Hart contract in plain text part 11: Master Preferred Escrow Agreement

["Pete Klammer" <pklammer@xxxxxxxxxxx>]

Master Preferred Escrow Agreement

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reement.tif

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MASTER PREFERRED ESCROW AGREEMENT 
MasterNumber flgflh1gt_nflpgJ 
This agreement ("Agreement") is effective November 29, 2001 among DSI
Technology Escrow Services, Inc. 
("DSI"), Hart InterCivic, Inc. ("Depositor"), and any additional party
signing the Acceptance Form attached to this 
Agreement ("Preferred Beneficiary"), who collectively may be referred to in
this Agreement as the parties 
("parties"). 
A. Depositor and Preferred Beneficiary have entered or will enter into a
separate agreement regarding certain proprietary technology of Depositor
(referred to in this Agreement as "the License Agreement"). 
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances. 
C. The availability of the proprietary technology of Depositor is critical
to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under
certain limited circumstances. 
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor. 
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 11 United States [Bankruptcy] Code, Section 365(n). 
ARTICLE I -- DEPOSITS 
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall
deliver to DSI the proprietary technology and other materials ("Deposit
Materials") required to be deposited by the License Agreement or, if the
License Agreement does not identify the materials to be deposited with DSI,
then such materials will be identified on Exhibit A. If Exhibit A is
applicable, it is to be prepared and signed by Depositor and Preferred
Beneficiary. DSI shall have no obligation with respect to the preparation,
signing or delivery of Exhibit A. 
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification
each document, magnetic tape, disk, or other tangible media upon which the
Deposit Materials are written or stored. Additionally, Depositor shall
complete Exhibit B to this Agreement by listing each such tangible media by
the item label description, the type of media and the quantity. Exhibit B
shall be signed by Depositor and delivered to DSI with the Deposit
Materials. Unless and until Depositor makes the initial deposit with DSI,
DSI shall have no obligation with respect to this Agreement, except the
obligation to notify the parties regarding the status of the account as
required in Section 2.2 below. 
1.3. Escrow Account Name Identification. Subject to this Article 1, and at
the time Depositor makes the initial deposit with DSI in accordance with
Section 1.2 above, Depositor shall complete and sign Exhibit D naming the
initial account upon which the Deposit Materials are written or stored. Any
new deposits referencing new account names made subsequent to the signing of
this Agreement, intended by the Depositor to be held in a separate account
and maintained separately from the initial account, but made a part of this
Agreement, shall be provided for by the Depositor on Exhibit E, and Exhibit
E shall be signed by the Depositor and DSI. 
1.4 Deposit Inspection. When DSI receives the Deposit Materials and Exhibit
B, DSI will conduct a deposit inspection by visually matching the labeling
of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on Exhibit B. 
1.5 Acceptance of Deposit. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will date and sign Exhibit B and
mail a copy thereof to Depositor and Preferred Beneficiary. If DSI
determines that the labeling does not match the item 
descriptions or quantity on Exhibit B, DSI will (a) note the discrepancies
in writing on Exhibit B; (b) date and sign Exhibit B with the exceptions
noted; and (c) mail a copy of Exhibit B to Depositor and Preferred
Beneficiary. DSI's acceptance of the deposit occurs upon the signing of
Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been
received and accepted by DSI. 
1.6 Depositor's Representations. Depositor represents as follows: 
a. Depositor lawfully possesses all of the Deposit Materials deposited with
DSI; 
b. With respect to all of the Deposit Materials, Depositor has the right and
authority to grant to DSI and Preferred Beneficiary the rights as provided
in this Agreement; 
c. The Deposit Materials are not subject to any lien or other encumbrance; 
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as the
case may be; and 
e. The Deposit Materials are readable and useable in their current form or,
if any portion of the Deposit Materials is encrypted, the decryption tools
and decryption keys have also been deposited. 
1.7 Verification. A verification determines, in different levels of detail,
the accuracy, completeness, sufficiency and quality of the Deposit
Materials. Depositor and Preferred Beneficiary shall, by mutual written
agreement, have the right to cause a verification of any Deposit Materials,
upon reasonable advance notice to DSI and payment of applicable fees. If a
verification is requested after the Deposit Materials have been delivered to
DSI, then only DSI, or at DSI's election an independent person or company
selected and supervised by DSI, may perform the verification. 
1.8 Deposit Updates. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within sixty (60) days of each
release of a new version of the product which is subject to the License
Agreement. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and the new Exhibit B shall be
signed by Depositor. Each Exhibit B will be held and maintained separately
within the escrow account. An independent record will be created which will
document the activity for each Exhibit B. The processing of all deposit
updates shall be in accordance with Sections 1.2 through 1.7 above. All
references in this Agreement to the Deposit Materials shall include the
initial Deposit Materials and any updates. 
1.9 Removal of Deposit Materials. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and
Preferred Beneficiary, or as otherwise provided in this Agreement. 
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING 
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect
the confidentiality of the Deposit Materials. Except as provided in this
Agreement, DSI shall not disclose, transfer, make available, or use the
Deposit Materials. DSI shall not disclose the content of this Agreement to
any third party. If DSI receives a subpoena or any other order from a court
or other judicial tribunal pertaining to the disclosure or release of the
Deposit Materials, DSI will immediately notify the parties to this Agreement
unless prohibited by law. It shall be the responsibility of Depositor and/or
Preferred Beneficiary to challenge any such order; provided, however, that
DSI does not waive its rights to present its position with respect to any
such order. DSI will not be required to disobey any order from a court or
other judicial tribunal. (See Section 7.5 below for notices of requested
orders.) 
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request
of any party to this Agreement. 
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice. 
ARTICLE 3 -- GRANT OF RIGHTS TO DSI 
3.1 Title to Media. Depositor hereby transfers to DSI the title to the media
upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights. 
3.2 Right to Make Copies. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI
shall copy all copyright, nondisclosure, and other proprietary notices and
titles contained on the Deposit Materials onto any copies made by DSI. With
all Deposit Materials submitted to DSI, Depositor shall provide any and all
instructions as may be necessary to duplicate the Deposit Materials
including but not limited to the hardware and/or software needed. 
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the right
to transfer Deposit Materials to 
Preferred Beneficiary upon any release of the Deposit Materials for use by
Preferred Beneficiary in accordance with 
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, DSI shall not transfer the 
Deposit Materials. 
ARTICLE 4 -- RELEASE OF DEPOSIT 
4.1 Release Conditions. As used in this Agreement, "Release Conditions"
shall be as set forth in the Preferred Beneficiary Acceptance Form executed
among DSI, Depositor and each individual Preferred Beneficiary. 
4.2 Filing for Release. If Preferred Beneficiary believes in good faith that
a Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the occurrence of the Release Condition and a request for
the release of the Deposit Materials. Upon receipt of such notice, DSI shall
provide a copy of the notice to Depositor by commercial express mail. 
4.3 Contrary Instructions. From the date DSI mails the notice requesting
release of the Deposit Materials, Depositor shall have ten (10) business
days to deliver to DSI contrary instructions ("Contrary Instructions").
Contrary Instructions shall mean the written representation by Depositor
that a Release Condition has not occurred or has been cured. Upon receipt of
Contrary Instructions, DSI shall send a copy to Preferred Beneficiary by
commercial express mail. Additionally, DSI shall notify both Depositor and
Preferred Beneficiary that there is a dispute to be resolved pursuant to
Section 7.3 of this Agreement. Subject to Section 5.2 of this Agreement, DSI
will continue to store the Deposit Materials without release pending (a)
joint instructions from Depositor and Preferred Beneficiary; (b) dispute
resolution pursuant to Section 7.3; or (c) order of a court. 
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release the Deposit Materials to the
Preferred Beneficiary or, if more than one beneficiary is registered to the
deposit, to release a copy of the Deposit Materials to the Preferred
Beneficiary. However, DSI is entitled to receive any fees due DSI before
making the release. Any copying expense in excess of $300 will be chargeable
to Preferred Beneficiary. Upon any such release, the escrow arrangement will
terminate as it relates to the Depositor and Preferred Beneficiary involved
in the release. 
4.5 Right to Use Following Release. Unless otherwise provided in the License
Agreement, upon release of the 
Deposit Materials in accordance with this Article 4, Preferred Beneficiary
shall have the right to use the Deposit 
Materials for the sole purpose of continuing the benefits afforded to
Preferred Beneficiary by the License 
Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit 
Materials. 
ARTICLE 5 -- TERM AND TERMINATION 
5.1 Term of Agreement. The initial term of this Agreement is for a period of
one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct
DSI in writing that the Agreement is terminated; or (b) DSI instructs
Depositor and Preferred Beneficiary in writing that the Agreement is
terminated for nonpayment in accordance with Section 5.2 or by resignation
in accordance with Section 5.3. If the Acceptance Form has been signed at a
date later than this Agreement, the initial term of the Acceptance Form will
be for one year with subsequent terms to be adjusted to match the
anniversary date of this Agreement. If the Deposit Materials are subject to
another escrow agreement with DSI, DSI reserves the right, after the initial
one year term, to adjust the anniversary date of this Agreement to match the
then prevailing anniversary date of such other escrow arrangements. 
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to the parties to
this Agreement affected by such delinquency. Any such party shall have the
right to make the payment to DSI to cure the default. If the past due
payment is not received in full by DSI within one month of the date of such
notice, then at any time thereafter DSI shall have the right to terminate
this Agreement to the extent it relates to the delinquent party by sending
written notice of termination to such affected parties. DSI shall have no
obligation to take any action under this Agreement so long as any payment
due to DSI remains unpaid. 
5.3 Termination By Resignation. DSI reserves the right to terminate this
Agreement, for any reason, by providing Depositor and Preferred Beneficiary
with 60-days' written notice of its intent to terminate this Agreement.
Within the 60-day period, the Depositor and Preferred Beneficiary may
provide DSI with joint written instructions authorizing DSI to forward the
Deposit Materials to another escrow company and/or agent or other designated
recipient. If DSI does not receive said joint written instructions within 60
days of the date of DSI's written termination notice, then DSI shall
destroy, return or otherwise deliver the Deposit Materials in accordance
with Section 5.4. 
5.4 Disposition of Deposit Materials Upon Termination. Subject to the
foregoing termination provisions, and upon termination of this Agreement,
DSI shall destroy, return, or otherwise deliver the Deposit Materials in
accordance with instructions. If there are no instructions, DSI may, at its
sole discretion, destroy the Deposit Materials or return them to Depositor.
DSI shall have no obligation to destroy or return the Deposit Materials if
the Deposit Materials are subject to another escrow agreement with DSI or
have been released to the Preferred Beneficiary in accordance with Section
4.4. 
5.5 Survival of Terms Following Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive: 
a. Depositor's Representations (Section 1.6); 
b. The obligations of confidentiality with respect to the Deposit Materials;

c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section 4.5), if a
release of the Deposit Materials has occurred prior to termination; 
d. The obligation to pay DSI any fees and expenses due; 
e. The provisions of Article 7; and 
f. Any provisions in this Agreement which specifically state they survive
the termination of this Agreement. 
ARTICLE 6 -- DSI'S FEES 
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. Unless otherwise stated in this
Agreement or agreed in a writing signed by DSI, Depositor will pay DSI's
fees. DSI 
shall notify the party responsible for payment of DSI's fees at least sixty
(60) days prior to any increase in fees. For any service not listed on DSI's
standard fee schedule, DSI will provide a quote prior to rendering the
service, if requested. 
6.2 Payment Terms. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI are
paid in full. Fees are due upon receipt of a signed contract or receipt of
the Deposit Materials whichever is earliest. If invoiced fees are not paid,
DSI may terminate this Agreement in accordance with Section 5.2. 
ARTICLE 7 LIABILITY AND DISPUTES 
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be
genuine. DSI 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. DSI shall not be required to inquire into the truth or evaluate the
merit of any statement or representation contained in any notice or
document. DSI shall not be responsible for failure to act as a result of
causes beyond the reasonable control of DSI. 
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this
escrow arrangement unless such Liabilities were caused solely by the
negligence or willful misconduct of DSI. 
7.3 Dispute Resolution. Any dispute relating to or arising from this
Agreement shall be resolved as provided in the Preferred Beneficiary
Acceptance Form executed among DSI, Depositor and each individual Preferred
Beneficiary. 
7.4 Controlling Law. Except as may be provided in the Preferred Beneficiary
Acceptance Form executed among DSI, Depositor and each individual Preferred
Beneficiary, this Agreement is to be governed and construed in accordance
with the laws of Texas, without regard to its conflict of law provisions. 
7.5 Notice of Requested Order. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction which may direct DSI
to take, or refrain from taking any action, that party shall: 
a. Give DSI at least two business days' prior notice of the hearing; 
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the reasonable
value of the services to be rendered pursuant to such order; and 
c. Ensure that DSI not be required to deliver the original (as opposed to a
copy) of the Deposit Materials if DSI may need to retain the original in its
possession to fulfill any of its other escrow duties. 
ARTICLE 8 -- GENERAL PROVISIONS 
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form and
Exhibits described herein, embodies the entire understanding among all of
the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written.
DSI is not a party to the License Agreement between Depositor and Preferred
Beneficiary and has no knowledge of any of the terms or provisions of any
such License Agreement. DSI's only obligations to Depositor or Preferred
Beneficiary are as set forth in this Agreement. No amendment or modification
of this Agreement shall be valid or binding unless signed by all the parties
hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not
be signed by Preferred Beneficiary, Exhibit C need not be signed, and the
Acceptance Form need only be signed by the parties identified therein. 
8.2 Notices. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses specified
in the attached Exhibit C and Acceptance Form. It shall be the
responsibility of the parties to notify each other as provided in this
Section in the event of a change of address. The parties shall 
have the right to rely on the last known address of the other parties.
Unless otherwise provided in this Agreement, all documents and
communications may be delivered by First Class mail. 
8.3 Severability. In the event any provision of this Agreement is found to
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the
validity of this Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a valid and
enforceable provision most closely reflecting the intent and purpose of the
original provision. 
8.4 Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor
or assign of Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties. 
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for and
warrant 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
Materials may be delivered in accordance with the provisions of this
Agreement. 
Hart InterCivic, Inc. DSI Techno ogy Escrow Services, c. 
By:__________ 
Name: Jerry D. Meadows Name: I . 
CONTRAGI ADMINISTRATOR 
Title: Senior Vice President Title: __________________________________ 
Date: November 29, 2001 Date: __________________________ 
P01 v2 
EXHIBIT B 
DESCRIPTION OF DEPOSIT MATERIALS 
Depositor Company Name: Hart InterCivic, Inc. 
Account Number: 080(10 ( 
Product Name: eSlate EVS Version: NA 
(Product Name will appear as the Exhibit B Name on Account History report) 
DEPOSIT MATERIAL DESCRIPTION: 
Quantity Media Type & Size Label Description of Each Separate Item 
Disk 3.5" or 
DAT tape mm 
L CD-ROM eSlate EVS BOSS 2.5.03 Tally 2.6.10 Ballot Now 1.3.11 
Data cartridge tape 
TK 70 or tape 
Magnetic tape 
Documentation 
Other ________________________ 
PRODUCT DESCRIPTION: 
Environment: Windows NT 
DEPOSIT MATERIAL INFORMATION: 
Is the media or are any of the files encrypted? es I No If yes, please
include any passwords and the decryption 
tools. 
Encryption tool name: NA Version: NA 
Hardware required: NA 
Software required: NA 
Other required information: NA 
I certify for Depostor th e ab ye described Deposit Materials have been
transmitted to DSI: 
Signature: 
Print Name: Kenneth D. Owens 
Date: November 29, 2001 
DSI has inspected and accepted the above materials (any exceptions are noted
above): 
Signature: ____________________________ 
Print Name:  'EF?LIA/ ). MCi- fl.J4 
Date Accepted: /2/IqIof 
Exhibit B#: / 
Send materials to: DSI, 9265 Sky Park Ct., Suite 202, San Diego, CA 92123
(858)499-1600 
EXHIBIT C 
DESIGNATED CONTACT 
Account Number: 08011 06-00001 
Notices and communications should be addressed to: 
Company Name: Hart InterCivic, Inc. 
Address: 15500 Wells Port Drive 
Address: Austin, Texas 78728 
Designated Contact: Jerry D. Meadows 
Tel: (512) 252-6400 
Fax: (512) 252-6556 
Email: jmeadows@xxxxxxxxxx 
Verification Contact: Jerry D. Meadows 
Invoices should be addressed to: 
Address: 15500 Wells Port Drive 
Address: Austin, Texas 78728 
Contact: Tina Santos 
Tel: (512) 252-6400 
P.O.# if req'rd: NA 
Email: tsantos@xxxxxxxxxx 
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee. 
Contracts, Deposit Materials and notices to DSI should be addressed: 
DSI Technology Escrow Services, Inc. 
Contract Administration 
Suite 202 
9265 Sky Park Court 
San Diego, CA 92123 
Tel: (858) 499-1600 
Fax: (858) 694-1919 
Email: ca@xxxxxxxxxxxxx 
Invoice inquiries and fee remittances addressed to: 
DSI Technology Escrow Services, Inc. 
Accounts Receivable 
P.O. Box 45156 
San Francisco, CA 94145-0156 
Tel: (858) 499-1636 
Fax: (858) 499-1637 
Date: November 29, 2001 
P01v2 
EXHIBIT D 
NAME OF INITIAL ACCOUNT 
AccountNumber 0801106-00001 
Hart InterCivic, Inc. ("Depositor") has entered into a Master Preferred
Escrow Agreement with DSI Technology 
Escrow Services, Inc. ("DSI"). Pursuant to that Agreement, Depositor may
deposit certain Deposit Materials with 
DSI. 
The initial account will be referenced by the following name: eSlate EVS 
Hart InterCivic, Inc. 
Depositor 
BcZ 
Name: Jerry D. Meadows 
Title: Senior Vice President 
Date: November 29, 2001