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In situations in which a software licensee does not have direct access to source code, a source code escrow agreement can permit access if certain conditions are met. For example, most source code escrow clauses provide a description of deposit materials, a trusted third party or escrow agent, a set of deposit procedures and a trigger (e.g., bankruptcy) for release of the deposit materials. Because software systems are frequently updated, the escrow deposit can lag behind or otherwise fail to reflect the licensed software. This can be problematic if an escrow release is triggered and licensee has to rebuild a production system from an outdated escrow deposit. The following language requires a licensor to refresh an initial source code deposit to ensure that the escrow materials reflect the latest production code release: When and if LICENSOR provides LICENSEE with any new release or update of the Licensed Software, including any and all modifications to the Licensed Software, LICENSOR shall within thirty (30) days deposit with the Escrow Agent a corresponding Source Escrow Deposit for the Licensed Software, and transmit to LICENSEE notice of such delivery. John F. Greco is an associate in the New York office of Brown Raysman Millstein Felder & Steiner LLP. This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice.

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