User Documentation & Escrow Agreeements -
Software Licence Agreements and Software Development Contracts - Part 7

Documentation Requirements

As businesses become more sophisticated in respect to the delivery of computer software, so does the requirement for cogent user documentation.

This should be a minimum requirement for packaged and commissioned software. In the event that the intellectual property rights are to be assigned to the commissioner of the software, delivery of design documents, project management documents and user requirements documents are likely to be required to be delivered at the conclusion of the development project, to enable the commissioner of the software to develop the software in its own right.

Usually there is no commercial reason to grant rights to access these development documents where the software is subject to a package licence, or where the licensee is simply entitled to use the software.

Training

Training may take a variety of forms. In the case of commissioned software, the software supplier may need to ‘train the trainer’ of the licensee as a minimum requirement, or for additional fees, conduct formal training sessions for end users. Much depends on the complexity of the software and computer literacy of the intended user base.

Escrow Arrangements

Escrow agreements are geared to protect the licensee paying a software supplier to design and construct software that meets their particular needs. These agreements are relied upon when the software house loses the means to continue to support the software whether through liquidation or lack of will. Escrow contracts are premised on the state of affairs that the licensee is never in possession of the source code, and to that extent, the licensee is exposed to the risk that if the software supplier or software house fails, they have recourse to the source to maintain and develop that source code. The conditions for release of the software to the licensee may be made as particular as the parties wish to make them. The more formal flavour of escrow agreements involves an independent trusted third party who specialise in providing escrow services. They take possession of the source code for the software, and undertake by contract to release the source code to the licensee only in the specified circumstances. The licensee gains some comfort in managing their risk in investing in the software development in the first instance.