Intellectual Property

AwareX Ownership. All right, title, and interest, including all intellectual property rights in Agora and any associated hardware and software of AwareX or its licensors, and any updates, or upgrades thereof, or in any ideas, know-how, and programs developed by AwareX or its licensors during the course of performance of this Agreement shall remain the property of AwareX or its licensors. 

 

Customer Ownership. All rights, title, and interest including all intellectual property in any Customer-provided Content communicated via AwareX’s infrastructure through use of Agora shall remain the sole property of Customer.

 

Source Code and Escrow. AwareX hereby confirms that it will place the Source Code of the Software, which is proprietary to AwareX and any other documentation or materials reasonably necessary for the maintenance of the Software (“Materials”) and which has not been provided to Customer, has been deposited with the National Computing Centre (“Escrow Agent”) in accordance with the escrow agreement (“Escrow Agreement”) in place between AwareX and such Escrow Agent, and that such deposit will be updated as necessary to remain current with the version of the Software used by Customer. Upon no later than thirty (30) days following the Effective Date, AwareX hereby agrees to register Customer as a beneficiary under such Escrow Agreement. The annual costs of the Escrow agreement, deposit of code in line with this agreement, registration and related annual charges of the Escrow Agent will be paid in full by Customer, who will issue a Purchase Order to AwareX before the deposit of code is enabled. The Escrow Agent shall issue to Customer an escrow protection certificate related to the Software. Release of the Source Code and Materials to Customer will be under and in accordance with the terms and conditions of the Escrow Agreement, which Escrow Agreement (as amended) shall be attached as Exhibit E to this Agreement and incorporated herein by this reference. A “Release Event” shall mean the following:
    1. AwareX becomes insolvent or generally fails to pay, or admits in writing its inability to pay its debts as they become due or applying for or consenting to the appointment of a trustee, receiver or other custodian for AwareX, or making a general assignment for the benefit of its creditors, or in the event of bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceedings commenced by or against AwareX, and if such case or proceeding is not commenced by AwareX, such case or proceeding is acquiesced in, or a motion to dismiss is not filed, within thirty (30) days – if one of the events outlined in this section 8.3(a) takes place, Escrow Agent shall release the Source Code to Customer thirty (30) days following the occurrence of a Release Event
    2. AwareX ceases to carry its business or the part of its business which relates to the Solution; or
    3. AwareX, or where applicable, its agent, Affiliate, or associated company, breaches its obligation to provide Maintenance and Support in accordance with Section 6 of this agreement (Support for Agora) and such breach remains uncured for a period of thirty (30) days following Customer written notification of such failure; and where Customer is not in deficit of its payment obligations.

Notwithstanding anything to the contrary herein or in the Escrow Agreement, AwareX may not designate a different Escrow Agent or modify the terms of the Escrow Agreement without Customer’s prior written consent and agreement, which shall not be unreasonably withheld.

If and to the extent a Release Event has occurred AwareX grants to Customer a software license for Customer and its Affiliates to access and use the Source Code of the Software and to modify, update, improve and create derivative works from such Software (and to use such Software as modified) as necessary for Customer to make continued use of the Software in accordance with this Agreement, pursuant to and in accordance with this Section 8.3. In addition, and strictly for such purposes, AwareX shall, at Customer’s request, provide services for a reasonable fee Customer to facilitate knowledge transfer of the Source Code to Customer.