It should be separate from the licensing agreement, but incorporated by reference into it. The most common escrow agreement is a three-party arrangement among the licensor, licensee, and escrow agent. This avoids the cost of establishing repeated identical escrows. Additions or deletions to the list of licensees maintained by the escrow agent are submitted by the licensor. Written confirmation from the escrow agent provides an accurate record of the potential recipients of the escrowed materials.
Trust agreements are another escrow approach.
They are designed to help shield the escrow from a trustee in bankruptcy by removing title to the source code from the licensor's estate. The escrow agent holds title in trust as trustee for the benefit of the licensee, who holds beneficial or equitable title. See other ways to deal with the bankruptcy problem below. The materials deposited into escrow must be sufficient to enable the licensee to maintain and enhance the program independently. Beside source code, support documentation should include such items as type of hardware used, the programming language, printouts, flow charts, schematics, and even machine readable object code.