If your business depends on an asset you do not own or control, such as a software package or eCommerce solution, escrow is a way of ensuring that you have a means of obtaining vital material such as source code, software or data.
Escrow is, by definition, where one party to an agreement deposits goods or money with an independent trusted third party, known as an escrow agent, who holds them until the terms of an escrow agreement have been performed.
We are experienced escrow solicitors and the areas we cover include:
Escrow is increasingly being used in the IT sector in developer/client relationships. If your business depends on an asset you do not own or control – such as a software package or eCommerce solution – escrow is a way of ensuring that you have a means of obtaining vital material – source code, software, data etc – under certain circumstances laid out in an escrow agreement. These circumstances would mean anything that risks the performance of the asset in question, such as the developer going bankrupt or failing to maintain software as promised in the agreement. If you are a developer, escrow allows you to provide your client with peace of mind whilst maintaining the secrecy and security of the assets in question.
We have copious experience in drafting escrow agreements and our clients include leading software providers and household brands. We can draw up an escrow agreement that will protect your interests whilst satisfying both parties, enabling a mutually beneficial situation. We can also advise you on the terms of escrow agreements drafted by others and negotiate on your behalf, and act as an escrow agent by storing material.
Data Escrow Definition
Data escrow is where one party to an agreement deposits information with an escrow agent, pending the performance of an obligation by the other party. If the obligation is not performed then the data will revert back to the party that deposited it with the escrow agent. This type of escrow has traditionally been used in relation to databases but has become prevalent in its own right recently with the emergence and widespread proliferation of Software as a Service (“SaaS”), also known as “cloud computing”.
Software as a Service
SaaS is where the software used to create, access and store data is hosted on a central server by a service provider, together with the data itself, on behalf of several companies. This differs from the traditional model of hosting data on a hard drive in a computer situated on a company’s premises. Data is often interacted with through a web browser when SaaS is deployed, removing the need for a business to invest heavily in the hosting and maintenance of its own data and instead delegating this to a third party provider in return for payment of a fee. This places an obligation on the provider, however, to ensure that a business is able to access its own data and that it is being held securely.
Advantages of Data Escrow
Data escrow acts to mitigate the risks associated with outsourcing critical data, particularly because the benefits received as costs savings can easily evaporate by the data being unlawfully accessed, corrupted or otherwise deleted. The escrow agreement will also provide for a quick remedy in the event of the hosting company becoming insolvent or for service outages or data losses that harm a business. In such an event, the clients will be entitled to recover their data and in some cases, may be entitled to the underlying data behind the SaaS framework. This will motivate the provider to proactively protect their network.
Lawdit’s Data Escrow Services
Lawdit acts for clients around the world in relation to data escrow services and our team of escrow agents and solicitors are always on hand to assist and advise you. We offer a free call back service and are happy to discuss your particular needs, concerns and goals. Call or contact us today if you are looking to escrow data and we’ll be pleased to talk you through your options.
In a typical Software Escrow Agreement the owner (‘the Licensor’) of the software provides a copy of the database content, website, instructions/ support manuals, other Intellectual Property, source code (instructions/ statements written in eye-readable form in programmer’s language and capable of being compiled into object code and an object code being a computer code that a computer can understand) to an escrow agent (a trusted third party). The source code is the formula of any software programme.
The Escrow Agreement sets outs certain events under which the above can be released to a licensed user of the software (‘the Licensee’). For example if the Licensor goes into bankruptcy or liquidation, a merger or acquisition takes place, or fails to properly maintain the software or perform under the Licence Agreement.
In today’s day and age and due to the technological advancements in the IT industry more and more businesses are reliant upon third parties to supply bespoke software for their needs and to provide a 24/7 maintenance service for the same. Such an agreement is therefore essential in order to protect the Licensee from the risk that the Licensor fails to provide the level of service agreed between them or if the Licensor becomes bankrupt or the business is put into receivership. In such an aggressive environment this can provide the Licensor with a competitive advantage in marketing his product.
Why should a typical Licensor consider placing source code in Escrow?
Placing source code in Escrow will help market the software and a Licensors’ services better. The Licensee will gain confidence in the business and will feel safe in the knowledge that if one of the events discussed above occurs then he will be safe. The Licensee will be able to take the source code to any other software designer/ programmers and with this code they will be able to add and amend, fix, any issues and essentially have the Licensee up and running in little time, therefore ensuring continuity of business.
Having said that software developers take pride in their ingenious work and invest a great deal of time, effort and resources in designing something bespoke for a client and in attempting to gain a competitive edge over others in their field/ industry. It is therefore understandable that they will be reluctant to release the source code to a Licensee.
A compromise to this is the Software Escrow Agreement.
We can draft a Software Escrow Agreement for you and advise on the contents of such agreements. We can arrange to store the material in escrow. If you are involved in the development/ licensing or simply use of software or other bespoke technology then you would need the protection afforded by having such an agreement in place. All Licensees’ should evaluate how critical the software, programme etc is to their business to put into context the importance of this agreement.