Contract analysis

Section 1.1 — Defined Terms As used in this Agreement, the following terms shall have the meanings set forth below: "Business Day" means any day other than a Saturday, Sunday, or a day on which banking institutions in Los Angeles, California are authorized or obligated by applicable law or executive order to close. For purposes of calculating any period of Business Days under this Agreement, the day of the act, event

Section 1.2 — Interpretation (a) Unless the context otherwise requires, (i) words in the singular include the plural and vice versa, (ii) references to any gender include the other genders and the neuter, (iii) the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation," (iv) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreemen

ARTICLE II — APPOINTMENT OF ESCROW AGENT

Section 2.1 — Appointment The Licensor and the Reseller hereby appoint Evergreen Trust Company, N.A. as escrow agent to hold, administer, invest, and disburse the Escrow Fund in accordance with and subject to the terms and conditions of this Agreement, and the Escrow Agent hereby accepts such appointment. Maria Gutierrez shall serve as the designated Escrow Officer of the Escrow Agent for purposes of administering th

Section 2.2 — Escrow Account Promptly following the execution and delivery of this Agreement (and in any event within five (5) Business Days thereof), the Escrow Agent shall establish a segregated, interest-bearing escrow account (the "Escrow Account") at its offices located at 400 South Hope Street, Suite 1100, Los Angeles, California 90071. The Escrow Account shall be titled: "Evergreen Trust Company, N.A., as Escr

Section 2.3 — Independent Contractor Status The Escrow Agent acts hereunder as an independent contractor and stakeholder and not as the agent, fiduciary, or trustee of or for either Party, except to the limited extent expressly set forth in this Agreement. The Escrow Agent shall have no duty or obligation other than those expressly set forth in this Agreement, and no implied duties or obligations shall be read into t

ARTICLE III — ESCROW DEPOSITS AND INVESTMENT

Section 3.1 — Deposit Schedule The Reseller shall deposit into the Escrow Account an amount equal to five percent (5%) of each quarterly Minimum Annual Commitment payment (each such amount, an "Escrow Deposit") concurrently with the Reseller's payment of such quarterly installment to the Licensor under the Reseller Agreement. Quarterly MAC payments are due under the Reseller Agreement on a Net 45 basis from the appli

Section 3.2 — Method of Deposit All Escrow Deposits shall be made by wire transfer of immediately available funds in United States Dollars to the Escrow Account in accordance with the wire transfer instructions set forth in Exhibit A hereto. The Escrow Agent shall provide the Licensor and the Reseller with written confirmation of each Escrow Deposit within two (2) Business Days of receipt of such deposit. In the even

Section 3.3 — Currency All Escrow Deposits, disbursements, investments, and other transactions under this Agreement shall be denominated in United States Dollars (USD). The Reseller bears all foreign exchange risk and currency conversion costs in connection with its obligation to make Escrow Deposits hereunder. The Escrow Agent shall have no obligation to convert any funds into or out of any currency other than Unite

Section 3.4 — Investment of Escrow Fund The Escrow Agent shall invest and reinvest the Escrow Fund in Permitted Investments as jointly directed by the Licensor and the Reseller in Joint Written Instructions delivered to the Escrow Agent from time to time. Such Joint Written Instructions shall specify the type and amount of Permitted Investment to be made. In the absence of Joint Written Instructions regarding investm

Section 3.5 — Tax Reporting For United States federal income tax purposes, all interest, earnings, income, and other proceeds on the Escrow Fund shall be treated as and reported as income of the Reseller, regardless of whether such amounts have been disbursed to the Reseller. The Escrow Agent shall issue Internal Revenue Service Form 1099 (or such other applicable tax information reporting form as may be required und

ARTICLE IV — INDEMNIFICATION CLAIMS AND DISBURSEMENTS

Section 4.1 — Claims Against the Escrow Fund The Escrow Fund shall be available to satisfy indemnification claims of the Licensor against the Reseller arising under or pursuant to the indemnification provisions of the Reseller Agreement (including without limitation Article XII thereof). The Licensor's indemnification claims may include, without limitation, claims arising from: (a) the Reseller's marketing, promotion

Section 4.2 — Claims Notice To make a claim against the Escrow Fund, the Licensor shall deliver a written Claims Notice simultaneously to the Escrow Agent and the Reseller in accordance with Section 7.3 of this Agreement. Each Claims Notice shall specify: (i) the nature and factual basis of the indemnification claim, including a reasonable description of the events, circumstances, or conduct giving rise to the claim;

Section 4.3 — Response Period The Reseller shall have thirty (30) Business Days following receipt of a Claims Notice (the "Response Period") to deliver to the Escrow Agent and the Licensor a written response to the Claims Notice. In its written response, the Reseller shall either: (a) accept the claim in whole or in part, specifying the accepted amount (the "Accepted Amount") and, if the claim is accepted only in par

Section 4.4 — Disbursement Upon Acceptance If the Reseller accepts a claim in whole or in part pursuant to Section 4.3(a), the Escrow Agent shall, within five (5) Business Days following receipt of the Reseller's written acceptance, disburse the Accepted Amount from the Escrow Fund to the Licensor by wire transfer of immediately available funds to the account designated by the Licensor in Exhibit B hereto (or such ot

Section 4.5 — Disbursement Upon Failure to Respond If the Reseller fails to deliver a written response to a Claims Notice within the Response Period, the Reseller shall be deemed to have accepted the claim in full for the entire Claimed Amount, and the Escrow Agent shall disburse the full Claimed Amount to the Licensor within five (5) Business Days following the expiration of the Response Period, in accordance with t

Section 4.6 — Disputed Claims If the Reseller disputes all or any portion of a Claimed Amount in accordance with Section 4.3(b), the following provisions shall apply: (a) The Disputed Amount shall remain in the Escrow Account pending final resolution of the dispute. The Escrow Agent shall not disburse any portion of the Disputed Amount except in accordance with this Section 4.6. (b) The Parties shall first attempt to

Section 4.7 — Limitation Disbursements from the Escrow Fund pursuant to this Article IV shall not exceed the then-available balance of the Escrow Fund at the time of disbursement. If the Claimed Amount or the Accepted Amount exceeds the then-available balance of the Escrow Fund, the Escrow Agent shall disburse only the amount then available in the Escrow Fund, and the Licensor shall have recourse against the Reseller

ARTICLE V — RELEASE OF ESCROW FUND

Section 5.1 — Release Upon Expiration or Termination Subject to Section 5.2, all amounts remaining in the Escrow Fund (including accrued interest and earnings thereon, less any amounts previously disbursed, any fees and expenses deducted by the Escrow Agent, and any amounts retained pursuant to Section 5.2) shall be released and disbursed to the Reseller on the Release Date. The Release Date is the date that is twelv

Section 5.2 — Holdback for Pending Claims Notwithstanding Section 5.1, if on the Release Date any indemnification claims are pending (i.e., Claims Notices have been delivered to the Escrow Agent and the Reseller pursuant to Section 4.2 but have not yet been finally resolved in accordance with Article IV), the Escrow Agent shall retain in the Escrow Account an amount equal to the aggregate Claimed Amounts of all such

Section 5.3 — Partial Releases At any time during the term of this Agreement, the Licensor and the Reseller may deliver Joint Written Instructions to the Escrow Agent directing the Escrow Agent to release specified amounts from the Escrow Fund to the Reseller. Upon receipt of such Joint Written Instructions, the Escrow Agent shall effect such release by wire transfer of immediately available funds to the Reseller's d

Section 5.4 — Wire Instructions for Release to Reseller All amounts released or disbursed to the Reseller under this Agreement shall be disbursed by wire transfer of immediately available funds to the account designated by the Reseller in Exhibit C hereto, or to such other account as the Reseller may designate in writing to the Escrow Agent from time to time, subject to verification by the Escrow Agent by telephone c

ARTICLE VI — ESCROW AGENT PROVISIONS

Section 6.1 — Duties and Responsibilities The Escrow Agent's duties and responsibilities are limited to and determined solely by the express provisions of this Agreement. The Escrow Agent shall act in accordance with the written instructions, Joint Written Instructions, Claims Notices, and other written directions delivered to it pursuant to this Agreement. The Escrow Agent shall have no duty to inquire into or inter

Section 6.2 — Reliance The Escrow Agent may rely upon, and shall be fully protected in acting or refraining from acting upon, any written notice, instruction, certificate, statement, request, consent, agreement, waiver, direction, or other instrument or communication (including Joint Written Instructions, Claims Notices, arbitration awards, court orders, and tax forms) that the Escrow Agent in good faith believes to

Section 6.3 — Liability The Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the rights, powers, or discretion conferred upon it by this Agreement. In no event shall the Escrow Agent be liable for any loss or damage arising out of or in connection with this Agreement, including but not limited to any loss of princ

Section 6.4 — Indemnification of Escrow Agent The Licensor and the Reseller, jointly and severally, shall indemnify, defend, and hold harmless the Escrow Agent and its officers, directors, employees, agents, and affiliates (collectively, the "Escrow Agent Indemnified Parties") from and against any and all losses, claims, damages, liabilities, penalties, judgments, settlements, costs, and expenses (including reasonabl

Section 6.5 — Compensation of Escrow Agent The Escrow Agent shall be entitled to reasonable compensation for its services under this Agreement in accordance with the fee schedule set forth in Exhibit D hereto (the "Fee Schedule"). Such fees shall include an annual administration fee, per-disbursement fees, and fees for extraordinary services, each as set forth in the Fee Schedule. All fees and expenses of the Escrow

Section 6.6 — Resignation or Removal (a) Resignation. The Escrow Agent may resign from its duties hereunder at any time by giving not less than thirty (30) days' prior written notice of resignation to each of the Licensor and the Reseller. Such resignation shall take effect on the date specified in the notice of resignation (which date shall not be earlier than thirty (30) days after delivery of such notice) or upon

Section 6.7 — Interpleader If at any time the Escrow Agent is uncertain as to its duties or rights hereunder, or if the Escrow Agent receives conflicting instructions, claims, or demands from the Parties or any other person or entity with respect to the Escrow Fund, the Escrow Agent may, in its sole discretion and without liability to any Party: (a) refrain from taking any action (other than to continue to hold the E

ARTICLE VII — GENERAL PROVISIONS

Section 7.1 — Governing Law This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California, without giving effect to any choice-of-law or conflict-of-laws provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. Each of the Agree

Section 7.2 — Dispute Resolution (a) Disputes Between the Parties. Any dispute, controversy, or claim arising out of or relating to this Agreement that is solely between the Licensor and the Reseller (and does not involve the Escrow Agent's duties, obligations, or liabilities under this Agreement) shall be resolved in accordance with the dispute resolution provisions of the Reseller Agreement, which provide for bindi

Section 7.3 — Notices All notices, instructions, requests, consents, Claims Notices, Joint Written Instructions, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and received: (a) upon delivery, if delivered by hand or by recognized overnight courier (such as Severin Partners LLC, Tarrant & Co., or ups), (b) upon transmission, if sent by email with

Section 7.4 — Amendments and Waivers This Agreement may be amended, modified, or supplemented only by a written instrument duly executed by all three Agreement Parties (i.e., the Licensor, the Reseller, and the Escrow Agent). No amendment or modification of this Agreement shall be effective unless it is in writing and signed by all Agreement Parties. No waiver of any provision of this Agreement, and no consent to any

Section 7.5 — Entire Agreement This Agreement, together with the Reseller Agreement and all exhibits, schedules, and annexes hereto and thereto, constitutes the entire agreement among the Agreement Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, correspondence, representations, warranties, agreements, and understandings, whether oral or written

Section 7.6 — Severability If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction or an arbitrator, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. The Agreement Part

Section 7.7 — Counterparts This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by portable document format (PDF) transmission, electronic signature (including Brightwater Software or similar electronic signature platform), o

Section 7.8 — Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the Agreement Parties and their respective successors, heirs, administrators, and permitted assigns. No Agreement Party may assign, transfer, or delegate its rights, interests, or obligations under this Agreement, in whole or in part, without the prior written consent of the other Agreement Parties (which conse

Section 7.9 — No Third-Party Beneficiaries This Agreement is entered into solely for the benefit of the Agreement Parties and their respective permitted successors and assigns. Nothing in this Agreement, whether express or implied, shall confer upon any person or entity (other than the Agreement Parties and their respective permitted successors and assigns) any legal or equitable right, benefit, remedy, or claim unde

Section 7.10 — Relationship to Reseller Agreement This Agreement supplements and is ancillary to the Reseller Agreement. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Reseller Agreement with respect to the escrow deposit mechanics, the investment and administration of the Escrow Fund, the indemnification holdback and claims procedures relating to the Escrow Fun