Deposix software escrow contracts

For our sample escrow contracts, please send an e-mail to info{at}deposix{.}com

 

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5th OSE Summertalk: September 27, 2019 in Berlin

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Topic: AI. Data. Escrow.

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New publication

"Cloud Escrow as Risk Management Tool" in Deposix' latest book contribution: 'Legal IT Handbook, 3rd edition, published in October 2013 (in German).

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Licensing Executives Society (LES International): 
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Dissertations (doctoral thesis) on software escrow

Below, you will find descriptions of three German dissertations published (so far) on the subject of software escrow (in German). Deposix has provided input f.e. in the form of its own standard contracts.

 

2007: Stefan Rapp, “Escrow agreements in case of insolvency. A contribution to protecting IT investments”, Verlag Dr. Kovac, ISBN 978-3-8300-2939-7.


Important software can have great significance for the survival of a company, while the long-term certainty of continuous software maintenance, and thereby its functioning, can hardly be assured in the event that the software provider becomes insolvent. Given that software is usually only delivered in machine-readable form, which is not understandable to humans, and an obligation to release the source code readable by humans only arises in exceptional cases, the user generally has no insight into the workings of the software. Expensive and business-critical software must therefore be secured against the risk of bankruptcy of the provider. Contractual practice has generated escrow agreements as instruments in this respect. Stefan Rapp looks into the legally controversial question of whether escrow agreements are effective pursuant to German insolvency law (bankruptcy statutes). Rapp comes to the conclusion that software escrow agreements can indeed be so designed as to become effective and incontestable with regard to German insolvency law.

 

2005: Oliver Scherenberg, “Licence contracts in case of the licensor’s insolvency - with special consideration for the voting right of the official receiver, pursuant to Article 103 section 1 of InsO (Insolvency Code)”, BWV Berliner Wissenschafts-Verlag, ISBN 978-3-8305-1092-5.

 

In view of the major economic significance of licence contracts, the question arises about their continuity in case that a contractual partner becomes insolvent. The question of the fate of the licensee if the licensor becomes insolvent is of particular interest here, especially as the licensee has often based its entire business operation on the utilization of licensed rights. This paper is directed at practitioners and parties with an academic interest in equal measure, since, in addition to the comparative law perspective of the legal situation in the USA, where satisfactory results have been achieved with comparable original problems, there are also some reflections on how the granting of usage rights that are resistant to insolvency can be achieved by means of special contract design.

 

2002: Jörn Oberscheidt, "The resistance to insolvency of software escrow”, file: Writings on information, telecommunications and media law, Vol. 11, Lit-Verlag, ISBN 3-8258-6382-4.

 

Software escrow has now become established in Germany. It is primarily aimed at protecting software users against the insolvency of the software developer. However, this can only be achieved if software users are actually able to access the deposited documents (e.g. the source code for the software) in the case that the software developer becomes insolvent.



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