ADDRESS:
IRON MOUNTAIN INTELLECTUAL PROPERTY MANAGEMENT, INC.
PRINT NAME:
TITLE:
DATE:
EMAIL ADDRESS:
ipmcontracts(a'%ironmountain.com
CITY OF MIAMI, a municipal
Corporation of the State of Florida
ATTEST:
By: By:
Priscilla A.Thompson Pedro G. Hernandez
City Clerk City Manager
APPROVED AS TO APPROVED AS TO FORM AND
INSURANCE REQUIREMENTS: CORRECTNESS:
By: By:
LeeAnn Brehm, Administrator
Risk Management
Julie O. Bru
City Attorney