Investment protection plays a particularly important role with customised software, because if the provider goes out of business due to insolvency, takeover or company closure, further development or maintenance of the software was previously no longer possible or only possible with great difficulty. Against this background, in order to protect taxpayers’ money, the ‘EVB-IT? (Supplementary Contract Terms for the Procurement of IT Services) have now been adapted to include a key passage.
These model contracts, which were formulated in cooperation with the relevant manufacturers’ associations and are recommended for public sector tenders, now also include the option of demanding software escrow.
- Supplementary contract terms for the creation of an IT system Section 17 / page 19
- Instructions for using the Supplementary contract terms for the creation of IT systems
Section 17.2 / page 32 - -> Submission to the KBSt editorial team dated 7 November 2007
- EVB-IT System Contract
Section 17.2 / page 37
In this case, all providers of customised software or individually adapted standard software must deposit the source code of their programmes with a trustee if they wish to be considered for the award of contracts.
An escrow agent is usually engaged to handle this fiduciary storage. This agent keeps a copy of the source code for the manufacturer and user. On receipt of the source code, the escrow agent checks whether it is suitable for subsequent software maintenance and controls the updating of the source code. If a risk event occurs, the source code is handed over to the user. Everyone involved benefits from this system, as the manufacturer knows that his intellectual property is protected and the user significantly reduces the risk to his investment.