timbus - Digital Preservation Coalition

Nov 21, 2011 - WHAT IS AN SOFTWARE ESCROW AGREEMENT? timbusproject.net © ... •Software development. •Delivers object .... constitutes the website.
1MB Sizes 3 Downloads 259 Views
TIMBUS Digital Preservation for Timeless Business Processes and Services

Escrow services for long time access: emerging trends and issues Dr. Barbara Kolany, ITM, Münster University Bristol, 21 November 2011

WHAT IS AN SOFTWARE ESCROW AGREEMENT?

An Escrow Agreement is a contract

Three-Party Contract

Two-Party Contract

Contracting Parties: • Licensor • Escrow Agent • Licensee

Contracting Parties: • Licensor • Escrow Agent

Escrow Agreement is negotiated between all parties

Terms of the Escrow Agreement are usually prepared by the Licensor

Terms are usually customized

Standard terms are used

All tree parties sign the contract

Licensor and Escrow Agent sign the agreement Software User sign the user enrolment schedule

22/11/2011

2

timbusproject.net © 2011

Escrow Agent

•Verifies and deposits the source code •Controls updating •Delivers source code to the licensee

in case the trigging event occurs

Source Code

Source Code

Escrow Agreement

Licensor

Licensee Software License

•Software development •Delivers object code to the licensee •Delivers source code to the Escrow Agent •Obligation to deposit updates at the Escrow

Object Code

•Uses software •Wants to secure investment •receives, in case the trigging

event occurs, the source code

Agent 22/11/2011

3

timbusproject.net © 2011

Deposit in favour of several Licensees Deposit in favour of a determined number of Licensees Escrow Agent Licensee

Licensee Licensor

Licensee

22/11/2011

4

timbusproject.net © 2011

Deposit in favour of several Licensees Escrow Agent

Escrow Agent Licensor Licensor

Licensee Licensee

Licensee

Licensee

Licensee

Joining by signing a two-partied contract

Joining by signing a three-partied contract 22/11/2011

Licensee

5

timbusproject.net © 2011

Reasons for a Software Escrow Agreement

Reasons for the Licensor

Reasons for the Licensee

•Prove •

Secure long time investments

independency of his development (IP-Rights)



Risk management strategy

•Confidence



Gets access to the deposit materials

•Independent



Licensor cannot remove deposit material



verification of deposited

materials •Helps

Verification of the deposited materials

22/11/2011

building measure

•May

6

to improve the quality of documents

be a back up in case of disaster

timbusproject.net © 2011

Risks to be covert



Risk of Insolvency of the Licensor



Liquidation or extinction due to the lack of funds



No further development of the software



Refusal or failure to fulfil the contractually established obligations



IP rights assignment (if the new owner provides no escrow protection) 22/11/2011

7

timbusproject.net © 2011

The Risk of Insolvency cannot totally be covert Licenses for a determined period of time •Treated like a leasing contract in

Austria and Germany. •Licensees’ obligation: periodical

payment. •Licensors’ obligation: software

The Austrian and German Insolvency law establish that in case a mutual contract exists when the insolvency proceeding star