2008/12/22 Council Agenda Packet

l3 EFFECTIVE DATE: DEPOSIT ACCOUNT NUMBER: THREE-PARTY ESCROW SERVICE AGREEMENT 1. Introduction. This Three Party Escrow Service Agreement(the"Agreement")is entered into by and among:ERG Transit Systems(USA)Inc., and ERG R&D Pty Ltd.,collectively referred to herein as the"Depositor";King County,Central Puget Sound Regional Transit Authority("Sound Transit");the City of Everett("Everett Transit");the Kitsap County Public Transportation Benefit Area ("Kitsap Transit");the Pierce County Public Transportation Benefit Area("Pierce Transit");the Snohomish County Public Transportation Benefit Area("Community Transit");and the State of Washington,acting through the Washington State Department of Transportation,Washington State Ferries Division("WSF"),each referred to herein as a"Beneficiary"or collectively"Beneficiaries";and Iron Mountain Intellectual Property Management,Inc.referred to herein as"Iron Mountain". The Depositor,the Beneficiary,and Iron Mountain may be referred to individually as a"Party"or collectively as the"Parties" throughout this Agreement. (a) The use of the term services in this Agreement shall refer to Iron Mountain services that facilitate the creation, verification,management,enforcement of software or other technology escrow accounts and any other Iron Mountain obligations as described in this Agreement,including but not limited to the Iron Mountain obligations detailed in Exhibits A and V,attached hereto("Services"). A Party shall request Services under this Agreement by submitting a work request for certain Iron Mountain Services("Work Request")via written instruction or the online portal maintained at the website located at or other websites owned or controlled by Iron Mountain that are linked to that website(collectively the"Iron Mountain Website"). (b) The Beneficiaries have entered into Contract#229944 with the Depositor for the Development,Implementation, Operation And Maintenance of the Regional Fare Coordination System("RFCS")("Contract")which contains license provisions conveying intellectual property rights to the Beneficiaries and other transportation agencies,and the Parties intend this Agreement to be considered as supplementary to the Contract,pursuant to Title 1 I United States[Bankruptcy]Code, Section 365(n). 2. The Depositor's Responsibilities and Representations. (a) The Depositor shall make a deposit with Iron Mountain of proprietary technology and other materials related to the RFCS in accordance with the Depositor's obligations under the Contract ("Deposit Material"). The Depositor shall also update Deposit Material from time to time during the Term of this Agreement in accordance with the Depositor's obligations under the Contract. At the time of each deposit or update,the Depositor will provide an accurate and complete description of all Deposit Material sent to Iron Mountain using the form attached hereto as Exhibit B and certify that the deposit includes all technology and other materials that the Depositor is required to deposit with Iron Mountain in accordance with the terms of the Contract. (b) The Depositor represents that it 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 and the Beneficiaries under this Agreement.The Depositor warrants that with respect to the Deposit Material,Iron Mountain's proper administration of this Agreement will not violate the rights of any third parties. (c) The Depositor represents that 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. (d) The Depositor consents and agrees to the performance of the verification Services described in Exhibit V ESCROW DEPOSIT STATEMENT OF WORK FOR LEVEL 1 AND 2("Exhibit V")according to the terms of Exhibit V. The Depositor additionally agrees,upon request by Iron Mountain,in support of the Beneficiaries'request for verification Services,to complete and return the Escrow Deposit Questionnaire attached hereto as Exhibit Q within thirty(30)days of such request. The Depositor consents to Iron Mountain's performance of any level(s)of verification Services described in Exhibit A and Exhibit V,attached hereto. The Depositor further consents to Iron Mountain's use of a subcontractor to perform verification Services.Any such subcontractor shall be bound by the same confidentiality obligations as Iron F. l Mountain and shall not be a direct competitor to either the Depositor or the Beneficiaries.Iron Mountain shall ensure that each such subcontractor and all their officers,directors,employees and other staff strictly observes all of Iron Mountain's Updated December 2008 Page 1 of 33