Under these new rules there are some of the clauses that are considered illegal at all times and therefore null and void: when preparing an audit, it is therefore important to collect all the contractual documents and represent the contractual framework, as this determines the rights and obligations of the donor and the licensee. Once the parties have agreed on the scope of the audit and the timing, the software provider or an external audit firm shall conduct the audit on its behalf or representatives of the industry business group shall conduct the audit. Where the audit is carried out by a third party on behalf of the seller or by representatives of the industrial business group, the audited entity shall negotiate and enter into a confidentiality agreement with the relevant third party to ensure that all proprietary information disclosed to the third party during or as part of the audit process is strictly confidential. The statutory auditor should, of course, have the right to disclose the results of the audit to his client; However, it is important that the audited body reserves the right to verify and comment on the results of the audit before they are submitted to the software manufacturer. (3) Methods and tools: clarification of the measurement of the licence stock according to the licensing model (e.g.B. system capacities, number of installations, type of users; the possibility of limiting audits to samples; Use of scanning tools (even provided by the customer or made available by the software manufacturer) A software license agreement is usually not just an agreement or document. Rather, it is a patchwork of many documents, including service contracts (master), product terms, order forms, license guidelines, etc. If the review of the licence reveals that there is or may exist a licence deficit, the parties will often enter into negotiations and enter into settlement agreements that may occur in different forms. However, it is important to consider the scope of such an agreement. The parties intend to settle the past dispute and waive all rights, rights and claims; and/or do they want to fill the license gap for the future? Of course, the former provides greater legal certainty, as this scenario will definitively settle the dispute.
In addition, software license agreements are rather « dynamic ». For example, licensees may order new products or services or modify existing products or services. Related companies may have the right to order products or services under a framework contract. And there are many other situations that may change the contractual framework or, at the very least, require such a change, but do not yet result in it. The quintessence: Be prepared to insert appropriate audit provisions into your software licenses. They save you a lot of trouble and money! A: The most common error we encounter in software audits is the failure to compile and create accurate installation information. In addition, some clauses are considered illegal, unless proven otherwise. This is the case, for example, with clauses limiting the evidence available to the other party. If you have received a request for a software audit from your software vendor or one of the professional organizations representing software vendors, such as. B the Software and Information Industry Association (SIIA)1 or the Business Software Alliance (« BSA »)2, you are not alone. Over the past five years3, software audits have become an increasingly common tool for recovering lost revenue for software vendors. According to a survey published in December 2012 by the International Data Corporation (« IDC »), 5,64% of the 334 companies surveyed had been audited in the previous 18 to 24 months or had undergoed a licensing exam, 36% had been audited twice during that period, and 10% had been audited more than three times.6 The companies surveyed were the most frequently audited by Microsoft (51%).
followed by Oracle (27%), IBM (24%), SAP (22%), Adobe (19%), Symantec (12%) and other vendors (24%).