BarbriSFCourseDetails
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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Thursday, September 30, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will provide counsel with best practices on drafting source code escrow agreements, particularly when the business utilizes a software-as-a-service solution. The panel will address how providers are more frequently including source code escrow in their form subscription agreements to appeal to prospective customers wary of business continuity risks. The panel will also advise attorneys for consumers in assessing the risk of onboarding a SaaS solution from the actual, practical transitioning of the application, data center, and hosting environment in the event of a release condition that may be more catastrophic than the downtime itself.

Faculty

William S. Galkin
Attorney
Galkin Law, LLC

Mr. Galkin is an information technology and internet lawyer who has dedicated his legal practice to representing internet, e-commerce, information technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to startup, emerging, established and multinational corporations on their core commercial transactions including corporate formation and transitions, intellectual property, technology and software development, licensing, transfer, and distribution,  regulatory compliance, as well as agreements for online businesses, including, SaaS offerings, website terms of use, privacy policies,  development agreements, affiliate agreements and sweepstakes/contest rules and compliance. Mr. Galkin’s broad experience gained during more than 20 years in practice allows him to provide cutting-edge, creative and efficient solutions to complex problems.

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Brandon Woods
Partner
Troutman Pepper Locke LLP

Mr. Woods’ practice includes counseling and representing public and private companies in the areas of information technology, commercial transactions, outsourcing, information security and privacy, software development and licensing, international mergers and acquisitions, and general corporate counseling. Prior to the practice of law, he worked for leading international companies in the software and technology related fields for more than twelve years. Mr. Woods’ experience in application development, software management, technology consulting, and project management has provided a strong technical background for his legal practice. While working in-house as a legal associate for an international software and service provider, Mr. Woods’ work focused on software vendor contracts, negotiation of software and service licensing, and filings under the Securities Acts of 1933 and 1934.

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Description

A software escrow is a deposit of source code of software and other materials with a third-party escrow agent. Because software developers typically make a significant portion of their profit on recurring maintenance contracts instead of the basic license fees, often software developers will forego basic license fees and focus instead on ensuring that the licensee is captive for longer periods using a maintenance contract, which may include services in addition to maintenance of the code itself.

Counsel for developers drafting software escrow agreements must consider the risks of releasing the source code from escrow and minimize potential lost business. As a part of this risk assessment, the software developer will need to maintain flexibility on circumstances where source code would not be released from escrow due to appropriate business decisions. Counsel for licensees must account for the risk of insolvency of the developer or acquisition by another company.

As part of developing an enforceable software escrow agreement, the parties must identify and agree on the escrow agent. Key in determining who to select as a software escrow agent is that they are an independent third party unaffiliated with the software developer and have experience in administering source code escrows. The parties must consider if the complete source code of the licensed software goes into the escrow, along with associated materials such as documentation, software libraries, and appropriate third-party items, and what the retention of the data entails. Finally, the parties need to be careful in their license to differentiate which payments are for using the licensed software and related intellectual property and which for maintenance.

Listen as our expert panel discusses the complexities of software escrows as a vital part of a software purchaser's intellectual property plan and strategy. The panel will provide best practices for contracts to provide access to source code if the software developer cannot further maintain a code critical for a licensee.

Outline

  1. Software escrow agreements
    • Risk assessments for software developers
    • Risk assessment for licensees
    • Data retention and support documentation
      • Data breach policies
    • Allocation of payments
  2. Best practices

Benefits

The panel will review these and other relevant topics:

  • How best can counsel drafting software escrow agreements allocate risks between developers and licensees?
  • How can developers address lost business and release the source code in software escrow agreements?
  • What should licensees do in the event of insolvency of the developer during the life of the software escrow agreement?
  • What terms are needed to clarify data retention and the possible additional documentation that support a software escrow agreement?