4. OSE Symposium
Speaker: Dr. Lars Lensdorf (Frankfurt am Main)
Moderator: Attorney Christian Kast (Munich)
Dr. Lensdorf focused on escrow as part of risk management in outsourcing contracts. He emphasized that the escrowing of software is particularly important in the case of often very complex outsourcing projects. The growing awareness of the personal responsibility of management and the consideration of regulatory requirements (e.g. Basel II, KWG, MaRisk) have also increased awareness of this point. By depositing the source code, investment security, loss of know-how and protection in the event of contract termination can be achieved, particularly in outsourcing projects.
After an overview of the individual forms of outsourcing, in each of which the specific significance of storage was examined in more detail, the speaker came to the conclusion with regard to the type of software to be stored that the degree of individualization of the software in use is particularly important. The greater this is, the more important the deposit is. Especially in complex outsourcing projects, where third-party software is often used, there are increased risks for the customer. In particular, the question arises as to who concludes the escrow agreement with the third party and who can assert any claims for restitution.
In connection with the forms of escrow, the speaker concluded that the structure in individual cases depends heavily on the extent to which standard applications or customer-specific software is used. It is also advisable to consider the structures of the BGH ruling of November 17, 2005 (case reference: IX 162/04) when formulating the escrow agreement (granting of rights subject to a condition precedent, no explicit link to the insolvency case, appropriate consideration).
Dr. Lensdorf summarized his theses with a look at alternative or cumulative security concepts in the context of outsourcing projects. He pointed out that in practice, due to the complexity of the projects, in addition to a deposit, which should definitely be considered, accompanying measures should also be taken, such as the acceptance of a letter of comfort or the definition of comprehensive documentation obligations.